2. Recent legal developments

Updates and background for this project (Digest)

• Current regulation of surveillance
• Other legal developments since Report 98

CURRENT REGULATION OF SURVEILLANCE

2.1 Surveillance activity in Australia is regulated by a complex and, at times, confusing web of Commonwealth, State and Territory laws dealing variously with telephone intercepts and the use of surveillance devices. The coverage offered by each of these legislative schemes is currently piecemeal and inconsistent, and is largely geared towards the use of surveillance devices by law enforcement agencies. The Commonwealth and some States also have privacy statutes establishing principles regarding the collection, storage and use of personal information, which can include material obtained as a result of surveillance.

2.2 The Commission discussed the regulation of surveillance by statute and common law in detail in Chapter 1 of Report 98. The following section updates that information and focuses on two major developments: the struggle at Commonwealth level to find an appropriate means of regulating the interception of electronic communications, such as email; and the High Court decision concerning surveillance by the media in Australian Broadcasting Company v Lenah Game Meats Pty Ltd.¹

Division of legislative responsibility between the Commonwealth and the States and Territories

Interception of telecommunications

2.3 The Commonwealth Constitution gives the Commonwealth Government the power to regulate “postal, telegraphic, telephonic and other like services”.² This power is not exclusive to the Commonwealth, and co-exists with the residual powers of the States.³ The Commonwealth has used this power to enact the Telecommunications (Interception) Act 1979 (Cth) (“the Interception Act”), which prohibits, except where specifically authorised, the interception of communications passing over a telecommunication system.⁴ The Interception Act was originally introduced to prohibit unauthorised telephone tapping. In the intervening years, other communications, such as email and telephone text messages, may be transmitted through telephone lines, and so the scope of communications covered by the Interception Act has been extended to include conversations or messages in the form of speech, music or other sounds, data, text, visual images or signals, or in any other form or combination of forms.⁵ So far as telephone interceptions are concerned, it has been held that the Interception Act is intended to cover the field, thus displacing, by virtue of section 109 of the Constitution, any State legislation which might otherwise be applicable.⁶ The situation with the interception of other communications is less clear, but the safe assumption is that any communication intercepted during its passage across a telecommunications system would be regulated exclusively by Commonwealth law.

2.4 The Interception Act applies only to covert communications,⁷ and only to “live” communications intercepted whilst in transit. Thus, should a telephone conversation be recorded through the use of a tape recorder placed at the telephone receiver, this would be regulated by State or other Commonwealth surveillance laws since the surveillance of the communication occurred after it had completed its passage across the telecommunications system.⁸ Similarly, surveillance of delayed access message services, such as voicemail, once they have reached the inbox of, and/or have been stored on equipment operated by, the recipient, are not currently regulated by the Interception Act.⁹

Regulation of surveillance devices

2.5 The Commonwealth and each State and Territory has surveillance laws covering various devices and activity. Certain Commonwealth laws regulate the use of listening devices by specific Commonwealth organisations, such as the Australian Federal Police (“AFP”), customs officials, and the Australian Security Intelligence Organisation (“ASIO”).¹⁰ Recently, the Surveillance Devices Act 2004 (Cth) was passed by Commonwealth Parliament.¹¹ That Act incorporates and updates the surveillance provisions in the Australian Federal Police Act 1979 (Cth) and the Customs Act 1901 (Cth), described as being “outdated and inadequate in the face of progressively complex and covert criminal activity”.¹² The Act regulates the covert use of data and optical surveillance devices, as well as listening and tracking devices, and applies to authorised employees of the AFP, the Australian Crime Commission (“ACC”), and State and Territory Police investigating certain Commonwealth offences,¹³ or to the AFP and the ACC investigating State offences with a federal aspect.¹⁴ The Act does not affect the operation of State and Territory surveillance laws.

2.6 Originally, all States and Territories had legislation which regulated the use of listening devices, generally by prohibiting their use unless authorised under a judicial warrant or exempted from the need to obtain a warrant. Gradually, as technology developed, most of those listening device laws were amended to include other devices.¹⁵ For example, South Australia recently expanded the ambit of its Listening Devices Act to become the Listening and Surveillance Devices Act 1972 (SA), covering visual and tracking devices in addition to listening devices. Queensland has legislation which regulates the use of listening, tracking and visual surveillance devices by the police.¹⁶ Western Australia, Victoria and the Northern Territory have replaced their listening devices laws with broader surveillance legislation. The Surveillance Devices Act 1998 (WA) regulates listening devices, optical surveillance devices and tracking devices.¹⁷ In Victoria, the Surveillance Devices Act 1999 (Vic)¹⁸ regulates the same devices as its Western Australian counterpart, but also covers data surveillance devices (defined as those that are capable of being used to record or monitor the input of information into or the output of information from a computer), when used by law enforcement officers.¹⁹ The Surveillance Devices Act 2000 (NT) covers listening devices, optical surveillance devices, tracking devices and data surveillance devices.²⁰

2.7 In NSW, although the title of the LDA suggests that the legislation regulates only listening devices, its operation is slightly broader. “Listening device” is defined in the LDA to mean:

any instrument, apparatus, equipment or device capable of being used to record or listen to a private conversation simultaneously with its taking place.²¹

2.8 NSW also has legislation specifically regulating the use of covert video surveillance in the workplace. The Workplace Video Surveillance Act 1998 (NSW) enables employers to conduct video surveillance in the workplace if the employee has been given prior written notice of the surveillance, the surveillance cameras are clearly visible and there are visible signs notifying people that they may be under surveillance.²³ Surveillance that does not satisfy these criteria is considered covert video surveillance under the Act and is unlawful, unless an authorisation has been issued by a Magistrate.²⁴ A draft Bill amending this legislation has recently been released by the Government for public comment. The Workplace Surveillance Bill 2004 (NSW) aims at extending the scope of the 1998 legislation to include the regulation of covert camera, computer and tracking surveillance of employees by employers.²⁵ The provisions of this draft Bill are discussed in more detail in Chapter 5.

Privacy laws

2.9 There are Commonwealth and NSW statutes that regulate the use of personal data that relates to individuals. The Commonwealth Privacy Act 1988 (Cth) lays down strict Information Privacy Principles which Commonwealth government agencies must observe when collecting, storing, accessing and using personal information. In December 2001, the Privacy Act 1988 (Cth) was extended to apply National Privacy Principles²⁶ to certain private sector organisations.²⁷ This legislation and others²⁸ would, for example, cover data-matching which involves bringing together data from different sources and comparing it to identify people for further action or investigation.²⁹ The Privacy Act 1988 (Cth) contains various exemptions for certain agencies from the requirement to comply with the privacy principles, including an exemption for media organisations.³⁰

2.10 In NSW, the Privacy and Personal Information Act 1998 (NSW) contains a set of principles that regulate the way certain public sector agencies should deal with personal information. The principles do not apply to the private sector, and apply only to personal information, that is, any information that relates to an identifiable person. This definition covers not only traditional ideas of data storage such as paper files, but also such things as electronic records, video recordings, photographs, genetic material and biometric information, like fingerprints.³¹

Regulation of email and other electronic communications

2.11 As noted above, the regulation of telephone intercepts whilst the communication is in transit across a telecommunications system is the sole legislative responsibility of the Commonwealth. The situation is less clear regarding other communications carried by means of a telecommunications system. Although the Interception Act defines “communication” to include text or image-based material,³² it defines “interception” only in terms of “listening to or recording” communications, which seemingly has no application to text or other non-voice communications.³³ A number of questions have surrounded the issue of determining what communications are covered by the Interception Act, and at what point a communication can be deemed to have passed across a telecommunications system, and thus not be within the scope of the Interception Act. For example, has an email finished its passage along a telecommunications line if it has been received by an employer’s server, but has not yet reached the intended employee recipient? Similarly, what is the status of an email that is stored on the server of an Internet Service Provider (“ISP”), particularly where that email has not been accessed by the intended recipient?

2.12 The answers to these questions are significant for a number of reasons. First, determining the scope of the Interception Act provides clear guidance on when an interception warrant is necessary in order to access electronic communications. Secondly, and more significantly for the purpose of this Report, the clear operation of the Interception Act is necessary in identifying the limits of the legislative power of the States to regulate the surveillance of email and other electronic communications.

Stored electronic communications

2.13 The Commonwealth Government has made three attempts since Report 98 to amend the Interception Act to clarify the application of the Act to email and other electronic communications. Achieving such clarification has proved difficult, particularly in relation to delayed access message services, such as voicemail or email, where the communication may be stored for some time before being accessed by the recipient. As noted earlier, the Interception Act currently applies only to “real time” or “live” communications intercepted whilst in transit: the Act has no application to the interception or surveillance of communications after they have passed across a telecommunications system and reached the recipient, or when stored on the equipment of the sender or recipient.³⁴

2.14 The first two attempts to amend the Interception Act to deal with stored communications were rejected by the Senate Legal and Constitutional Legislation Committee (“the Senate Committee”) in 2002³⁵ and early 2004.³⁶ The 2002 Bill provided that a warrant was not necessary under the Interception Act to intercept stored communications where a telecommunications line was not being used (except for the purpose of turning on the equipment on which the communication was stored). The Senate Committee disagreed with this approach and asked the Government to reconsider the law with a view to requiring an interception warrant in such circumstances.³⁷

2.15 The first 2004 Bill contained a similar provision, but also stated that an interception warrant was required where access was sought to a stored communication that had not been read by the intended recipient, unless such access could be gained by using equipment which the intended recipient could have used, but did not.³⁸ Submissions to the Senate Committee Inquiry into the first 2004 Bill raised a number of difficulties associated with the scope and effect of the proposed amendments. In particular, the Senate Committee heard that the Bill failed to offer sufficient clarification in relation to:

• the legality of accessing read emails at an ISP server with a search warrant (as opposed to an interception warrant);³⁹

• the possible conflict between the Bill and the current powers of the Australian Federal Police to access remotely both read and unread emails from a computer under section 3L of the Crimes Act 1914 (Cth);

• the legality of reading emails after they have passed through an organisation’s firewall (eg, for the purposes of internal security) but before they have reached the recipient.⁴⁰

2.17 The Bill returned in revised form in May 2004 as the Telecommunications (Interception) Amendment (Stored Communications) Bill 2004 (Cth) (“the Stored Communications Bill”). That Bill provides that the Interception Act should have no application at all to stored communications, that is, the Act would only apply to “live” communications, and surveillance of any stored communications would not require an interception warrant to be obtained under the Interception Act.⁴² However, a communication that is stored on a highly transitory basis as part of the integral function of the technology used in its transmission, is not considered to be a stored communications for the purpose of the Bill.⁴³ In his Second Reading Speech on the Bill, the Commonwealth Attorney-General, the Hon Philip Ruddock, MP, noted that the amendments address the “practical implications of modern technology on access to communications”.⁴⁴ It is proposed that the amendments will have effect for 12 months only,⁴⁵ during which time the Attorney-General has requested his Department to undertake a comprehensive review of the Interception Act to ensure its “contemporary relevance” to modern electronic communications.⁴⁶

2.18 Like the previous two amendments, the Stored Communications Bill was sent to the Senate Legal and Constitutional Legislation Committee for inquiry. Many submissions to the inquiry endorsed the need to bring clarity to this complex area, and also noted the inadequacy of the Interception Act (introduced 25 years ago to regulate the interception of land based telephone systems) in dealing with modern, convergent electronic communications.⁴⁷ Others raised concerns regarding the privacy implications of not requiring an interception warrant to access stored emails, particularly where they had not been read by the intended recipient.⁴⁸ The view was also expressed that, although ordinary search warrants would be required to access stored communications in most cases, they did not provide the same level of scrutiny and accountability as interception warrants.⁴⁹

2.19 The Committee was of the view that there is a genuine need to ensure clarity in the application of the Interception Act in terms of enabling access to stored communications, and was satisfied that the provisions of the Stored Communications Bill were satisfactory in achieving such clarity.⁵⁰ The Committee recommended that the Stored Communications Bill should proceed, subject to being amended to refer specifically to the review of the Interception Act ordered by the Commonwealth Attorney General. The Committee also further recommended that the review should be conducted publicly, and should consider the issue of whether stored communications should continue to be exempt from the Interception Act.⁵¹ The Stored Communications Act was passed by Commonwealth Parliament in December 2004.⁵²

The role of State email surveillance laws

2.20 The history of these attempts to amend the Interception Act illustrate the complexity of the legal, policy and practical issues associated with the regulation of surveillance activity, many of which the Commission has been grappling with during the course of this reference. It also highlights the inadequacy of making incremental amendments to outdated legislation in an attempt to deal with modern technology. This is one of the key reasons why the Commission recommended that new surveillance legislation should be introduced to respond to ongoing technological developments and the consequent policy implications, rather than simply expand the LDA.

2.21 The law as it stood prior to the passage of the Stored Communications Act was unclear in its application to the interception and surveillance of electronic communications, particularly when those communications have been stored by the sender or recipient for a period of time. The passage of the Stored Communications Act at least brings a degree of clarity to this area. The potential downgrading in privacy protection that could occur as a result is indeed a matter of concern, and one that makes the need for comprehensive State surveillance legislation to regulate the surveillance of communications not covered by the Stored Communications Act more crucial than ever.

2.22 In Report 98, the Commission concluded that, although the Interception Act is uncertain in scope, the safe assumption (and most practical solution) would be that the interception of any communication which is being carried by or travelling along a telecommunications system is the sole legislative responsibility of the Commonwealth, provided that the interception occurs whilst the communication is in transit.⁵³ Following from this, the Commission then argued that it would be open to the States and Territories to regulate surveillance of these communications at points either before or after they have passed across a telecommunications system.⁵⁴ This approach would, for example, support legislation to enable employers to scan emails stored on the hard drives of employees’ computers for inappropriate content.⁵⁵

2.23 The legal developments since Report 98 was released have not contradicted this approach. Indeed, the discussion in the Senate Report and Second Reading debates over the proposed Interception amendments only serves to reinforce the Commission’s view. Further, the fact that existing and proposed Commonwealth and State surveillance laws deal concurrently with computer and data surveillance devices would seem to indicate that this is an area where the Commonwealth does not purport to “cover the field”.⁵⁶ Consequently, the Commission sees no reason to deviate from the position taken in relation to the surveillance of electronic communications outlined in Report 98.

OTHER LEGAL DEVELOPMENTS SINCE REPORT 98

2.24 A number of other legal developments have occurred since the Commission delivered Report 98 in 2001, which are consistent with or directly or indirectly affect the recommendations in that Report. While some have been discussed in the paragraphs above, others are outlined in the following paragraphs.

Criminal law

2.25 On 16 March 2004, the Crimes Legislation Amendment Bill 2004 (NSW) was passed. Schedule 8 to that legislation amends the Summary Offences Act 1988 (NSW) to include the offences of filming for indecent purposes (inserting s 21G) and installing a device to facilitate filming for indecent purposes (inserting s 21H). Section 21G provides that any person who films,⁵⁷ or attempts to film, another person to provide sexual arousal or sexual gratification, whether for himself or herself or for a third person, where the other person:

(a) is in a state of undress, or is engaged in a private act,⁵⁸ in circumstances in which a reasonable person would reasonably expect to be afforded privacy, and

(b) does not consent to being filmed,

2.26 Section 21H provides that a person who installs a device, or constructs or adapts the fabric of any building, vehicle, vessel, tent or temporary structure for the purpose of facilitating the installation or operation of any device, with the intention of enabling that or any other person to commit an offence under s 21G is guilty of an offence.⁵⁹

2.27 The law covers filming in private homes and public areas. The Attorney General has expressed the view that the legislation is designed to address the inappropriate use of phone cameras, which he says have developed a breed of “21^st-century peeping toms”.⁶⁰

Police investigations

2.28 In December 2004, the Law Enforcement (Powers and Responsibilities) Amendment (In-car Video System) Act 2004 (NSW) (“the In-car Video System Act”) was passed.⁶¹ That Act requires police vehicles fitted with an in-car video system (comprising digital video and audio components), to use that equipment to record dealings between police officers and members of the public in circumstances where police:

• are following a vehicle with the intention of stopping it; or

• have stopped a vehicle for the purpose of conducting an investigation.

2.30 While this Act does not directly implement Report 98, it does give effect to significant fundamental elements of that Report. In particular, the In-car Video Act represents the first legislative regulation of overt surveillance in New South Wales. This recognises the Commission’s view that even where surveillance is conducted with the knowledge of the participants, it still has a sufficient impact on personal privacy and other interests to warrant some form of legislative regulation. The In-car Video Act also departs from the LDA in rejecting the concept of consent in relation to surveillance. In Report 98, the Commission considered that consent should not be a factor in proving whether or not surveillance was overt. The Commission was of the view that attempts to infer consent to surveillance based on behaviour such as entering premises with CCTV systems operating, or using Automatic Teller Machines, are futile, since people generally have no option to choose a surveillance-free alternative. Similar issues arise in dealings between police and members of the public, where the power imbalance may render consent meaningless. Accordingly, the In-car Video System Act echoes the Commission’s view that knowledge, rather than consent, should be the key determinant in overt surveillance.

Workplace surveillance

2.31 In his speech to the NSW ALP State Conference in October 2003, the Premier, the Hon Bob Carr, MP, announced that new legislation would be introduced to govern the installation and use of any surveillance devices that record, monitor or listen to employees.⁶⁵ The Workplace Surveillance Bill 2004 (NSW) (“the Workplace Surveillance Bill”) was released for public comment in June 2004. That Bill is consistent with the recommendations made by the Commission in Report 98, and largely follows the existing model set out in the Workplace Video Surveillance Act 1998 (NSW) (“WVSA”) of requiring an authorisation to be obtained prior to covert surveillance being conducted during the course of employment. The Workplace Surveillance Bill extends the coverage of the WVSA to include additional forms of surveillance such as email and internet monitoring and the use of tracking devices. The Commission discusses the terms of the Workplace Surveillance Bill in more detail in Chapter 5.

Anti-spamming legislation

2.32 Spamming refers to the practice of sending bulk unsolicited electronic messages (usually by email but also by other electronic means), generally in an automated and indiscriminate manner. Spam may contain illegal or offensive material, may be sent for the purpose of fraudulent commercial gain, and generally does not enable the recipient to identify the sender or request to be removed from the mailing lists.⁶⁶ Electronic addresses of spam recipients may also be harvested in a way that contravenes or circumvents privacy legislation.

2.33 In April 2004, the Spam Act 2003 (Cth) came into effect, designed to prohibit the sending of unsolicited electronic commercial messages and to establish a scheme of regulation for other general commercial electronic messages, regardless of whether or not they are unsolicited.⁶⁷ The Australian Communications Authority is the body nominated under the Act to investigate complaints and breaches and to assist in the development of industry codes and education campaigns.

2.34 In Report 98, the Commission discussed the interplay between data protection and surveillance, noting the practice of electronic data warehousing and information cross-matching. The Commission concluded that, although these practices represented significant privacy threats, the random collection, retrieval and matching of information on computer databases should be regulated by data protection or other more appropriate legislation rather than the surveillance legislation proposed by the Commission.⁶⁸ The Commission notes the introduction of the Spam Act 2003 (Cth) as one such measure.

Mutual recognition of surveillance laws

2.35 There is currently little uniformity between the surveillance laws of the Commonwealth and each State and Territory. Differences exist in areas such as who may apply for a warrant, the types of devices a warrant may cover, the duration of warrants, what a warrant may authorise, and record keeping and accountability requirements. This lack of consistency is not a problem where surveillance is being conducted within one State only, and in relation to State offences or issues. However, law enforcement officers have expressed concern over the difficulties involved in conducting surveillance operations that cross State borders, for example, where a tracking device is installed in a vehicle in NSW, which travels through Victoria and South Australia. Currently, warrants must be obtained separately in each jurisdiction, which can result in operational delays, loss of evidence and wasted resources.⁶⁹

2.36 Issues concerning multi-jurisdictional investigations were discussed in a Report by the Standing Committee of Attorneys General and Australasian Police Ministers’ Council Joint Working Group released in November 2003 (“the Joint Working Group Report”). That Report recommended a series of model laws, including surveillance legislation, to “facilitate seamless law enforcement across jurisdictions”.⁷⁰ The model laws are intended to apply only to covert surveillance conducted by law enforcement officers in the course of investigating offences across more than one jurisdiction,⁷¹ and provide for a system of authorisation and accountability measures based on existing Commonwealth and State surveillance laws.

2.37 Under the model surveillance laws, police in one State could apply for a warrant to conduct covert surveillance, which would be valid not only in that jurisdiction, but also recognised in any other State that had adopted the model provisions.⁷² The Joint Working Group Report states that this would alleviate the need to apply for a warrant separately in each participating jurisdiction, as well as the need to call on the resources of interstate police.⁷³ The model Bill sets out minimum standards, which participating States may choose to improve upon in relation to their own law enforcement agencies.⁷⁴ While the model laws are focussed only on cross-border investigations, States may choose to apply the provisions to intra-state surveillance operations as well.⁷⁵ The model laws have recently been adopted, with some amendment, by Victoria,⁷⁶ and the Commonwealth Parliament.⁷⁷

2.38 The provisions of the model laws are discussed in more detail in relation to covert law enforcement recommendations in Chapter 5.

Decision in Lenah Game Meats

Facts and background

2.39 In November 2001, the High Court decision in Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd,⁷⁸ examined the issue of whether or not an injunction was available to prevent the broadcasting of material obtained through covert surveillance.

2.40 In that case, the Lenah Game Meats operated a possum meat processing plant in Tasmania. The ABC obtained video material from a third party, filmed illegally as a result of trespass, of brush tail possums being slaughtered and processed. Lenah Game Meats applied to the Tasmanian Supreme Court for an interlocutory injunction to prevent the ABC from broadcasting the material on the 7.30 Report for fear of negative repercussions on its business.

2.41 Since the ABC was not implicated in the initial trespass, the issue before the court was whether interlocutory relief was available to restrain the ABC from broadcasting the material even though there was no enforceable cause of action against the ABC. This distinguished Lenah Game Meats from previous similar cases which held that injunctions could be awarded to restrain the broadcast of covert surveillance material in circumstances where the media organisation was the trespasser.⁷⁹ Initially, the Tasmanian Supreme Court refused the injunction, finding that, even if the allegations were true, there was no serious question to be tried.⁸⁰ However, on appeal, the Full Court determined that an injunction could be awarded on the basis that it would be unconscionable for the ABC to profit from illegal activity.⁸¹

2.42 The ABC sought, and was granted, special leave to appeal to the High Court. In considering the grounds on which an interlocutory injunction may be available, the High Court examined issues of unconscionability, breach of confidence, and, most significantly for the current purpose, the contention made by Lenah Game Meats that Australian law recognises a tort of privacy which is available to a corporation to protect its commercial interests.

The decision

2.43 The majority of the High Court was of the view that an interlocutory injunction was not available in the circumstances of the case. In reaching this view, Gleeson CJ, Gummow, Hayne, and Gaudron JJ determined that the application for an injunction failed because Lenah was unable to identify the legal rights sought to be protected or to establish an equitable basis for intervention. On the other hand, Kirby J considered that the court had the discretionary power to grant an injunction without an identifiable legal cause of action or basis for equitable intervention. However, on the facts at hand, Kirby J considered that the material was not relevantly private, and that “[w]hen the constitutional consideration favouring free discussion of governmental and political issues of animal welfare in this context is given due weight, a proper exercise of the discretion obliges that the interlocutory injunction be refused”.⁸² Callinan J dissented, considering that the injunction could and should be awarded, on the basis that Lenah had a property interest in the film obtained as a result of covert surveillance, held on the basis of a constructive trust.

High Court’s views on breach of confidence

2.44 The various judgments also commented on the application, and possible extension, of the common law doctrine of breach of confidence. However, as this ground was not argued by counsel for Lenah, the comments are obiter only. The broadest view was expressed by Kirby J, who considered that a relationship of confidence could exist between the subject of surveillance and the broadcaster or publisher of that information, sufficient to restrain its publication or broadcast, where that information was obtained “illegally, tortiously, surreptitiously or improperly, even where the possessor [of the information] is itself innocent of wrongdoing”.⁸³

2.45 The majority of the Court, however, was not prepared to accept such a broad argument. Gleeson CJ considered that, in some circumstances, equity may impose an obligation of confidence upon those who obtained surveillance material of private activities, and upon those into whose possession that material subsequently fell, if they knew, or ought to have known, the manner in which the material was obtained.⁸⁴ Gleeson CJ discussed the difficulty involved in determining what amounted to a “private” activity for the purpose of grounding an action for breach of confidence, proposing that information or conduct should be regarded as private if disclosure would be regarded as “highly offensive to a reasonable person of ordinary sensibilities”.⁸⁵ If the covert filming had been of activity deemed to be private, Gleeson CJ was of the view that the law of breach of confidence would be adequate to cover the case.⁸⁶ In the circumstances of the Lenah Game Meats case, Gleeson CJ considered the material to be neither confidential nor private, providing no grounds for injunctive relief.⁸⁷

2.46 Gummow and Hayne JJ (with Gaudron J concurring) also rejected the notion that material obtained as a result of trespass should always be equated with confidential information. Instead, their Honours expressed the view that publication of such information could possibly be restrained by imputing an equitable proprietary interest, on the part of the surveillance subject, in the copyright of the videotape, if the material was obtained in circumstances involving “the invasion of the legal or equitable rights” of the surveillance subject.⁸⁸ On this interpretation, the property right in the videotape would be the key factor, with the privacy or confidentiality of the information being irrelevant.⁸⁹

2.47 In his dissent, Callinan J acknowledged that the copyright argument may have some validity, but did not consider it pertinent to the circumstances before the Court. Instead, he considered that publication of material obtained as a result of trespass could be restrained because of a fiduciary relationship of confidence that existed between Lenah, who was entitled to exclusive occupation of its premises, and the ABC, who knew that the video was obtained illegally. Callinan J was of the view that, in these circumstances, the ABC was acting unconscionably, and that it held the videotape on constructive trust for Lenah.

High Court’s views on a tort of privacy

2.48 The majority of the High Court held that, in the circumstances of the case, involving the commercial interests of a corporation whose legal rights had not been directly impugned by the appellant, there was no invasion of privacy. However, the broad question of whether a general tort of invasion of privacy exists in Australian law, and if so, what the elements of such a tort be, was left open.⁹⁰ In fact, in expressing the view that a tort of privacy would not be available to protect the commercial interests of a corporation, Gummow and Hayne JJ took pains to note that nothing “said in these reasons should be understood as foreclosing any such debate or as indicating any particular outcome”.⁹¹ In considering that an interlocutory injunction should have been granted on the basis of the illegality involved in obtaining the tape, Kirby J deemed it unnecessary to examine the existence of a privacy tort.⁹²

2.49 Gleeson CJ noted the “lack of precision in the concept of privacy”, and the “tension that exists between interests in privacy and interests in free speech” as reasons for “caution in declaring a new kind of tort”, suggesting that this weighted the argument in favour of the extension of the doctrine of breach of confidence.⁹³ It is interesting to note that Gleeson CJ considered that the commercial interests of a corporation could be covered by an extension of that doctrine, but not in the present case given that the surveillance material was not sufficiently private.

2.50 On the other hand, Callinan J appeared to view the recognition of a privacy tort favourably:

It seems to me that, having regard to the current conditions in this country, and the developments of the law in other common law jurisdictions, the time is ripe for consideration whether a tort of invasion of privacy should be recognised in this country, or whether the legislatures should be left to determine whether provisions for a remedy for it should be made.⁹⁴

Implications of Lenah Game Meats for privacy and surveillance laws

2.52 Many commentators have noted the significance of Lenah Game Meats. Just as the High Court Judges held wide-ranging views in the case, commentators have drawn different conclusions as to its impact on the development of privacy rights in Australia.⁹⁶ Some submissions received by the Commission from media organisations in response to Interim Report 98 have argued that the case represents the rejection by the High Court of the opportunity to develop a common law right to privacy.⁹⁷ Those submissions view the judgment in Lenah Game Meats as being at odds with the Commission’s recommendations, which they view as effectively amounting to a statutory tort of invasion of privacy. ⁹⁸

2.53 Others see the decision as more narrowly constrained and less definitive in terms of general privacy jurisprudence:

The facts before the High Court in Lenah were not conducive to the development of principles relating to the protection of privacy under Australian general law. On any view of the facts, Lenah was concerned to protect commercial interests in business goodwill or reputation, and not privacy interests.⁹⁹

On a formal level, the decision in Lenah leaves the concept of a tort of privacy in Australian law in much the same position as it was before the case was decided: it remains a matter of great uncertainty, and arguments in favour of the existence of such a tort will only be resorted to by those who have no case under more familiar headings.¹⁰⁰

The main significance of the decision for the future of privacy law lies in the extent to which each of the judgments appeared to recognise, at least implicitly, that protection of privacy under Australian general law is, at present, inadequate.¹⁰³

2.56 As noted above, Gleeson CJ pointed out the difficulties inherent in defining concepts of privacy, suggesting that this weighted the argument against the development of a specialised tort. Gleeson CJ also noted the difficulty associated with balancing privacy and freedom of expression.¹⁰⁶ However, others have argued that, while defining privacy and balancing it against other public interests is undoubtedly difficult, this is a difficulty confronted by any liberal democracy, and that the way to overcome it is to develop a flexible framework in which those interests may be weighted against each other in particular circumstances.¹⁰⁷

2.57 There has been much discussion and debate following Lenah Game Meats on the nature of privacy and what activities would, or should, be considered to be private. Gleeson CJ, in a much quoted statement, asserted that there is “no bright line that can be drawn between what is private and what is not”.¹⁰⁸ He also states that an act does not “become private simply because the owner [of private property] would prefer that it were unobserved”. Others challenge this assertion, noting “if that is not private, what is? What more does the owner of private property have to do?”¹⁰⁹

2.58 So far as the particular impact of surveillance material on the nature of private or confidential activity, it has been observed that a “video is much more media-effective than any possible description of the abattoir in a government document or even an eyewitness description”.¹¹⁰ It is argued that the videos were, therefore, not existing information, but “entirely new information in pictorial form to which no-one had previously had access and which accordingly should have been recognised as having the necessary quality of confidence”.¹¹¹

Analysis

2.59 Lenah Game Meats is relevant to the Commission’s work on this reference insofar as it involves issues of media, surveillance and privacy. However, contrary to the claims of media organisations, nothing in Lenah Game Meats precludes a legislative statement on privacy or surveillance in the manner proposed by the Commission. Nor is Lenah Game Meats authority for the proposition that a common law tort of privacy should not be developed. The High Court either felt that there was no need to decide the question in light of the facts at hand, or were unsure of which approach to take. What the case does reveal is the current uncertainty of the common law in its application to emerging technology and the challenges that this represents.

2.60 The case also muddies several distinct concepts, such as privacy, confidentiality and proprietary interests, and is further complicated by the fact that the subject of the surveillance was a corporation, and that the surveillance material was not considered, or even argued to be, private or confidential. In the Commission’s view, the case highlights the complexity of the issues surrounding privacy, confidentiality and surveillance, and the inadequacy of the common law to provide clear and effective guidance on when surveillance can occur and privacy interests may be displaced. As stated in Report 98, there are undoubtedly circumstances in which the public interest in conducting surveillance outweighs an individual’s interest in protecting his or her personal privacy. However, where intrusions into privacy interests by means of surveillance are unwarranted and unjustified, the protection of privacy should be respected in its own right, and not be viewed in the context of other proprietary interests, or whether or not a relationship of confidentiality exists. In effect, the Commission considers that the decision in Lenah Game Meats can be viewed as highlighting the need for considered surveillance legislation setting out the interests designed to be upheld or protected.

1. (2001) 208 CLR 199.

2. Constitution Act s 51(v).

3. Constitution Act 1902 (NSW) s 5.

4. Telecommunications (Interception) Act 1979 (Cth) (“Interception Act”) s 7.

5. Interception Act s 5. However, the definition of “interception” refers only to “listening to or recording” such communications: s 6. See further discussion at para 2.11 below.

6. Edelsten v Investigating Committee of New South Wales (1986) 7 NSWLR 222 at 230; Miller v Miller (1978) 141 CLR 269.

7. This allows overt interception to occur without the need for a warrant. Organisations such the Australian Stock Exchange, Telstra and the 000 emergency line, routinely monitor calls overtly for the purpose of improving service quality or having a record of conversations in case of future allegations of improper conduct or coronial inquiries, etc: see Sydney Futures Exchange, Submission at 2; F Wood, “Your telephone calls: recording and monitoring” (1996) 3(1) Privacy Law and Police Reporter 14; and A Henderson and A McDonough, “Call monitoring – legalities and regulation” (February 1999) 2(8) TeleMedia 97 at 99.

8. See T v Medical Board (SA) (1992) 58 SASR 382.

9. This is discussed in more detail at para 2.11 and para 2.13-2.23 below.

10. The use of aural surveillance devices by Commonwealth agencies in the investigation of Commonwealth drug importation offences is regulated by the Customs Act 1901 (Cth) s 219A-219K; the use of aural surveillance devices by the Australian Federal Police in the investigation of certain non-narcotics Commonwealth offences is regulated by the Australian Federal Police Act 1979 (Cth) s 12B-12L; the use of aural, optical and computer surveillance devices by members of the Australian Security Intelligence Organisation is regulated by the Australian Security Intelligence Organisation Act 1979 (Cth) s 25A-s 26C.

11. The Surveillance Devices Act 2004 (Cth) came into effect on 15 December 2004.

12. Surveillance Devices Bill 2004 (Cth) Explanatory Memorandum at 1.

13. See Surveillance Devices Act 2004 (Cth) s 6.

14. State offences with a federal aspect are defined in Surveillance Devices Act 2004 (Cth) s 7.

15. Except for Tasmania and the Australian Capital Territory, which still only regulate listening devices: see Listening Devices Act 1991 (Tas) and Listening Devices Act 1992 (ACT).

16. Police Powers and Responsibilities Act 2002 (Qld) Part 2 and Schedule 4. This law does not cover the use of those devices by private individuals

17. Surveillance Devices Act 1998 (WA) s 5-7.

18. Replacing the Surveillance Devices Act 1999 (Vic).

19. Surveillance Devices Act 1999 (Vic) s 3 and s 9. The 1999 Act was recently amended by the Surveillance Devices (Amendment) Act 2004 (Vic) to implement the Model Laws on Cross Border Investigations: see discussion at para 2.35-2.38 below.

20. Surveillance Devices Act 2000 (NT) s 3 and s 5.

21. LDA s 3(1).

22. LDA s 3(1A). This amendment was introduced as a result of the decision in R v Peter Kay and Roula Kay (District Court of NSW, Viney J, 22 October 1999, unreported) which questioned whether a multi-function device fell within the definition of “listening device”: cf R v McNamara (1995) 1 VR 263.

23. Workplace Video Surveillance Act 1998 (NSW) s 4.

24. Workplace Video Surveillance Act 1998 (NSW) Part 2 and 3.

25. Workplace Surveillance Bill 2004 (NSW) cl 3. The Bill specifically excludes the use of listening devices from its ambit.

26. Privacy Amendment (Private Sector) Act 2000 (Cth). The National Privacy Principles cover the same broad areas as the Information Privacy Principles, but differ slightly to accommodate the environment in which commercial organisations operate.

27. Private sector organisations that are not required to comply with the Privacy Act include those with an annual turnover of less than $3 million (Privacy Act s 7B(2)(b) and s 6B(1)) and media organisations engaged in “the course of journalism”: Privacy Act s 7B(4).

28. For example, the Data-Matching Program (Assistance and Tax) Act 1990 (Cth) regulates the use of the tax file number in comparing personal information held by the Australian Taxation Office and by assistance agencies (Centrelink and the Department of Veterans Affairs).

29. For example, records from different government departments are often compared to identify people who are being paid benefits to which they are not entitled or people who are not paying the right amount of tax.

30. Under the Privacy Act 1988 (Cth), a media organisation is exempt for the purposes acts done, or practices engaged in:

(a) by the organisation in the course of journalism; and

(b) at a time when the organisation is publicly committed to observe standards that:


(i) deal with privacy in the context of the activities of a media organisation (whether or not the standards also deal with other matters); and

(ii) have been published in writing by the organisation or a person or body representing a class of media organisations: s 7B(4).

32. Interception Act s 5.

33. Interception Act s 6(1). An attempt to extend the definition of “interception” to include “reading or viewing” a communication in its passage across a telecommunications system was recently rejected by the Senate Legal and Constitutional Legislation Committee: Australia, Senate Legal and Constitutional Legislation Committee, Provisions of the Telecommunications (Interception) Amendment Bill 2004 (March 2004) at para 3.66. Other provisions of this Bill and the recommendation of the Senate Committee are discussed at para 2.14-2.19.

34. See para 2.11.

35. Telecommunications Interception Legislation Amendment Bill 2002 (Cth).

36. Telecommunications (Interception) Amendment Bill 2004 (Cth).

37. Australia, Senate Legal and Constitutional Legislation Committee, Provisions of the Telecommunications Interception Legislation Amendment Bill 2002 (May 2002) at para 4.17, Recommendation 5.

38. Provided that this did not require the use of a telecommunications line, except to the extent necessary for turning on the equipment: see Telecommunications (Interception) Amendment Bill 2004 (Cth) proposed s 6(7).

39. This is currently legal. However, in practical terms it can be difficult to determine whether an email has been read or not. Accordingly, the effect of the proposed amendments would mean that an interception warrant, rather than a search warrant, would be necessary whenever a law enforcement officer was in doubt.

40. See Senate Committee Report at para 3.55-3.66.

41. See Senate Committee Report at para 3.66 and Recommendation 1 at para 4.33. See also Australia, Parliamentary Debates (Hansard) House of Representatives, 1 April 2004 at 28073. The Government agreed to this recommendation and omitted those provisions from the Bill which passed into law on 27 April 2004.

42. Proposed s 7(2)(ad). A general search warrant would still be required to access stored communications.

43. Stored Communications Bill, proposed s 7(3). The Bill provides the example of momentary buffering (including momentary storage in a router in order to resolve a path for further transmission) as an illustration of storage on a highly transitory basis.

44. Australia, Parliamentary Debates (Hansard) House of Representatives, 27 May 2004 at 29309.

45. Proposed s 7(3A).

46. Australia, Parliamentary Debates (Hansard) House of Representatives, 27 May 2004 at 29309.

47. Australia, Senate Legal and Constitutional Legislation Committee, Provisions of the Telecommunications (Interception) Amendment (Stored Communications) Bill 2004 (July 2004) at para 3.3-3.7.

48. Australia, Senate Legal and Constitutional Legislation Committee, Provisions of the Telecommunications (Interception) Amendment (Stored Communications) Bill 2004 (July 2004) at para 3.23-3.41.

49. Australia, Senate Legal and Constitutional Legislation Committee, Provisions of the Telecommunications (Interception) Amendment (Stored Communications) Bill 2004 (July 2004) at para 3.36 and 3.42-3.46.

50. Australia, Senate Legal and Constitutional Legislation Committee, Provisions of the Telecommunications (Interception) Amendment (Stored Communications) Bill 2004 (July 2004) at para 3.20 and 3.53-3.54.

51. Australia, Senate Legal and Constitutional Legislation Committee, Provisions of the Telecommunications (Interception) Amendment (Stored Communications) Bill 2004 (July 2004) at para 3.47-3.48 and 3.54-3.55.

52. Taking effect on 15 December 2004.

53. Report 98 at para 2.47.

54. Report 98 at para 2.48. The Commission acknowledged that this two-tier system of regulation between the Commonwealth and the States was not ideal, but, in the absence of comprehensive Commonwealth regulation of email and other delayed access communications, it was preferable to leaving the unauthorised interception of those communications insufficiently regulated: Report 98 at para 2.49-2.50.

55. See discussion in Senate Committee Report at para 3.12-3.16. The Commission notes that this practice would be permitted under the Recommendations made in Report 98 regarding surveillance in the context of employment, provided that it was conducted overtly and that certain privacy safeguards were complied with. If such email surveillance were to be conducted covertly, a prior authorisation would be necessary. This also accords with the regime set out in the draft Workplace Surveillance Bill 2004 (NSW).

56. For example, the Surveillance Devices Act 2004 (Cth) specifically preserves the ability of the States to legislate on surveillance: s 4(1).

57. For the purposes of the section, a person films another person if he or she causes one or more images (whether still or moving) of another person to be recorded or transmitted for the purpose of enabling himself or herself, or a third person, to observe those images (whether while the other person is being filmed or later): s 21G(2)(a).

58. For the purposes of the section, a person is engaged in a private act if the person is using the toilet, showering or bathing, carrying on a sexual act of a kind not ordinarily done in public or any other like activity: s 21G(2)(b).

59. The maximum penalty of 100 penalty units, 2 years imprisonment, or both: s 21H

60. L Silmalis “Phone camera abusers face jail” Sunday Telegraph (Sunday 14 March 2004 at 9).

61. This Act amends the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW). Neither piece of legislation has been proclaimed.

62. Law Enforcement (Powers and Responsibilities) Amendment (In-car Video System) Act 2004 (NSW) s 108D(1) and (3).

63. Law Enforcement (Powers and Responsibilities) Amendment (In-car Video System) Act 2004 (NSW) s 108F.

64. New South Wales, Parliamentary Debates (Hansard), Legislative Assembly, 7 December 2004 at 13420.

65. Premier of NSW, the Hon Bob Carr, MP, Speech to the NSW ALP State Conference, Sunday 5 October 2003.

66. See Spam Bill 2003 (Cth) Explanatory Memorandum at 3.

67. See Spam Bill 2003 (Cth) Explanatory Memorandum at 1.

68. See Report 98 at para 2.69-2.72 and Recommendation 6.

69. See Standing Committee of Attorneys General and Australasian Police Ministers’ Council Joint Working Group on National Investigative Powers, Cross-Border Investigative Powers for Law Enforcement (November 2003) (“Joint Working Group Report”) at 345.

70. Joint Working Group Report at i.

71. Existing State laws would continue to operate in relation to intra-State surveillance operations: see Joint Working Group Report at v.

72. Joint Working Group Report at vi.

73. Joint Working Group Report at vi.

74. For example, a State could choose to require its law enforcement officers to observe higher standards of accountability during cross-border surveillance operations. However, a jurisdiction “that adopts higher standards must nevertheless accept that participation in the national scheme means that the law enforcement agencies of other external jurisdictions could be operating in its local jurisdiction to the minimum, nationally agreed standards”: Joint Working Group Report at iv.

75. Victoria (the only State so far to have legislated to adopt the model laws) has chosen to implement the model in relation to local as well as cross-border investigations: Surveillance Devices (Amendment) Act 2004 (Vic).

76. Surveillance Devices (Amendment) Act 2004 (Vic).

77. Surveillance Devices Act 2004 (Cth).

78. (2001) 208 CLR 199.

79. See, eg, Lincoln Hunt Australia Pty Ltd v Willesee (1986) 4 NSWLR 457.

80. Lenah Game Meats Pty Ltd v ABC, Supreme Court of Tasmania, Underwood J, 3 May 1999, unreported.

81. Lenah Game Meats Pty Ltd v ABC [1999] TASSC 114.

82. (2001) 208 CLR 199 at para 221.

83. (2001) 208 CLR 199 at para 170 and para 183.

84. (2001) 208 CLR 199 at para 34-36.

85. (2001) 208 CLR 199 at para 42. See discussion below at para 2.49 and 2.56-2.57.

86. (2001) 208 CLR 199 at para 39.

87. Note that Lenah conceded that the material was not private.

88. (2001) 208 CLR 199 at para 102-103.

89. As with breach of confidence, Lenah did not argue a breach of copyright, and therefore these comments are obiter only.

90. See view expressed in D Lindsay, “Protection of privacy under the general law following ABC v Lenah Game Meats Pty Ltd: Where to now?” (2002) 9(6) Privacy Law and Policy Reporter 101 at 104.

91. (2001) 208 CLR 199 at para 132.

92. (2001) 208 CLR 199 at para 189 and 191.

93. (2001) 208 CLR 199 at para 41.

94. (2001) 208 CLR 199 at para 335.

95. (2001) 208 CLR 199 at para 328.

96. See eg G Taylor and D Wright, “Australian Broadcasting Corporation v Lenah Game Meats, Privacy, Injunctions and Possums: An Analysis of the High Court’s Decision” (2002) 26 Melbourne University Law Review 707; D Lindsay, “Protection of privacy under the general law following ABC v Lenah Game Meats Pty Ltd: Where to now?” (2002) 9(6) Privacy Law and Policy Reporter 101; M Richardson, “Whither Breach of Confidence: A Right of Privacy for Australia?” (2002) 26 Melbourne University Law Review 381; D Stewart, “Protecting Privacy, Property, and Possums: Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd” (2002) 30(1) Federal Law Review 177; B Harris, “Privacy and ‘possum’ let the debate begin” (2002) 10 elawpractice.com.au at 13; F Trindade, “Possums, privacy and the implied freedom of communication” (2002) 10 Torts Law Journal 119; H Heuzenroeder, “Brushtail Carnage: Privacy Interests and the Common Law” (2002) 24(1) Law Society Bulletin (SA) 22; G Greenleaf, “Privacy at common law – not quite a dead possum” (2001) 8(7) Privacy Law and Policy Reporter 129; T Wilson, “Does the decision in ABC v Lenah Game Meats Pty Ltd open the door to privacy rights?” (2002) 16(5) Australian Property Law Bulletin 45; J Horton, “Common law right to privacy moves closer in Australia” (2001) 8(7) Privacy Law and Policy Reporter 144; J Horton, “Towards a Real Right of Privacy” (2003) 29(2) Monash University Law Review 401; R Martin and J Macdonnell, “Privacy after Lenah Game Meats” (2001) 5(7) Telemedia 106; D Lindsay, “Playing possum? Privacy, freedom of speech and the media following ABC v Lenah Game Meats Pty Ltd: Part 11- The future of Australian privacy and free speech law, and implications for the media” (2002) (September) Media and Arts Law Review 161; WM Heath, “Possum Processing, Picture Pilfering, Publication and Privacy: Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2002) 28(1) Monash University Law Review 162; S Gibson, “Emerging law of privacy in Australia” (2003) 16(5) Australian Intellectual Property Law Bulletin 65; C Doyle and M Bagaric, “”The right to privacy and corporations” (2003) 31 Australian Business Law Review 237; GHL Fridman, “A Scandal in Tasmania: The Tort That Never Was” (2003) 22(1) University of Tasmania Law Review 84.

97. However, the Australian Press Council News cites Lenah Game Meats as one of a number of cases in which the courts are giving “limited recognition” to the “embryonic common law tort of breach of privacy”: see Australian Press Council News vol 16(2) May 2004 at 7.

98. Australian Broadcasting Corporation Submission at 4; Australian Press Council Supplementary Submission at 3; Special Broadcasting Service Corporation Submission at 2; Commercial Television Australia Limited Submission at 6 and 12; John Fairfax Holdings Submission at 5.

99. D Lindsay, “Protection of privacy under the general law following ABC v Lenah Game Meats Pty Ltd: Where to now?” (2002) 9(6) Privacy Law and Policy Reporter 101 at 105.

100. G Taylor and D Wright, “Australian Broadcasting Corporation v Lenah Game Meats, Privacy, Injunctions and Possums: An Analysis of the High Court’s Decision” (2002) 26 Melbourne University Law Review 707 at 709.

101. G Taylor and D Wright, “Australian Broadcasting Corporation v Lenah Game Meats, Privacy, Injunctions and Possums: An Analysis of the High Court’s Decision” (2002) 26 Melbourne University Law Review 707 at 735.

102. D Lindsay, “Protection of privacy under the general law following ABC v Lenah Game Meats Pty Ltd: Where to now?” (2002) 9(6) Privacy Law and Policy Reporter 101 at 105-106. See also D Stewart, “Protecting Privacy, Property, and Possums: Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd” (2002) 30(1) Federal Law Review 177 at 201; T Wilson, “Does the decision in ABC v Lenah Game Meats Pty Ltd open the door to privacy rights?” (2002) 16(5) Australian Property Law Bulletin 45 at 47; J Horton, “Common law right to privacy moves closer in Australia” (2001) 8(7) Privacy Law and Policy Reporter 144 at 144.

103. D Lindsay, “Protection of privacy under the general law following ABC v Lenah Game Meats Pty Ltd: Where to now?” (2002) 9(6) Privacy Law and Policy Reporter 101 at 105.

104. Although these issues were immaterial to the case at hand since Lenah conceded that the material on the tape was not “confidential”.

105. See, eg, H Heuzenroeder, “Brushtail Carnage: Privacy Interests and the Common Law” (2002) 24(1) Law Society Bulletin (SA) 22 at 24. See also J Horton, “Common law right to privacy moves closer in Australia” (2001) 8(7) Privacy Law and Policy Reporter 144 at 145.

106. See para 2.29 and 2.56.

107. D Lindsay, “Protection of privacy under the general law following ABC v Lenah Game Meats Pty Ltd: Where to now?” (2002) 9(6) Privacy Law and Policy Reporter 101 at 107.

108. (2001) 208 CLR 199 at para 42.

109. G Taylor and D Wright, “Australian Broadcasting Corporation v Lenah Game Meats, Privacy, Injunctions and Possums: An Analysis of the High Court’s Decision” (2002) 26 Melbourne University Law Review 707 at 717.

110. G Taylor and D Wright, “Australian Broadcasting Corporation v Lenah Game Meats, Privacy, Injunctions and Possums: An Analysis of the High Court’s Decision” (2002) 26 Melbourne University Law Review 707 at 717.

111. G Taylor and D Wright, “Australian Broadcasting Corporation v Lenah Game Meats, Privacy, Injunctions and Possums: An Analysis of the High Court’s Decision” (2002) 26 Melbourne University Law Review 707 at 717.