Court of Appeal (WA)|2007-06-12|Before: Lure JA

1 McLURE JA: The appellant appeals from an order made by Le Miere J on 10 August 2005 dismissing its application under s 31 of the Surveillance Devices Act 1998 (WA) ("the Act") for an order allowing publication of a record of a private conversation made by a listening device and an optical surveillance device.

2 The appellant is a licensed holder of a commercial television station in Perth. On 20 July 2005 a reporter or producer with the appellant's current affairs programme was approached by a woman identified as "M". M was employed on a casual basis as a receptionist/data input processor by the respondent company. M became pregnant and informed the general manager of the respondent of her situation. On 18 July the general manager told M that after her shift on 20 July the respondent would be replacing her. She asked the general manager why he was terminating her. According to M the general manager said words to the effect that because of the need to go up and down the stairs to the office she was a liability because of her pregnancy. According to the general manager he said words to the effect that it was an occupational health and safety issue. Both M and the general manager agree that he said he did not have any problems with her work. On 19 July she was given a letter of termination which stated she would be terminated as of 21 July 2005 but stated no grounds for the termination.

3 Subsequently the producers of the current affairs programme enquired whether M would go back to the respondent with a hidden camera and ask the general manager to explain why her employment had been terminated. M agreed to do so. On 20 July M went to the respondent's business premises and spoke to the general manager. Her discussion with him was recorded on videotape using the hidden camera. Thereafter the appellant applied for an order under s 31 of the Act that it be permitted to broadcast the conversation and activity recorded by the hidden camera. The primary Judge dismissed the application and declined to make any order as to costs.

4 The general scheme of the relevant provisions of the Act is as follows. Section 5 and s 6 prohibit a person using a listening device or optical surveillance device to record a private conversation or private activity, including a conversation or activity to which that person is a party. It is a criminal offence to breach the prohibitions in s 5 and s 6. The terms "private conversation" and "private activity" are defined in s 3 of the Act as follows:

"'private activity' means any activity carried on in circumstances that may reasonably be taken to indicate that any of the parties to the activity desires it to be observed only by themselves, but does not include an activity carried on in any circumstances in which the parties to the activity ought reasonably to expect that the activity may be observed;

'private conversation' means any conversation carried on in circumstances that may reasonably be taken to indicate that any of the parties to the conversation desires it to be listened to only by themselves, but does not include a conversation carried on in any circumstances in which the parties to the conversation ought reasonably to expect that the conversation may be overheard;"

5 It was common ground that the conversation and interview between M and the general manager was a private activity and private conversation.

6 However, the prohibitions in s 5 and s 6 are subject to a number of exceptions. Subsection 5(3) provides that the prohibition against using a listening device does not apply to the use of a listening device by or on behalf of a person who is a party to a private conversation if, amongst other things, a principal party to the private conversation consents to that use and the use is reasonably necessary for the protection of the lawful interests of that principal party. "Principal party" is defined in s 3 to mean, in relation to a private conversation, a person by or to whom words are spoken in the course of the conversation and, in relation to a private activity, a person who takes part in the activity. Subsection 6(3) is in similar terms in relation to the use of an optical surveillance device.

7 Further, the prohibitions in s 5 and s 6 on the use of a listening device or an optical surveillance device do not apply to the use of such devices in accordance with Pt 5 of the Act. Part 5, which includes s 26 and s 27, deals with the use of surveillance devices in the public interest. The term "public interest" is defined in s 24 to include "the interests of national security, public safety, the economic well-being of Australia, the protection of public health and morals and the protection of the rights and freedoms of citizens".

8 Section 26(1) provides that a person who is a party to a private conversation may use a listening device to record the private conversation if a principal party to the private conversation consents to that use and there are reasonable grounds for believing that the use of the listening device is in the public interest. Subsection 26(2) provides that a person who is acting on behalf of a party to a private conversation may use a listening device to record the private conversation if a principal party to the private conversation consents to that use and there are reasonable grounds for believing that the use of the listening device is in the public interest. Subsection 27(1) and subs 27(2) contain similar provisions in relation to the use of optical surveillance devices.

9 The primary Judge found that the prohibitions in s 5 and s 6 of the Act did not apply because M had consented to the use of the devices and the use was reasonably necessary for the protection of her lawful interests and further because the use of the devices was in accordance with s 26 and s 27 in Pt 5 of the Act. Those findings are not challenged.

10 Section 9 and s 31 relate to the publication of a report or record of a private conversation or private activity that has come to a person's knowledge as a direct or indirect result of the use of the devices. Section 9 provides for a prohibition and exceptions thereto. It provides:

"(1) Subject to subsection (2), a person shall not knowingly publish or communicate a private conversation, or a report or record of a private conversation, or a record of a private activity that has come to the person's knowledge as a direct or indirect result of the use of a listening device or an optical surveillance device.

Penalty:

(a) for an individual: $5 000 or imprisonment for 12 months, or both;

(b) for a body corporate: $50 000.

(a) where the publication or communication is made -

(i) to a party to the private conversation or the private activity;

(ii) with the express or implied consent of each principal party to the private conversation or private activity;

(iii) to any person or persons authorised for the purpose by the Commissioner of Police, the Corruption and Crime Commission or the Chair of the Board of the Australian Crime Commission;

(iiia) to a designated Commission or to any person or persons authorised for the purpose by a designated Commission;

(iv) by a law enforcement officer to the Director of Public Prosecutions of the State or of the Commonwealth or an authorised representative of the Director of Public Prosecutions of the State or of the Commonwealth;

(v) in the course of the duty of the person making the publication or communication;

(vi) for the protection of the lawful interests of the person making the publication or communication;

(vii) in the case of the use of a listening device or an optical surveillance device in the circumstances referred to in section 5(3)(d) or 6(3)(b)(iii), as the case requires, in the course of reasonable action taken to protect the lawful interests of the principal party to the conversation or activity who consented to the use of the device;

(viii) in accordance with Part 5; or

(ix) in the course of any legal proceedings;

(b) where the publication or communication is made to a member of the police force of the State or of another State or a Territory in connection with -

(i) an indictable drug offence or an external indictable drug offence; or

(ii) any other indictable matter of such seriousness as to warrant the publication or communication;

or

(c) where the person making the publication or communication believes on reasonable grounds that it was necessary to make that publication or communication in connection with an imminent threat of serious violence to persons or of substantial damage to property.

(3) Subsection (2) only provides a defence if the publication or communication -

(i) in the public interest;

(ii) in the performance of a duty of the person making the publication or communication; or

(iii) for the protection of the lawful interests of the person making the publication or communication;

(b) is made to a person who has, or is believed on reasonable grounds by the person making the publication or communication to have, such an interest in the private conversation or activity as to make the publication or communication reasonable under the circumstances in which it is made;

(c) is made by a person who used the listening device to record, monitor or listen to that conversation or an optical surveillance device to record or observe that private activity in accordance with a warrant or an emergency authorisation issued under Part 4; or

(d) is made by an authorised person employed in connection with the security of the Commonwealth under an Act of the Commonwealth relating to the security of the Commonwealth."

11 The specific exceptions in subs 9(2) are narrowly confined and, with the possible exception of par (ix), do not permit communication to the public at large. The specific exceptions are further narrowed by the requirements in subs 9(3).

12 Section 31 provides:

"(1) A judge may make an order that a person may publish or communicate a private conversation, or a report or record of a private conversation, or a record of a private activity that has come to the person's knowledge as a direct or indirect result of the use of a listening device or an optical surveillance device under Division 2 or 3, if the judge is satisfied, upon application being made in accordance with section 32, that the publication or communication should be made to protect or further the public interest.

(2) A judge, when making an order under subsection (1), may impose such conditions or restrictions as the judge considers necessary in the circumstances.

(3) Upon an application made under section 32 a judge may make an order that a report or record of a private conversation, or a record of a private activity -

(a) be made available to any person or destroyed;

(b) be delivered to -

(i) the police force of the State or of another State or a Territory;

(ia) the Corruption and Crime Commission;

(ib) the Parliamentary Inspector of the Corruption and Crime Commission;

(ii) a designated Commission;

(iii) the Australian Federal Police; or

(iv) the Australian Crime Commission;

or

(c) be kept in the custody of the court if the judge is satisfied that it is necessary to protect or further the public interest."

13 An application for an order under s 31 must not be heard in open court (s 33).

14 The primary Judge construed s 31(1) as conferring upon a judge a discretion to make a publication order if the judge is satisfied that the publication should be made to protect or further the public interest. Addressing the first stage of the statutory exercise which, on the primary Judge's construction of s 31, was a precondition to enlivening the discretion to approve publication, the primary Judge accepted that there is a public interest in broadcasting the recorded interview and a public interest in maintaining the privacy of the general manager by not broadcasting the interview. He found there was a strong case that the respondent had contravened the Equal Opportunity Act 1984 (WA) but that the general manager made the decision to terminate M because he considered her continued employment on the respondent's premises to be a risk to her health and safety. Weighing the competing public interests he concluded he was not satisfied that the publication should be made to protect or further the public interest.

15 In reaching this conclusion the primary Judge rejected the appellant's submission that the general manager's right to privacy is not a right or freedom the protection of which falls within the public interest. However, the primary Judge said in the alternative that if it was not relevant to the public interest, it was properly a matter to be taken into account in the exercise of his discretion at the second stage of the statutory exercise. In exercising his discretion against making an order he took into account "the public interest in protecting the privacy of the general manager's conversation and the damage that is likely to be done to the general manager and the company by publication of the interview".

16 There were 11 grounds of appeal, two of which (grounds 1 and 5) have been abandoned. The remaining grounds of appeal overlap. They are in substance that the primary Judge erred:

in taking into account an irrelevant consideration, being the interests of the general manager and the respondent in maintaining the privacy of the conversation between the general manager and M, that being a private interest (grounds 2 and 3);
in construing s 31 as conferring a discretion to permit publication once the judge was satisfied that the publication should be made to protect or further the public interest (grounds 4 and 11);
in concluding that the fear of public disclosure of a private conversation might well have a chilling effect on private speech when there was no evidence to sustain the conclusion (ground 6) which in any event is an irrelevant consideration (ground 7);
in taking into account an irrelevant consideration, being the general manager's subjective belief that he was not engaging in unlawful conduct (ground 8);
in concluding that the public interest in the publication of the recorded interview was much less where the recording itself does not record unlawful conduct (ground 9);
in taking into account an irrelevant consideration, being the effect which the publication might have upon the reputations of the general manager and the respondent (ground 10).

17 The respondent filed a notice of contention identifying what it describes as further relevant considerations which support the primary Judge's decision, said to be:

the "entrapment" of the general manager;
that the recordings were calculated to portray the general manager in a sinister manner and to sensationalise rather than provide a legitimate basis for public debate on matters said to be of public interest;
that no attempt was made by the appellant to interview the general manager and obtain his explanation for M's termination; and
that there was no reason why the issues said to be of public interest could not have been the subject of a programme without portraying the general manager in a way which suggested that he had acted unlawfully when that question had yet to be determined.

18 The respondent also filed a cross-appeal from the primary Judge's refusal to make a costs order in its favour.

19 The question in issue is whether the word "may" in the opening line of s 31(1) is used, not to give a discretion, but to confer a power which is to be exercised upon the judge being satisfied that the publication should be made to protect or further the public interest. As Windeyer J said in Finance Facilities Pty Ltd v Federal Commissioner of Taxation (1971) 127 CLR 106 at 134 - 135 (cited with approval in Leach v The Queen (2007) 81 ALJR 598 at [38]):

"This does not depend on the abstract meaning of the word 'may' but [on] whether the particular context of words and circumstance make it not only an empowering word but indicate circumstances in which the power is to be exercised - so that in those events the 'may' becomes a 'must'. Illustrative cases go back to 16[93]: R v Barlow. Today it is enough to cite Julius v Bishop of Oxford; and add in this Court Ward v Williams. But I select one other reference out of a multitude: Macdougall v Paterson. There Jervis C.J. said in the course of the argument 'The word "may" is merely used to confer the authority: and the authority must be exercised, if the circumstances are such as to call for its exercise'. And, giving judgment, he said:

'We are of opinion that the word "may" is not used to give a discretion, but to confer a power upon the court and judges; and that the exercise of such power depends, not upon the discretion of the court or judge, but upon the proof of the particular case out of which such power arises.'" [references omitted]

20 The decision as to whether a judge is satisfied that the publication should be made to protect or further the public interest is a discretionary decision as explained by the High Court in Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194. Gleeson CJ, Gaudron and Hayne JJ said in a joint judgment (at [19]):

"'Discretion' is a notion that 'signifies a number of different legal concepts'. In general terms, it refers to a decision-making process in which 'no one [consideration] and no combination of [considerations] is necessarily determinative of the result'. Rather, the decision-maker is allowed some latitude as to the choice of the decision to be made. The latitude may be considerable as, for example, where the relevant considerations are confined only by the subject matter and object of the legislation which confers the discretion. On the other hand, it may be quite narrow where, for example, the decision-maker is required to make a particular decision if he or she forms a particular opinion or value judgment." [references omitted]

21 The decision as to satisfaction on the public interest under s 31(1) falls in the narrow category. As the judge has latitude as to the decision on that subject, the correctness of the decision can only be challenged by showing error in the decision-making process as explained in House v The King [1936] HCA 40; (1936) 55 CLR 499 at 505. That is accepted by the parties.

22 The question then is whether, if the judge is satisfied that the publication should be made to protect or further the public interest, the judge has a separate or additional discretion to refuse to permit publication. In my view, the nature and content of the narrow discretion which requires the judge to be satisfied that the publication should be made to protect or further the public interest is inconsistent with an intention to grant a separate or additional discretion which would entitle the judge to refuse to order publication. If the judge is satisfied that the publication should be made to protect or further the public interest the judge must order publication. I would uphold grounds 4 and 11.

23 In order to determine whether a consideration is relevant or irrelevant it is necessary to construe s 31 in the context of the Act as a whole in order to identify the nature, scope and purpose of the power. The discretion under consideration is not unfettered but is narrowly circumscribed in both its terms and context. The Act makes it an offence for a person to knowingly publish a report or record of a private conversation or a record of a private activity that has come to that person's knowledge as a direct or indirect result of the use of covert devices. The Act does not prohibit the publication of the content of private conversations or private activities generally. Prior to the covert surveillance, M could have informed the appellant and the appellant's audience of what the general manager said to her about the termination of her employment without infringing the Act. She could also do so after the covert surveillance provided she had not refreshed her memory from the record of the covert devices.

24 Thus, the purpose of the Act is to prohibit the use of covert devices save in specified circumstances and to prohibit the publication of private information directly or indirectly obtained from the use of such devices save in specified circumstances.

25 The scheme of the Act in relation to the exceptions to the prohibitions is also relevant. The sections containing the prohibitions (s 5, s 6 and s 9) identify the exceptions to the prohibitions. There are specific exceptions as well as an exception where the use or publication is in accordance with Pt 5 of the Act. Part 5 will only be called in aid when the conduct does not fall within the specific exceptions nominated in the prohibition sections. The discretion in s 31 must be intended to cover situations not provided for in the specific exceptions in s 9. However, as previously noted, the specific exceptions in s 9 are narrowly confined and are primarily directed to situations which give rise to a public duty to communicate or a public interest in the receipt of the communication.

26 Further, it is significant that a breach of the prohibition against use or publication constitutes a criminal offence. What this and the scheme of the Act reflects is legislative acceptance that there is a strong public interest and public policy against the use, in relation to private conversations and private activity, of covert devices and the publication of such information obtained by the use of covert devices. The weight to be given to that public interest is dictated by the legislature. This strong public interest is also reflected in the requirement in s 31 that the judge be satisfied not simply that publication is in the public interest but that the publication should be made to protect or further the public interest. This requirement is consistent with the scope of the specific exceptions.

Interests of general manager and respondent (grounds 2, 3, 6 and 7)

27 The appellant contends that the primary Judge took into account the private interests of the general manager and the respondent when determining whether he was satisfied that the publication should be made to protect or further the public interest and that such private interests are irrelevant. The appellant relies on the primary Judge's reasons at [31], [40] and [43]. The primary Judge said (at [31]):

"There is also a public interest in not publishing the interview. There is a public interest in maintaining the privacy of private conversations and activity. A person living in Australia in 2005 has an expectation of privacy that extends to not having his or her private conversations and activities published to the public at large."

28 The primary Judge repeated that view in par 40 but added that the expectation may be conditional to some extent on the person's behaviour. He said a person who engaged in unlawful conduct should expect that his wrongful activities may not remain private. However, the primary Judge found (and relied on the fact) that the general manager did not believe he was engaging in unlawful conduct. In par 43 the primary Judge restated the view that there is a public interest in maintaining the privacy of the general manager.

29 It is apparent from the cited passages that the primary Judge directed his attention to and took into account the interest of members of the community in general and the general manager in particular in maintaining the privacy of private conversations and private activities as defined. In doing so he went outside the scope and purpose of the Act. The Act does not establish a general right to privacy in respect of private conversations and activities. Rather, it places significant limitations on (1) using covert means to access such information and (2) publishing information obtained by using covert means. The purpose of the Act is to restrict the use of covert devices and the publication of information obtained by that use. The consequence is that private conversations and private activities accessed by covert devices are protected. In summary, the focus of the Act is not the publication of the content of private information on which there is no restriction, unless it is directly or indirectly obtained by the use of covert means. Moreover, the general manager had no right to keep the content of his discussions with M private at common law: Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199.

30 As I understand its case, the appellant accepts that if the general manager or the respondent had a legally enforceable right to protect the content of the discussion (whether at common law or under the statute) there would be a public interest in upholding that right which should be taken into account in the Judge's assessment of whether he was satisfied that publication should be made to protect or further the public interest. That must be correct.

31 However, the fact that the general manager may have no presently enforceable legal right to prevent the disclosure of the content of his conversation with M may not justify characterising the general manager's interest as a purely private interest. But that is not the interest protected by the Act and it is not a relevant consideration in the evaluative exercise to be undertaken by the primary Judge. The question for the judge is whether, notwithstanding the public interests reflected in the general prohibition against the use of covert devices to access private conversations, the publication should be made to protect or further the public interest. I would uphold grounds of appeal 2 and 3.

32 Further, ground 7 asserts that the primary Judge incorrectly focused on the expectation of privacy rather than the use of covert means to access private conversations and private activities. Accordingly, I would also uphold ground 7. In the circumstances it is unnecessary to determine ground 6.

33 The primary Judge's finding that the general manager's belief he was acting lawfully is related to the reasonableness of the general manager's expectation that his privacy would be respected. It is irrelevant in that context. However, it is a relevant consideration in determining whether publication was necessary to protect or further the public interest. I would dismiss ground 8.

34 The appellant challenges the primary Judge's alleged conclusion that the public interest in the publication of the recorded interview was much less where the recording itself does not record unlawful conduct. The primary Judge accepted that the interview raised issues concerning equal opportunity and unfair dismissal laws and that promoting debate on those subjects is in the public interest. He continued (at [42]):

"However, the applicant may broadcast 'M's' story and promote debate on those issues without publishing the interview and conversation between her and the general manager. The conduct of the respondent and general manager recorded on the videotape is not unlawful conduct, at most it is evidence from which it might be inferred that the company had engaged in unlawful conduct when it dismissed 'M'. I am aware that television audiences look for more than the public interest, they also look for material in which they are interested. The video recording would add to viewer interest in the story. I accept that publication of the recorded interview does not cease to be in the public interest because the applicant could broadcast a story about the unlawful termination of the employee's employment without broadcasting the recorded interview. However, the public interest in the publication of the recorded interview is much less where the recording itself does not record unlawful conduct and 'M's' story may be published without the recording."

35 The ground of appeal misstates the reasons. The primary Judge's conclusion was based on two matters including the fact that M's story may be published without the recording. Both of those matters together do significantly reduce the public interest in the publication of the recording. I would dismiss ground 9.

36 The primary Judge had regard to the effect which the publication might have on the reputation of the general manager when considering the separate and additional discretion which I have concluded does not arise on the proper construction of s 31. The primary Judge did not take these matters into account in assessing the public interest at the first stage of the exercise. Accordingly, although there is error it does not affect the result.

37 I have upheld grounds of appeal 2, 3, 4, 7 and 11. The errors in grounds 2, 3 and 7 are material and require the primary Judge's decision to be set aside. As there is no challenge to any of the factual findings made by the primary Judge, this Court has the necessary materials to enable it to determine the matter afresh.

38 A matter may be of public interest notwithstanding that it involves the rights and interests of a particular individual. Thus, although the conversation between M and the general manager related to the particular facts surrounding the termination of M's employment, it raised broader issues of public interest concerning equal opportunity and unfair dismissal. However, that does not put this conversation or activity into an unusual category. Many private conversations or activities as defined would directly or indirectly give rise to issues of public interest. Although that is a necessary condition of the exercise of the power under s 31, it is itself insufficient to satisfy the statutory criterion.

39 In this case the conversation and activity was private because the circumstances indicated that privacy was the objectively determined desire of the general manager. His desire for privacy was not for (or to further) any unlawful or improper purpose and did not involve any misuse of the privacy so desired. The general manager's purpose was to explain to M in good faith why her services had been terminated. Such conduct is to be encouraged rather than discouraged. The prospect of appearing on "candid camera" is likely to operate as a disincentive. The fact that the general manager may turn out to be mistaken in his belief that he was acting lawfully and in M's best interests does not weigh heavily in the public interest because that will be determined in the appropriate forum.

40 Another relevant factor is the scope of the publication. The appellant proposes to publish the covertly obtained private information to the community at large. This will of course have the result of widening the debate on the public interest issues arising from the private conversation and activity. However, as the primary Judge correctly observed, the appellant could have raised exactly the same issues without instigating the use of covert devices. It may be the case that the appellant could more effectively stimulate audience interest in the issues by using the covertly obtained images and audio. That may be a reflection of the greater entertainment value in witnessing people who are unaware of being filmed. However, I do not regard that as contributing in any meaningful way to the public interest. If the matters relied on by the appellant satisfied the statutory criterion in s 31, there could be widespread use by the media of covertly obtained private information. That outcome is not consistent with the language and purpose of the Act.

41 In my view, the evidence falls well short of providing a proper foundation for a conclusion that the proposed publication should be made to protect or further the public interest. Accordingly, I would dismiss the appeal.

42 The primary Judge refused in the exercise of his discretion to make an order for costs in favour of the respondent. The respondent contends the primary Judge erred:

(a) in failing to give any or any proper weight to the general rule that costs follow the event;

(b) in taking into account that the application (i) involved issues of public interest rather than private interests; (ii) was reasonably brought; and (iii) could have been dealt with ex parte with possibly the same result;

(c) in failing to have any or any sufficient regard to the extent to which the respondent's interest in privacy and its reputation were at stake.

43 This being an appeal from a discretionary decision, the respondent must demonstrate that the primary Judge made a material error of law or fact or that the result is so plainly unreasonable that error can be inferred: House v The King (1936) 55 CLR 499 at 505.

44 It is apparent from the transcript that the primary Judge did take into account the matters referred to in (a) and (b) to conclude that there should be no order as to costs. In my respectful opinion, the fact that the application could have been dealt with ex parte with possibly the same result is not a relevant consideration. The application did not proceed ex parte. The primary Judge ordered that the respondent and the general manager be given notice of the application because he was not persuaded they would be unable to make a contribution which would affect the outcome. The respondent adduced evidence and made submissions which the primary Judge took into account and relied on in reaching his decision.

45 As the primary Judge took into account an irrelevant consideration, his decision on costs should be set aside and this Court should re-exercise the discretion. It is relevant that the issue before the Court raised matters of public interest in which event the usual rule as to costs may not apply: Oshlack v Richmond River Council (1998) 193 CLR 72. However, although the application raised public interest issues, the result of the application had the capacity to advantage the appellant in the conduct of its business and to detrimentally affect the business of the respondent. In those circumstances, I am satisfied that the ordinary rule that costs follow the event should apply. Accordingly I would order that the appellant pay the respondent's costs below to be taxed.

46 For these reasons I would dismiss the appeal and uphold the cross-appeal.

47 PULLIN JA: I agree with the reasons of McLure JA and with the additional reasons of Buss JA in relation to grounds 4 and 11.

48 BUSS JA: The material facts, the learned primary Judge's reasoning and the grounds of appeal are set out in the reasons of McLure JA.

49 I agree with McLure JA, for the reasons she gives, that if a Judge hearing an application for an order under s 31(1) of the Surveillance Devices Act 1998 (WA) ("the Act") is satisfied that the publication or communication in question should be made to protect or further the public interest, the Judge must order publication or communication. I agree with her Honour that grounds 4 and 11 have been made out.

50 In O'Sullivan v Farrer (1989) 168 CLR 210, Mason CJ, Brennan, Dawson and Gaudron JJ said, at 216:

"... the expression 'in the public interest', when used in a statute, classically imports a discretionary value judgment to be made by reference to undefined factual matters, confined only 'in so far as the subject matter and the scope and purpose of the statutory enactments may enable ... given reasons to be [pronounced] definitely extraneous to any objects the legislature could have had in view': Water Conservation and Irrigation Commission (NSW) v Browning [(1947) [1947] HCA 21; 74 CLR 492 at p 505], per Dixon J."

Accordingly, a question about "the public interest" will rarely have only one dimension. See McKinnon v Secretary, Department of Treasury (2006) 80 ALJR 1549 per Hayne J at 1561 - 1562 [55].

51 The categories of public interest are not closed, and a decision under s 31(1) of the Act as to whether a particular publication or communication should be made to protect or further the public interest involves a judgment about which reasonable minds may well differ. Compare Right to Life Association (NSW) Inc v Secretary, Department of Human Services and Health [1995] FCA 1060; (1995) 56 FCR 50 per Lockhart J at 59; McKinnon at 1561 - 1562 [55].

52 An appeal court will not substitute its own discretionary value judgment for that of a Judge who has made or refused to make an order under s 31(1) of the Act unless the court is satisfied that the Judge at first instance has made an error in arriving at the judgment which s 31(1)

contemplates. See House v The King [1936] HCA 40; (1936) 55 CLR 499 per Dixon, Evatt and McTiernan JJ at 504 - 505; Re Thompson's Application; Hannaford v Fysh [1964] Tas SR 129 per Neasey J at 143 - 144.

53 Section 31(2) of the Act provides that a Judge, when making an order under s 31(1), may impose such conditions or restrictions as the Judge considers necessary in the circumstances. If a Judge is satisfied that the publication or communication in question "should be made to protect or further the public interest", within s 31(1), he or she may be so satisfied if, and only if, certain conditions or restrictions are imposed under s 31(2). Alternatively, a Judge may be satisfied, in terms of s 31(1), without imposing any conditions or restrictions under s 31(2).

Scope and purpose of the power under s 31(1) of the Act

54 I agree with McLure JA's analysis of the scope and purpose of the power under s 31(1) of the Act, subject to the observations set out at [55] - [57] below.

55 Section 9(1) of the Act prohibits a person from knowingly publishing or communicating a private conversation, or a report or record of a private conversation, or a record of a private activity, that has come to the person's knowledge as a direct or indirect result of the use of a listening device or an optical surveillance device. Section 9(2) contains specified exceptions to the prohibition in s 9(1). Those exceptions include s 9(2)(a)(viii), which provides that s 9(1) does not apply where the publication or communication is made in accordance with Pt 5. Section 9(3) is a significant provision in that it qualifies the exceptions specified in s 9(2). In particular, s 9(3) states that s 9(2) only provides a defence if the publication or communication satisfies (at least) one of the conditions in s 9(3). For example, by s 9(3)(a), s 9(2) provides a defence if the publication or communication is not more than is reasonably necessary:

"(i) in the public interest;

(ii) in the performance of a duty of the person making the publication or communication; or

(iii) for the protection of the lawful interests of the person making the publication or communication;"

The term "public interest" in s 9(3)(a)(i) is not defined in the Act. The definition of "public interest" in s 24 applies only for the purposes of Pt 5.

56 Section 9(2)(a)(viii) of the Act, which provides that s 9(1) does not apply where the publication or communication is made in accordance with Pt 5, enables a person, who has knowingly published or communicated a private conversation etc that has come to the person's knowledge as a direct or indirect result of the use of a listening device or an optical surveillance device, to rely upon an order made by a Judge under s 31(1) as a defence to a prosecution under s 9(1) if the publication or communication in question was authorised by the Judge's order. By s 9(3), a publication or communication made in accordance with Pt 5 (that is, relevantly, in accordance with an order made by a Judge under s 31(1)) is a defence only if the relevant publication or communication satisfies (at least) one of the conditions in s 9(3). In my opinion, however, if a Judge makes an order under s 31(1) he or she must necessarily be satisfied that the publication or communication in question "should be made to protect or further the public interest" and, in those circumstances, a person making a publication or communication in accordance with that order would satisfy the condition in s 9(3)(a)(i); that is, the relevant publication or communication, if made in accordance with the Judge's order, would be "not more than is reasonably necessary ... in the public interest".

57 In my opinion, Pt 5 of the Act may be called in aid not only when a proposed publication or communication plainly does not fall within the specific exceptions to the statutory prohibition, but also where there is doubt as to whether the proposed conduct falls within one of the exceptions in s 9(2) or whether a condition in s 9(3) will be satisfied.

Interests of the general manager and the respondent (Grounds 2, 3, 6 and 7)

58 I agree with McLure JA, for the reasons she gives, that grounds 2 and 3 have been made out.

59 The general object of the Act was summarised by the Minister in his Second Reading Speech:

"The Surveillance Devices Bill will greatly assist police and other law enforcement agencies in the detection and prosecution of offences through the use of surveillance devices. The Bill also provides restrictions on the use of surveillance devices in the interests of the privacy of citizens of this State."

See Western Australia, Parliamentary Debates, Legislative Assembly, 21 October 1997, 7100 (Mr Day, Minister for Police).

60 In my opinion, the critical question for a Judge, in considering an application for an order under s 31(1), is whether, notwithstanding the public interest reflected in the general prohibition which the Act imposes on the publication or communication of private conversations or activities recorded or monitored with surveillance devices, and the limited and conditional exceptions to the general prohibition, the publication or communication in question should be made to protect or further the public interest.

61 I agree with McLure JA, for the reasons she gives, that ground 7 has been made out. I also agree with her Honour that, in the circumstances, it is unnecessary to determine ground 6.

62 I agree with McLure JA, for the reasons she gives, that ground 8 fails.

63 I agree with McLure JA, for the reasons she gives, that ground 9 fails.

64 I agree with McLure JA in relation to ground 10.

65 I agree with McLure JA, for the reasons she gives, that, in the present case, the evidence falls well short of providing a proper foundation for a conclusion that the proposed publication should be made to protect or further the public interest.

66 I agree with McLure JA, for the reasons she gives, that the ordinary rule that costs follow the event should apply and that, accordingly, the appellant should be ordered to pay the respondent's costs below to be taxed.

67 I would dismiss the appeal and allow the cross-appeal.

Surveillance Devices Act 1998(WA)

Opportunity Act 1984

CHANNEL SEVEN PERTH PTY LTD -v- "S" (A Company) [2007] WASCA 122 (12 June 2007)

At a glance

Court

Decision date

Before

Source

Judgment (102 paragraphs)

Interests of general manager and respondent (grounds 2, 3, 6 and 7)

Scope and purpose of the power under s 31(1) of the Act

Interests of the general manager and the respondent (Grounds 2, 3, 6 and 7)

Legislation Cited (3)

Cases Cited (9)