Australian Broadcasting Corporation v Sawa Pty Ltd

[2018] WASCA 29

Western Australia Court of Appeal

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For Australian Law.

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Interrogate

Catchwords

1. Surveillance Devices
2. › Publication of covertly recorded private activity
3. › Application for permission to publish under s 31
4. › Whether publication should be made to protect or further the public interest
5. › Evaluative judgment on which minds may reasonably differ
6. › Whether appellable error demonstrated
7. › Surveillance Devices Act 1998 (WA), s 31
1. Appeal
2. › Standard of appellate review
3. › Discretionary value judgment
4. › Whether House v The King principles apply to evaluative judgment under s 31
5. › Whether outcome unreasonable or plainly unjust
1. Statutory Interpretation
2. › Principle of legality
3. › Whether principle of legality applies to identify mandatory relevant considerations in exercise of statutory power
4. › Whether presumed right of free speech is mandatory relevant consideration under s 31
5. › Surveillance Devices Act 1998 (WA), s 31
1. Practice and Procedure
2. › Open justice
3. › Whether principle of open justice overrides specific statutory scheme limiting publication
4. › Whether playing of evidence in open court determinative of application to publish

Quick Take

The principle of legality and a presumed right of free speech are not mandatory relevant considerations under s 31 of the Surveillance Devices Act 1998 (WA). The benefits of free speech are subsumed into the overall public interest assessment but carry no presumptive force, because the Act creates the opposite presumption through its general prohibition on publication. The principle of open justice does not automatically override a specific statutory scheme limiting publication of covertly recorded material. The risk of uncontrolled internet republication is a legitimate factor weighing against orders for publication under s 31.