High Court Challenge to NSW Ag-Gag Laws: An Interview With Farm Transparency Project’s Chris Delforce

Animal cruelty is something the majority of the population are aghast by. And it’s for this very reason that the authorities take draconian measures to keep the horrific practices that go on within factory farms and slaughterhouses far from the public eye.

The internationally acclaimed film Dominion exposes the barbarism going on within Australian farms and abattoirs. Via clandestinely captured footage, the 2018 movie delivers a smorgasbord of unanesthetized throat cutting, beatings, gassings and instances of being skinned alive.

Revealing the lawful cruelty at the heart of the animal agriculture industry is an attempt to bring it to an end. And that’s why all Australian governments have enacted an edifice of laws that serve to keep secret the brutality that’s behind what’s sitting on many dinner plates.

Dominion filmmaker Chris Delforce knows this too well. In 2015, his Adelaide house was raided by NSW police in relation to footage he’d captured within piggeries and he was charged with a number of offences that serve to hide such footage.

These types of laws are referred to collectively as ag-gag.

Disputing their right to silence

In 2017, when Delforce went before the courts to face ten counts under the Surveillance Devices Act 2007 (NSW) (the Act), the charges were dropped due to a technicality.

So, the animal activist never got to challenge the validity of using surveillance privacy laws in this manner.

However, Delforce is now going to the High Court to do just that. In late June, he and his legal team served NSW attorney general Mark Speakman with papers lodged with the High Court of Australia, disputing whether two sections of the Act can legitimately be used as ag-gag.

Section 11 of the Act outlaws communicating and publishing private recordings, via the threat of five years in gaol, while section 12 makes it a crime to possess such material, again with up to half a decade inside if found guilty of this offence.

According to the Farm Transparency Project, these laws have increasingly been applied by NSW police in cases similar to Delforce’s. And the argument will be that in doing this, the authorities are impinging upon the implied freedom of political communication in the Australian Constitution.

Risking it all

These days, Delforce is the executive director of the Farm Transparency Project, which, in its previous incarnation as Aussie Farms, saw Scott Morrison push for federal ag-gag laws in 2019, due to a map on its site detailing the whereabouts of animal agricultural businesses around the country.

Yet, despite the assertions of the PM that such activists are “green criminals”, closer to the truth is, Delforce and his type dedicate their time and risk their liberty to try and put an end to the extreme suffering that fellow sentient beings continue to be subjected to without oversight.

Sydney Criminal Lawyers spoke to Delforce about what he’ll be putting across to the High Court once the case goes before it early next year, the fact that animal cruelty laws fail to protect those in farms and slaughterhouses, and why the government is so keen to keep this all secret.

Firstly, you’ve launched a High Court challenge to the constitutional validity of the offences contained in sections of the Surveillance Devices Act. These crimes are part of a body of law referred to as ag-gag.

In 2015, you were charged with six counts under section 11, after police raided your Adelaide home, but due to a technicality the charges were dropped.

Chris, what is the issue with these laws? And what’s the argument you’ll put to the High Court?

This Act was never intended to be used for this purpose in the first place. It has only more recently been used in this kind of ag-gag way.

Its intention was more about individual privacy in people’s own homes. So, preventing people putting hidden cameras up in bathrooms, etc.

It was never meant to target activities like the intensive farming of animals, especially where there are no workers or people around.

As it’s being used, it captures simply handheld footage or photographs of a pig or chicken in a cage, which has nothing to do with the privacy of individuals whatsoever.

Businesses don’t have the same right to privacy as individuals do, so there is no real argument to say that we’re infringing upon the business’ privacy by publishing these photos.

What we’re essentially arguing is this law is being used in a way to limit the awareness that members of the public can have about a legitimate public interest matter – animal cruelty – in order to be able to make informed decisions when it comes to election time, or when they make purchases.

People need to have at least the ability to see for themselves what’s happening in these types of facilities and decide whether that’s something that they want to support.

If more people knew what was happening lawfully every day in farms and slaughterhouses around this country, it would be an uproar. It would be a massive political issue.

But people are being prevented from having that knowledge by laws such as these that criminalise the publication of this kind of material.

So, on the one hand, the publication actually shows its lawful cruelty. It’s cruelty that the government is saying is okay. But they’re still not letting everyday consumers actually see it. So, it’s a strange kind of double standard.

We’re arguing that this law, in the way it is being used, impinges upon the implied freedom of political communication in the Constitution.

So, these laws are being used to suppress evidence captured at farms and slaughterhouses. However, there are a series of laws preventing activists from entering onto farms to obtain such evidence.

These laws have been beefed up over the last seven years with the passing of the Biosecurity Act 2015 (NSW) and the Right to Farm Act 2019 (NSW).

What are the implications of these laws?

Whatever can be done to stop people trespassing and capturing footage, those laws will do that.

But there’s definitely an extent to which investigators and activists accept those legal risks and are going to go into these places and capture that material regardless, because they believe people have a right to see it.

So, we’re not challenging the laws around the collection of this material. We are only challenging those laws that capture the publication.

Activists can be charged, fined and sent to gaol for their role in capturing this kind of material. But that’s not going to be the focus of this case. We’re only focusing on the publication aspect.

The unfortunate reality is the public does rely upon activist investigators to go out and get this material and publish it.

There’s no way the industry is going to publish themselves because they know that it would be considered cruel to most consumers.

Even with groups like the RSPCA who may have the legal authority to go into these places and inspect them, it’s not their role or within their interests to capture imagery and publish that for consumers to see. It’s not something that they do.

So, the only other way consumers can get information is through propaganda from the industry that is very much in bias of their own industry and showing things in a very happy light.

The actions of your old organisation led the Morrison government to pass the Agricultural Protection Bill 2019 (Cth), which created two new offences around publishing information online that provokes others.

What are your thoughts on these laws?

It’s really interesting because at the end of that law, it had a section saying that it doesn’t apply to the extent that it infringes upon the implied freedom of political communication in the Constitution.

So, they’ve actually recognised that is an issue and put it in there to say it can’t be used in that way.

From my perspective, they’ve nullified their own law if they were intending to use it to stop the publication of material, as they acknowledge that such a use may not be constitutionally valid.

That may be a reason that the law has not been used to target any publications by activists yet. Although there’s no such recognition in the NSW Surveillance Devices Act.

So, could a favourable High Court ruling have implications for the federal laws as well?

Absolutely. Any existing federal and state law, as well as laws going into the future. We’d set a very strong precedent that they can’t be used as ag-gag.

I just watched Dominion again. It’s a horrific watch. How do you do what you do as a filmmaker? And has what you’ve witnessed affected the way you think about people?

The more you watch this kind of material, the more desensitised you get to it. When you have a specific purpose in mind, which is creating film, you have to learn to shut off emotionally to what you’re seeing because there’s no way to do it otherwise.

In ways it’s very similar to what slaughterhouse or farm workers have to go through where they’re doing these horrible things to animals again and again every day.

You cannot do that if you’re emotionally connecting with those animals. You have to dissociate. You have to shut off.

I’ve found I’ve experienced a very similar thing, where I am watching this footage, and I am just looking for which shot best tells this story. I’m not thinking about the horror that I am actually witnessing.

But, definitely, over time, it does affect my view of humankind and what we’re capable of doing so relentlessly and so mercilessly and so remorselessly.

It does make me question whether there’s real hope that things can get any better. But you just have to put those thoughts aside and keep doing whatever you can to try and make the situation better.

During the film a message appears on the screen in some segments notifying the viewer that what they’re watching are RSPCA-approved practices.

We have animal cruelty laws in NSW. Do these laws extend to agricultural animals? What types of laws are protecting agricultural animals?

The Prevention of Cruelty to Animals Act in NSW, and the equivalent in all other states, have some sort of exemption for commercially farmed animals or animals used for other commercial purposes.

So, farm animals are specifically exempt from the cruelty laws that protect companion animals, like dogs and cats.

So, we recognise that sheep, pigs and cows all feel the same emotions. They’re still capable of experiencing the same pain and suffering, joy and grief – those vast emotions that our dogs and cats can feel – but we then feel it’s okay to mutilate them without anaesthetic.

We feel it’s okay to subject them to carbon dioxide gas chambers, where they’re screaming and thrashing in their final moments, or confine them to cages for weeks, months or a year on end.

All these things are somehow okay just because they’re commercially farmed animals and there’s an industry behind it and money to be made.

Farmed animals actually have very little in the way of legal protection and that’s definitely something that we try to focus on and raise awareness about, because it’s something most people don’t realise.

There is no justification for it, certainly no moral justification. The only justification is that it creates jobs. It allows these industries to operate, because otherwise they wouldn’t be able to exist.

There is an inherent level of cruelty that must be lawful and must be permitted in order for these industries to continue doing what they’re doing.

And lastly, Chris, you’ve lodged your challenge with the High Court. You’ve noted that the law you’re challenging has similar versions in other jurisdictions, but they come with a public interest clause.

You also outline that because of this law media companies won’t touch the type of footage you deal in.

So, why is the distribution of this type of evidence in the public interest? And if that’s the case, why are authorities trying so hard to keep it from the public?

We’ve seen time and time again that when it is exposed the public do react. That’s whether it is the greyhound live baiting scandal or live exports or battery cages. There have been so many of these issues brought to light. And the public is shocked, and they want change to happen.

That only comes about as a result of this kind of footage getting out.

Any real changes that have happened for animals in the last two decades has been a result of this footage coming out.

It is understandable that the government would want to clamp down on that and stop what they see as attacks on this industry, because any time that someone sees footage of chickens or pigs being mistreated, they’re less likely to continue paying for that to happen.

So, it’s no surprise that the government is trying to make laws that target that kind of information getting out. And that’s exactly what we’re seeing.

Main Image: Battery caged hens. Screenshot from Dominion