FEDERAL COURT OF AUSTRALIA

BDR21 v Australian Broadcasting Corporation [2023] FCAFC 101

ORDERS

THE COURT ORDERS THAT:

1.    The interlocutory application to adduce further evidence on the appeal dated 18 February 2022 be dismissed.

2.    The parties confer and, within 14 days or such further time as is allowed, submit agreed or competing draft orders to give effect to the conclusion of the Full Court that there should be summary judgment in respect of the claim advanced in the amended statement of claim that impermissibly relied upon the December 2018 letter as a public interest disclosure, and impermissibly relied on the contents of that letter as a “PID belief” for the purposes of s 13(1)(b) of the Public Interest Disclosure Act 2013 (Cth).

3.    The appeal otherwise be dismissed with no order as to costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

INTRODUCTION

1    This is an appeal by leave from interlocutory orders made by a judge of this Court striking out paragraphs of the appellant’s amended statement of claim (ASOC), and giving summary judgment in favour of the respondent (the ABC) in respect of the causes of action based on those paragraphs: BDR21 v Australian Broadcasting Corporation [2021] FCA 960 (primary judgment or PJ). The appeal was heard in two tranches as a result of notices being served under s 78B of the Judiciary Act 1903 (Cth) upon all of the attorneys-general of the Commonwealth, the states and the territories, none of whom intervened. Leave to appeal was granted during the second hearing during oral argument on 22 March 2023, the Court being satisfied of the importance of the issues raised, and recognising that an arguable case was advanced by the appellant. Accordingly, the appellant was directed to file the notice of appeal.

2    In this appeal and the proceedings below, the appellant is referred to by the pseudonym BDR21 for the reason that the appellant claims to have made certain public interest disclosures (PIDs) under the Public Interest Disclosure Act 2013 (Cth) (PID Act) in respect of which the appellant’s identity ought be protected. An object of the PID Act is to ensure that public officials who make PIDs are protected from adverse consequences relating to such disclosures, including from reprisal action: s 6(c) and Part 2, Division 1, Subdivision B of the PID Act.

3    In the ASOC, the appellant relevantly sought relief under ss 14 and 15 of the PID Act arising from alleged reprisal action taken by the ABC against the appellant in respect of complaints the appellant made. The appellant maintains certain of those complaints were PIDs giving rise to an entitlement to protection. Protections conferred by ss 10, 14, 15 or 16 have effect despite any other provision of a law of the Commonwealth, save for certain exceptions not presently engaged: s 24 of the PID Act.

4    The relevant PID which was the subject of the strike out and summary judgment was made in response to a document which the parties agree was created in circumstances which fall within the description of “proceedings in Parliament” in s 16(2) of the Parliamentary Privileges Act 1987 (Cth) (PP Act). Parliamentary privilege protects those who participate in proceedings in Parliament from being impeached or questioned in any Court or place out of Parliament. The protection originates from article 9 of the Bill of Rights 1688 (UK) (Art 9) and is incorporated into Australian law by s 49 of the Constitution and by s 16 of the PP Act.

5    The issues in this appeal concern the intersection between s 16 of the PP Act and s 24 of the PID Act.

THE RELEVANT CONTEXT

6    On 23 October 2018, the Acting Managing Director of the ABC, Mr David Anderson (later appointed to that position), appeared before a standing committee of the Senate to give evidence at a budget estimates hearing, commonly known as Senate Estimates. He was asked a question concerning a decision to cancel a television show, to which he responded verbally.

7    A question on notice was later issued by the committee to the ABC, seeking more information in relation to the verbal answer given by Mr Anderson. The ABC provided a response in writing to Senate Estimates on 2 November 2018 (the ABC’s response). As mentioned, it is common ground that the ABC’s response constituted “proceedings in Parliament” within the meaning of s 16(2) of the PP Act because it was done “for purposes of or incidental, to the transacting of the business of a … committee”: PJ [36].

8    The ABC’s response included information which is categorised in the ASOC as constituting five statements, each of which is alleged to be false and misleading, collectively described by the appellant as the impugned statements. The making of the impugned statements is collectively described in the ASOC as the False Statements Misconduct.

9    The appellant, in a 14 December 2018 letter to Mr Anderson, alleged that the ABC’s Response was “in very material ways … both untrue and misleading”. A hyperlink to the ABC’s response was included in the December 2018 letter.

10    By his ASOC, the appellant contends that the allegations made in the December 2018 letter about the ABC’s response, defined as the “False Statements Misconduct” constituted “disclosable conduct” within the meaning of s 29 of the PID Act and that this disclosure was a PID within the meaning of s 26 of that Act. The appellant further alleges that the ABC wrongfully took reprisal action because of the PIDs the appellant had made, including those in the December 2018 letter.

11    By an originating application, the appellant sought relief under ss 14 and 15 of the PID Act upon the grounds ultimately set out in the ASOC. The relief available under ss 14 and 15 includes compensation, injunctions, apologies or other orders that the Court considers appropriate, upon a reprisal within the meaning of s 13 of the PID Act being established. The appellant seeks relief in the form of compensation, an injunction and an apology.

THE INTERLOCUTORY APPLICATION

12    The strike out and summary dismissal rulings in issue on this appeal only related to the alleged reprisal action said to have been taken as a result of the ABC’s response, which the parties agree is relevantly part of the proceedings in Parliament for the purpose of s 16(2) of the PP Act. The appellant’s claims in the ASOC extend to other alleged reprisals which are not related to this document and which are not within the ambit of this appeal. Those claims were not struck out and were not the subject of the summary judgment. They remain to be litigated as pleaded in the ASOC.

13    The ABC succeeded before the primary judge on the basis that any part of the pleading which was based on the contention that the December 2018 letter was a PID had no reasonable prospect of success, because s 16(3) of the PP Act precluded evidence being adduced of the material facts and allegations upon which such claims were premised.

14    The primary judge rejected the appellant’s argument that he could rely on the allegations he made in the December 2018 letter about the ABC’s response as disclosable conduct under the PID Act because s 16(3) of the PP Act did not apply by reason of s 24 of the PID Act. The primary judge also rejected the appellant’s alternative argument that even if s 16(3) of the PP Act did apply, his claim based on the December 2018 letter should not have been summarily dismissed but only struck out because he could bring that part of his case in a way that did not breach s 16(3) of the PP Act.

CONCLUSION IN SUMMARY FORM

15    This appeal gives rise to the following questions for determination, which are answered as follows, for the reasons given in the balance of these reasons:

(1)    What is required for Commonwealth legislation to exclude the operation of s 16(3) of the PP Act?

Answer: For Commonwealth legislation to exclude the operation of s 16(3) of the PP Act, a declaration in substance to that effect is required. Legislation with a provision that falls short of meeting that description will not exclude the operation of s 16(3) of the PP Act.

(2)    Assuming there is a conflict between s 16(3) of the PP Act and s 24 of the PID Act, do the terms of s 24 exclude the operation of s 16(3)?

Answer: No. Even if there is a conflict between s 16(3) of the PP Act and s 24 of the PID Act, the terms of s 24 of the PID Act do not amount to a declaration in substance which excludes the operation of s 16(3) of the PP Act.

(3)    Is there a conflict between s 16(3) of the PP Act and s 24 of the PID Act?

Answer: No. There is no conflict between s 16(3) of the PP Act and s 24 of the PID Act which gives rise to any basis for s 24 to exclude the operation of s 16(3). That is, even if:

(a)    contrary to answer (1) above, there is no need for a declaration in substance in order to exclude the operation of s 16(3) of the PP Act,

(b)    contrary to answer (2) above, s 24 is such a declaration in substance,

the scope of s 24 of the PID Act does not inhibit the operation of s 16(3) of the PP Act in this case.

(4)    Did the primary judge err in striking out the paragraphs of the ASOC?

Answer: No.

(5)    Did the primary judge err in giving summary judgment in respect of causes of action as pleaded in the struck out paragraphs of the ASOC?

Answer: No. But it is necessary to reformulate the orders made. The primary judge erred in the formulation of the order granting summary judgment, but did not err in concluding that there should be summary judgment in respect of the causes of action advanced in the ASOC that relied upon the contents of the December 2018 letter.

16    It follows that the summary judgment order is to be set aside and remade by the Court with input from the parties. The appeal is otherwise dismissed, with no order as to costs by reason of s 18 of the PID Act.

LEGISLATIVE PROVISIONS

17    The issues in this appeal trace back to s 49 of the Constitution and to Art 9 of the Bill of Rights. It is necessary for the purpose of considering the interaction between s 16(3) of the PP Act and s 24 of the PID Act to begin by having regard to the origin of the PP Act.

The Constitution

18    Section 49 of the Constitution provides:

Privileges etc. of Houses.

The powers, privileges, and immunities of the Senate and of the House of Representatives, and of the members and the committees of each House, shall be such as are declared by the Parliament, and until declared shall be those of the Commons House of Parliament of the United Kingdom, and of its members and committees, at the establishment of the Commonwealth.

Art 9 of the Bill of Rights 1688 (UK)

19    By virtue of s 49 of the Constitution, at the time of Federation and until declared to the contrary by the Parliament, parliamentary privilege was provided by Art 9, with case law determining its metes and bounds, non-exhaustively, over time. Article 9 provides (verbatim):

Freedom of Speech.

That the Freedome of Speech and Debates or Proceedings in Parlyament ought not to be impeached or questioned in any Court or Place out of Parlyament.

Parliamentary Privileges Act 1987 (Cth) (PP Act)

20    It was not until the passage of the PP Act, that the powers, privileges, and immunities of the Senate and of the House of Representatives, and of the members and the committees of each House, were declared by the Parliament. The long title of the PP Act is “An Act to declare the powers, privileges and immunities of each House of the Parliament and of the members and committees of each House, and for related purposes”.

21    Section 5 of the PP Act provides as follows:

Powers, privileges and immunities

Except to the extent that this Act expressly provides otherwise, the powers, privileges and immunities of each House, and of the members and the committees of each House, as in force under section 49 of the Constitution immediately before the commencement of this Act, continue in force.

22    Section 16(1) to (3) of the PP Act provides as follows (emphasis added):

Parliamentary privilege in court proceedings

(1)    For the avoidance of doubt, it is hereby declared and enacted that the provisions of article 9 of the Bill of Rights, 1688 apply in relation to the Parliament of the Commonwealth and, as so applying, are to be taken to have, in addition to any other operation, the effect of the subsequent provisions of this section.

(2)    For the purposes of the provisions of article 9 of the Bill of Rights, 1688 as applying in relation to the Parliament, and for the purposes of this section, proceedings in Parliament means all words spoken and acts done in the course of, or for purposes of or incidental to, the transacting of the business of a House or of a committee, and, without limiting the generality of the foregoing, includes:

(a)    the giving of evidence before a House or a committee, and evidence so given;

(b)    the presentation or submission of a document to a House or a committee;

(c)    the preparation of a document for purposes of or incidental to the transacting of any such business; and

(d)    the formulation, making or publication of a document, including a report, by or pursuant to an order of a House or a committee and the document so formulated, made or published.

(3)    In proceedings in any court or tribunal, it is not lawful for evidence to be tendered or received, questions asked or statements, submissions or comments made, concerning proceedings in Parliament, by way of, or for the purpose of:

(a)    questioning or relying on the truth, motive, intention or good faith of anything forming part of those proceedings in Parliament;

(b)    otherwise questioning or establishing the credibility, motive, intention or good faith of any person; or

(c)    drawing, or inviting the drawing of, inferences or conclusions wholly or partly from anything forming part of those proceedings in Parliament.

23    The definition of “committee” in s 3 is:

Interpretation

(1)    In this Act, unless the contrary intention appears:

…

committee means:

(a)    a committee of a House or of both Houses, including a committee of a whole House and a committee established by an Act; or

(b)    a sub-committee of a committee referred to in paragraph (a).

Public Interest Disclosure Act 2013 (Cth) (PID Act)

24    The primary judge summarised the key provisions of the PID Act as follows:

[38]    Part 2 of the PID Act establishes a regime to ensure that public officials who make public interest disclosures are protected from reprisals relating to those disclosures. The fundamental concepts for the purposes of Part 2 of the PID Act are:

(a)    the meaning of public interest disclosure;

(b)    the meaning of disclosable conduct; and

(c)    what constitutes taking a reprisal.

[39]    Section 26 of the PID Act relevantly provides:

(1)    A disclosure of information is a public interest disclosure if:

(a)    the disclosures made by a person (the discloser) who is, or has been, a public official; and

(b)    the recipient of the information is a person of the kind referred to in column 2 of an item of the following table; and

(c)    all the further requirements set out in column 3 of that item are met …

[40]    For present purposes, Item 1 in the table to s 26(1) of the PID Act is relevant. Item 1 is identified in Column 1 of the table as an “internal disclosure”. In Column 2, the recipient of an Item 1 disclosure is identified as “an authorised internal recipient, or a supervisor of the discloser”.

[41]    The “further requirements” for an Item 1 disclosure are identified in Column 3 as:

The information tends to show, or the discloser believes on reasonable grounds that the information tends to show, one or more instances of disclosable conduct.

[42]    The meaning of disclosable conduct is addressed in s 29 of the PID Act. For present purposes it relevantly includes conduct:

(a)    engaged in by an agency that contravenes a law of the Commonwealth, a State or a Territory (item 1 in the s 29(1) table) (defined in the ASOC as PID Unlawful Conduct);

(b)    engaged in by an agency that constitutes maladministration, including conduct that is based in whole or in part on improper motives, is unreasonable, unjust or oppressive or is negligent (item 4 in the s 29(1) table) (defined in the ASOC as PID Maladministration); and

(c)    engaged in by a public official, that could, if proved, give reasonable grounds for disciplinary action against the public official (s 29(2)(b)) (defined in the ASOC as PID Misconduct).

[43]    An act or omission that may constitute the taking of reprisal action is identified in s 13(1) of the PID Act. Section 13(1) provides:

(1)    A person (the first person) takes a reprisal against another person (the second person) if:

(a)    the first person causes (by act or omission) any detriment to the second person; and

(b)    when the act or omission occurs, the first person believes or suspects that the second person or any other person made, may have made or proposes to make a public interest disclosure [defined in the ASOC as a PID Belief]; and

(c)    that belief or suspicion is the reason for [sic] part of the reason, for the act or omission.

[44]    For present purposes, it is the second element, the formation of a PID Belief, that is relevant.

[45]    Section 13(2) defines what is meant by detriment. It provides:

(2)    Detriment includes any disadvantage, including (without limitation) any of the following:

(a)    dismissal of an employee;

(b)    injury of an employee in his or her employment;

(c)    alteration of an employee’s position to his or her detriment;

(d)    discrimination between an employee and other employees of the same employer.

25    As noted at PJ [43] reproduced above, the ASOC defines as a “PID Belief” the part of the definition of “takes a reprisal” in s 13(1)(b) of the PID Act:

A person (the first person) takes a reprisal against another person (the second person) if … when the act or omission occurs, the first person believes or suspects that the second person or any other person made, may have made or proposes to make a public interest disclosure.

26    That definition needs to be read with the further requirements of a disclosure in s 26(1), Item 1, Column 3 of the PID Act, set out in PJ [41], also reproduced above:

The information tends to show, or the discloser believes on reasonable grounds that the information tends to show, one or more instances of disclosable conduct.

27    Section 24 of the PID Act, which is a focal point of this appeal, provides:

Protections have effect despite other Commonwealth laws

Section 10, 14, 15 or 16 has effect despite any other provision of a law of the Commonwealth, unless:

(a)    the provision is enacted after the commencement of this section; and

(b)    the provision is expressed to have effect despite this Part or that section.

28    The four provisions referred to in the chapeau to s 24 of the PID Act deal with immunity from suit for making a PID (s 10), and the remedies for proven reprisals, being compensation (s 14), injunctions, apologies and other orders (s 15), and reinstatement (s 16). As noted above, the appellant seeks relief by way of compensation, an injunction and an apology. As also mentioned, the argument that the appellant advances is that s 24 of the PID Act excludes the operation of s 16(3) of the PP Act from each of ss 10, 14, 15 and 16 of the PID Act.

29    Section 10 of the PID Act provides:

Protection of disclosers

(1)    If an individual makes a public interest disclosure:

(a)    the individual is not subject to any civil, criminal or administrative liability (including disciplinary action) for making the public interest disclosure; and

(b)    no contractual or other remedy may be enforced, and no contractual or other right may be exercised, against the individual on the basis of the public interest disclosure.

(2)    Without limiting subsection (1):

(a)    the individual has absolute privilege in proceedings for defamation in respect of the public interest disclosure; and

(b)    a contract to which the individual is a party must not be terminated on the basis that the public interest disclosure constitutes a breach of the contract.

30    Sections 14, 15 and 16 of the PID Act provide:

14 Compensation

(1)    If the Federal Court or Federal Circuit and Family Court of Australia (Division 2) is satisfied, on the application of a person (the applicant), that another person (the respondent) took or threatened to take, or is taking or threatening to take, a reprisal against the applicant, the Court may:

(a)    in any case—make an order requiring the respondent to compensate the applicant for loss, damage or injury as a result of the reprisal or threat; or

(b)    if the Court is satisfied that the respondent took or threatened to take, or is taking or threatening to take, the reprisal in connection with the respondent’s position as an employee:

(i)    make an order requiring the respondent to compensate the applicant for a part of loss, damage or injury as a result of the reprisal or threat, and make another order requiring the respondent’s employer to compensate the applicant for a part of loss, damage or injury as a result of the reprisal or threat; or

(ii)    make an order requiring the respondent and the respondent’s employer jointly to compensate the applicant for loss, damage or injury as a result of the reprisal or threat; or

(iii)    make an order requiring the respondent’s employer to compensate the applicant for loss, damage or injury as a result of the reprisal or threat.

(2)    The Federal Court or Federal Circuit and Family Court of Australia (Division 2) must not make an order under paragraph (1)(b) if the respondent’s employer establishes that it took reasonable precautions, and exercised due diligence, to avoid the reprisal or threat.

(3)    If the Federal Court or Federal Circuit and Family Court of Australia (Division 2) makes an order under subparagraph (1)(b)(ii), the respondent and the respondent’s employer are jointly and severally liable to pay the compensation concerned.

15 Injunctions, apologies and other orders

(1)    If the Federal Court or Federal Circuit and Family Court of Australia (Division 2) is satisfied, on the application of a person (the applicant), that another person (the respondent) took or threatened to take, or is taking or threatening to take, a reprisal against the applicant, the Court may make any or all of the following orders:

(a)    an order granting an injunction, on such terms as the Court thinks appropriate:

(i)    restraining the respondent from taking, or threatening to take, the reprisal; or

(ii)    if the reprisal or threat involves refusing or failing to do something—requiring the respondent to do that thing;

(b)    an order requiring the respondent to apologise to the applicant for taking, or threatening to take, the reprisal;

(c)    any other order the Court thinks appropriate.

(2)    If the Federal Court or Federal Circuit and Family Court of Australia (Division 2) has power under subsection (1) to grant an injunction restraining a person from engaging in particular conduct, or requiring a person to do anything, the Court may make any other orders (including granting an injunction) that it thinks appropriate against any other person who has:

(a)    aided, abetted, counselled or procured the conduct against the applicant; or

(b)    induced the conduct against the applicant, whether through threats or promises or otherwise; or

(c)    been in any way (directly or indirectly) knowingly concerned in or a party to the conduct against the applicant; or

(d)    conspired with others to effect the conduct against the applicant.

16 Reinstatement

If the Federal Court or Federal Circuit and Family Court of Australia (Division 2) is satisfied, on the application of a person (the applicant), that:

(a)    another person (the respondent) has taken, or is taking, a reprisal against the applicant; and

(b)    the applicant is or was employed in a particular position with the respondent; and

(c)    the reprisal wholly or partly consists, or consisted, of the respondent terminating, or purporting to terminate, the applicant’s employment;

the Court may order that the applicant be reinstated in that position or a position at a comparable level.

31    The appellant also relied on s 80 of the PID Act, which provides:

This Act does not affect the law relating to legal professional privilege.

32    Finally, s 18 of the PID Act provides that in proceedings (including an appeal) in a court in relation to a matter arising under section 14, 15 or 16, the applicant must not be ordered by the court to pay costs incurred by another party to the proceedings, except in certain prescribed circumstances, none of which are relevant to the present appeal.

THE PRIMARY JUDGE’S DECISION

33    The primary judge characterised the parts of the ASOC that his Honour struck out as alleging that:

(a)    the ABC’s response was false and misleading and as such constituted disclosable conduct within the meaning of the PID Act;

(b)    the December 2018 letter about the ABC’s response constituted a PID within the meaning of s 26 of the PID Act (with a declaration being sought to that effect); and

(c)    the ABC took reprisal action against the appellant within the meaning of s 13 of the PID Act in response to the alleged PID comprised of the December 2018 letter (with a declaration being sought to that effect).

34    The paragraphs in which these matters were alleged were struck out because the primary judge found they contravened s 16(3)(c) of the PP Act. Summary judgment was given in relation to the causes of action to which those paragraphs related. The ABC’s Notice of Contention seeks to include contraventions of s 16(3)(a) and (b) as additional bases justifying the strike out.

35    The competing arguments were summarised by the primary judge, with his Honour accepting those advanced by the ABC rather than those advanced by the appellant. The essence of the ABC’s argument which found favour with his Honour (see PJ [59]-[66]), was as follows:

(a)    The impugned statements pleaded in the ASOC replicated statements made in the ABC’s response and as a result contravened s 16(3) of the PP Act. Having regard to s 16(2) which has the effect of extending the protection afforded by s 16(3) to the preparation of internal ABC documents for the purposes of, or incidental to, giving evidence to, or submitting a document to, a parliamentary committee that consequence could not be cured by recourse to an artificial pleading device which alleged that the statements were made in documents created for the purposes of the ABC itself.

(b)    The appellant’s False Statements Misconduct claim, relying as it did upon the December 2018 letter about the ABC’s response as the relevant PID, necessarily entailed alleging that the statements in the ABC’s response were false or misleading (whether or not that was in fact so).

(c)    As a consequence, the appellant would need to adduce evidence and make submissions for purposes prohibited by each of s 16(3)(a), (b) and (c) in order to establish that (as alleged):

(i)    each of the statements ultimately made in the ABC’s response (having been made previously) was false;

(ii)    the December 2018 letter was relevantly a PID; and

(iii)    staff of the ABC, and therefore the ABC, held a PID Belief based on their knowledge of the December 2018 letter (remembering that this letter was about the ABC response).

(d)    The ABC submitted that the appellant’s False Statements Misconduct claim could not be advanced independently of the PID relied upon and the corresponding PID Belief because it was:

(i)    the presence of the alleged false statements in the ABC’s response that was characterised as disclosable conduct;

(ii)    the disclosure made by the December 2018 letter alleging that the impugned statements were untrue or misleading; and

(iii)    the reprisals said to have resulted from the sending of the December 2018 letter,

that was relied upon by the appellant to engage the PID Act and prove an entitlement to the relief sought.

(e)    Although it was conceded by the ABC that the Court was not necessarily required to make a positive finding that the ABC’s response was in fact false or misleading, it would still be necessary for the appellant to establish either a belief or suspicion on the part of the ABC (via its relevant staff members) that the information in the December 2018 letter tended to show disclosable conduct, or that the appellant believed on reasonable grounds that it tended to show disclosable conduct. As noted at PJ [43], reproduced above at [24], and explained at [25]-[26], this is defined in the ASOC as a “PID Belief”. Using the ABC’s response to which the December 2018 letter related as a basis for inferring that a PID Belief was held by the relevant ABC staff would necessarily entail a breach of s 16(3)(c).

(f)    In support of this argument, the ABC relied upon the observation by Pincus JA in Sellars v Coleman [2000] QCA 465; (2001) 2 Qd R 565 at [12] (emphasis in original):

Since any evidence, question, submission or comment in a court or tribunal would ordinarily have the purpose of leading to some conclusion – otherwise it would presumably be irrelevant – s. 16(3) goes, as a practical matter, close to saying that Parliamentary proceedings may not be discussed in any court or tribunal. The qualification one must make to this is that, if it can be shown that the question, statement, submission or comment about Parliamentary proceedings is not intended to lead (either by itself or with other matters) to any conclusion whatever, then it is lawful. [In Rann v Olsen [2000] SASC 83; 76 SARS 450,] Mr Olsen publicly accused Mr Rann of having lied in a Parliamentary proceeding and Mr Rann sued for defamation. It was held that Mr Olsen was validly prevented by s. 16(3) from trying to prove that his accusation was true – a judicial conclusion which would tend to inhibit free discussion of Parliamentary matters.

(g)    To the extent that the alleged ABC reprisal action is restricted to a PID Belief referrable to knowledge of the December 2018 letter, those allegations must also be struck out, noting that this does not extend to ASOC paragraphs in which the PID Belief is alleged to arise independently of knowledge of that letter.

36    The essence of the appellant’s arguments to the contrary, were as follows.

37    First, the appellant contended that, following Rann v Olsen [2000] SASC 83 at [74]; 76 SASR 450 at [73], where Doyle CJ stated, in relation to the application of s 16(3) of the PP Act, that it entails a “consideration of what is to be done (evidence, questions or submissions), whether that concerns proceedings in Parliament, and, of critical importance, the purposes with which it is done”. As such, the ABC bore the onus, which it had not discharged, of demonstrating that statements that do not refer to parliamentary proceedings are nevertheless statements concerning proceedings in Parliament.

38    The primary judge rejected this argument: see PJ [68]-[75]. His Honour said that the flaw in this argument was that it ignored the context in which the impugned paragraphs appear in the ASOC, pleading material facts to establish causes of action for contraventions of the PID Act, and that necessarily if those causes of action depend upon other paragraphs that breach s 16(3), both should be struck out. His Honour observed that this flaw was highlighted by [103] of the ASOC, which the appellant had submitted concerned the December 2018 letter, not parliamentary proceedings, yet that letter was concerned with the ABC’s response, which in turn was written in answer to the question on notice, such that the letter was manifestly concerned with parliamentary proceedings, with no reference being made to any conduct other than that response. His Honour also said that the suggestion by the appellant that this could be cured by removing the reference to “ABC Evidence to Senate Estimates” in the subject line would impermissibly elevate form over substance and failed to come to terms with the content of the December 2018 letter.

39    Second, the appellant had contended that it could be established that the December 2018 letter was a PID and that the relevant ABC staff members held a PID Belief by inferences and conclusions drawn from material that did not form part of proceedings in Parliament, referring to an affidavit, a letter, an email and a report for that purpose. The definition of PID Belief relying upon s 13(1)(b) of the PID Act is central to this argument. The appellant argues that his reliance on the December 2018 letter as a PID does not preclude proving the existence of the PID Belief without proscribed reliance on the actual contents of that letter, even if s 16(3) of the PP Act does apply.

40    The primary judge rejected those arguments: see PJ [76]-[91]. In doing so, his Honour noted that in order to establish that the December 2018 letter was (as pleaded) a PID, s 26(1) of the PID Act, at Item 1, Column 3, required the appellant to demonstrate that the information in that letter tended to show, or that the appellant believed on reasonable grounds that it tended to show, disclosable conduct. His Honour considered each of the affidavit, letter, email and report, and concluded that none of them could establish either of those necessary features. Further, his Honour observed that in order for the Court to reach that conclusion, it was unavoidable that the Court would have to look at the December 2018 letter and reach its own conclusion about whether it tended to show disclosable conduct, or whether the appellant genuinely believed on reasonable grounds that it tended to show disclosable conduct, rather than rely upon what the appellant or a relevant ABC staff member might say or imply about it. That is, the Court had to be satisfied that it had been established that the December 2018 letter was a PID.

41    The primary judge further reasoned that, given the pleading in the ASOC that ABC staff members were aware of the December 2018 letter and formed a PID belief based upon it, the factual matrix would necessarily include the contents of that letter. Even if admissions could be obtained that the staff members were aware of the letter and that it raised questions of serious misconduct, this would be asking the Court to draw inferences or form conclusions based on that letter, and this would be so even if the letter itself was not tendered in direct contravention of s 16(3)(c) of the PP Act.

42    Third, in response to evidence adduced during the proceeding before the primary judge by an affidavit from the appellant that there was a PID Act purpose behind the December 2018 letter, the primary judge found this did not assist as it also enlivened the prohibition in s 16(3): see PJ [92]-[94].

43    Fourth, the primary judge’s response to the appellant’s reliance upon a statement in British American Tobacco Australia Ltd v Secretary, Department of Health and Ageing [2011] FCAFC 107; 195 FCR 123 at [55] to the effect that while the Court should not be astute to confine the scope of parliamentary privilege, nor give effect to exorbitant claims, was that this case did not assist for two reasons: see PJ [95]-[100]. His Honour reasoned that:

(a)    The context in which that statement was made in American Tobacco Australia was a question of whether s 16(3) applied to any stranger who republished a document tabled in the Senate on a government website, in that case officers of the executive government, being materially different circumstances to this case.

(b)    The contention that s 16(3) applied to the December 2018 letter could not reasonably be characterised as exorbitant. That was because the letter alleged that the ABC’s response to a senate committee question on notice contained statements that were untrue and misleading, with the appellant making the same allegation in the proceeding before his Honour by the contention that each of the impugned statements referred to in the letter were false or misleading in a material particular. The resolution of those allegations would necessarily involve the tender of evidence falling within s 16(3)(c).

44    Fifth, the appellant argued that acceding to the strike out or summary judgment application by the ABC would significantly interfere with the appellant’s right to be protected from the adverse consequences of making a PID, as provided for by the PID Act, which was enacted after the PP Act, and includes as an object seeking to ensure public officers who made a PID were supported and protected from such consequences. The appellant relied upon s 24 of the PID Act, which was said to illustrate that in passing that Act, the Parliament had considered and explicitly addressed the relationship between the PID Act and any other existing provision of Commonwealth law, which included the PP Act.

45    In rejecting those arguments (see PJ [101]-[106]), the primary judge found that the reliance on s 24 was misplaced because it did not purport to apply to any provision of the PID Act other than the limited scope of ss 10 and 14 to 16, and in any event could not abrogate parliamentary privilege without utmost clarity, citing Hammond v The Commonwealth [1982] HCA 42; 152 CLR 188 per Murphy J at 200.

46    Finally, the appellant relied on s 80 of the PID Act, which expressly provides that it did not affect the law relating to legal professional privilege, contending that it could be assumed that Parliament would have added a similar provision addressing parliamentary privilege had it wanted to preserve it or limit the operation of the PID Act. The primary judge rejected that argument (see PJ [107]-[110]), relying upon settled law that fundamental common law rights and privileges, which should extend to parliamentary privilege, are only abrogated or modified by unambiguous and unmistakable language.

47    The primary judge also found that, even taking ss 24 and 80 together, they did not indicate any intention of Parliament that the PID Act should have effect despite s 16(3) of the PP Act: PJ [110].

THE GROUNDS OF APPEAL

48    The notice of appeal was compendious, with 11 grounds. At the time the appellant lodged his first written submissions, he was self-represented. By the time his written submissions in reply were lodged, the appellant had the benefit of legal representation. This resulted in a refinement and increased focus being brought to bear on the manner in which the appeal was presented, for which the Court is grateful.

49    As argued, the applicant’s submissions fell into two main categories.

50    First, the appellant submits that the vindication of rights created by ss 14 to 16 of the PID Act is not subject to s 16 of the PP Act. The appellant argues that ss 24 and 80 of the PID Act evidence an intention of Parliament to allow sections of the PID Act to have effect, despite s 16 of the PP Act: see the summary above at [30]-[32]. If that is accepted, then the appellant was at liberty to plead and prove facts that would otherwise apparently contravene s 16 of the PP Act. The appellant contends that the primary judge erred in both summarily dismissing the relevant parts of the applicant’s claims and also in striking out paragraphs of the ASOC.

51    Second, and as an alternative to the first category of submissions, the appellant submits that the causes of action that were summarily dismissed could have been pleaded and proved in a way which did not contravene s 16 of the PP Act. As such, the deficiencies in pleading were not “incurable”, and so the primary judge erred in giving summary judgment for the respondent on these causes of action, instead of merely striking out any offending paragraphs and granting leave to re-plead. The application to adduce fresh evidence is relevant to this aspect of the proposed appeal, it being submitted that the proposed fresh evidence illustrates one possible pathway by which the summarily dismissed causes of action might be established without contravening the PP Act.

CONSIDERATION

52    The appellant’s first argument is addressed below by considering the following issues:

(1)    What is required for Commonwealth legislation to exclude the operation of s 16(3) of the PP Act?

(2)    Assuming there is a conflict between s 16(3) of the PP Act and s 24 of the PID Act, are the terms of s 24 such as to exclude the operation of s 16(3)?

(3)    Is there a conflict between s 16(3) of the PP Act and s 24 of the PID Act?

(4)    Did the primary judge err in striking out the impugned paragraphs?

53    The appellant’s second, and alternative, argument requires consideration of whether maintainable causes of action under the PID Act based upon the December 2018 letter being a PID are able to be re-pleaded, because the causes of action can be pleaded and proved in a manner that does not contravene s 16(3) of the PP Act. This argument is considered below as Issue (5), namely whether the primary judge erred in giving summary judgment in respect of the causes of action to which the struck out paragraphs related, so as to preclude those claims being re-pleaded.

The appellant’s first argument: Is s 16(3) of the PP Act excluded in the present context?

Issue (1):    What is required for Commonwealth legislation to exclude the operation of s 16(3) of the PP Act?

Issue (2):    Assuming there is a conflict between s 16(3) of the PP Act and s 24 of the PID Act, are the terms of s 24 such as to exclude the operation of s 16(3)?

54    It is convenient to deal with these two issues together, because, while they are different, and the second issue involves an assumption that is addressed by consideration of the third issue, the arguments advanced and their resolution are intertwined and closely related.

55    During the course of the first appeal hearing, the Court raised a question about the requirements imposed by s 49 of the Constitution in relation to altering the operation of parliamentary privilege once it has been provided for by Parliament. Section 49 of the Constitution is reproduced at [18] above. The issue raised went to the interpretation of s 16(3) of the PP Act in the context of s 49 of the Constitution, not to the validity of s 16(3) per se. The s 78B notices to which reference was made at the outset were then served. As noted, none of the attorneys-general intervened.

56    The competing arguments as to the effect of s 24 of the PID Act in relation to s 16(3) of the PP Act involve the interpretation of the reference in s 49 of the Constitution to powers, privileges and immunities of both houses of parliament being “such as are declared” by Parliament, as well as the terms of s 16(1) of the PP Act referring to “declared and enacted”. It is a question of statutory interpretation. No question of constitutional validity of any provision of either the PP Act or the PID Act arose in the appeal.

57    The ABC raised for the consideration of the Court whether this question of interpretation required determination, citing a long line of High Court authorities, commencing with Lambert v Weichelt (1954) 28 ALJR 282 at 283, to the effect that it is not the practice of the Court to investigate and decide a constitutional question unless there exists a state of facts which make it necessary in order to do justice to the case and to the parties: see also LibertyWorks Inc v Commonwealth of Australia [2021] HCA 18; 95 ALJR 490 at [90], [116] and [125] and the cases cited; and CMU16 v Minister for Immigration and Border Protection [2020] FCAFC 104; 277 FCR 201 at [64]-[65] (noting that in CMU16 this was a secondary reason for declining to determine the constitutional question in light of the tenuous factual basis for it arising at all).

58    The restraint identified in Lambert is of particular importance when the question involves not just the interpretation of the Constitution, but also the validity of the legislation in question, not least because a finding of invalidity may have wider and more serious implications than a determination confined to interpretation: see LibertyWorks at [90]; and Knight v Victoria [2017] HCA 29; 261 CLR 306 at [33]. That greater reason for restraint is absent given the lack of any question of invalidity.

59    The question as to constitutional interpretation arose on an undisputed aspect of the facts of this case, and was able to be fully ventilated in both written and oral submissions. The facts in this case involve an attempt to sue upon the basis of material said to give rise to a PID that it is accepted involves, and plainly does involve, proceedings in Parliament in the extended sense provided for by s 16(2) of the PP Act. The only way to avoid the question of constitutional interpretation in the present appeal is to confine the Court’s consideration to the contested third issue as to whether a conflict arises between s 16(3) of the PP Act and s 24 of the PID Act, and whether the latter is confined to the provisions to which it expressly refers. There is possible scope for a different conclusion to be reached on that point, which if wrongly decided could leave the dispute unresolved and lead to a further appeal. The determination of the first two issues, involving the interpretation of s 49 of the Constitution, is arguably less contestable and capable of determining the outcome of the appeal irrespective of the conclusion reached on the issue of whether there is a conflict between s 16(3) and s 24. It is therefore desirable, and arguably also necessary, to decide the constitutional question, as well as the conflict question as a secondary issue, in order to do justice and determine the rights of the parties as to any limits on the case that the appellant is entitled to bring.

60    The difference between the parties lies in the continuing effect of s 49 on what is required to change the operation of parliamentary privilege, and whether that requirement has been met.

61    The appellant contends that s 24 of the PID Act displaces s 16(3) of the PP Act from having any application at all. The substance of the appellant’s argument is that once the legislative power to state what constitutes parliamentary privilege provided for by s 49 of the Constitution has been exercised, the product of that exercise of power, being the PP Act, is like any ordinary Commonwealth statute, with its operation able to be changed by amendment or by the operation of another Commonwealth statute, whether directly and expressly, indirectly, or by implication. The appellant submits that the constitutional conception of a “declaration”, properly understood, does not support any special rule of construction or especially strong presumption requiring clear words to override it. The appellant submits that a “declaration” is an ordinary enactment subject to ordinary principles of statutory construction. On this argument, the reference to “declared” in s 49 of the Constitution and the use of the word “declare” in the long title of the PP Act, and of the phrase “declared and enacted” in s 16(1), do not render the PP Act as being somehow constitutionally entrenched so as to displace s 24 of the PID Act. The substance of the argument is that nothing is needed beyond what appears in s 24 of the PID Act in order to exclude altogether the operation of s 16(3) of the PP Act upon the provisions of the PID Act referred to therein.

62    The ABC contends that s 24 of the PID Act does not displace s 16(3) of the PP Act because:

(a)    in order for such displacement to take place, s 24 had to constitute, in substance, a “declaration” for the purposes of s 49 of the Constitution, which it does not;

(b)    alternatively, given what is submitted to be the “constitutional significance” of s 16 of the PP Act, clear words or a necessary implication is required to displace the operation of s 16(3), and s 24 of the PID is insufficient on both counts; and

(c)    in any event, there is no conflict between the two provisions which accordingly can, and do, co-exist (this argument is addressed as Issue (3) below).

63    The appellant submits that the distinction between the ABC’s first two arguments arising from s 49 of the Constitution is somewhat illusory. There is some force to that submission. However, there is a subtle distinction, rather than a bright line, between what is in substance a declaration, and a necessary implication or clear words falling short of being in substance a declaration. Even so, the ABC’s s 49 arguments tend to overlap rather than being mutually exclusive.

64    The appellant further argues that the enactment of the PP Act, and the enactment of s 24 of the PID Act if it does exclude the operation of the PP Act, is an exercise of the legislative power bestowed upon Parliament by s 51(xxxvi) of the Constitution, rather than the exercise of any power bestowed by s 49 itself. Section 51(xxxvi) provides:

The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to:— …

…

(xxxvi)    Matters in respect of which this Constitution makes provision until the Parliament otherwise provides:

…

65    The ABC contends to the contrary that the relevant power to legislate resides in s 49 itself, without any need to resort to s 51(xxxvi), but also contends that this difference does not matter for present purposes. The appellant’s argument does not appear to sit well with the reasoning of Dixon CJ in R v Richards; Ex parte Fitzpatrick and Browne [1955] HCA 36; 92 CLR 157 at 168-169, discussed below. However, it is not necessary to decide whether the appellant’s argument is correct or not in order to decide this appeal and it is therefore preferable not to do so.

66    Until the enactment of the PP Act, parliamentary privilege was, by virtue of s 49 of the Constitution, provided by Art 9. Article 9 is extracted at [19] above.

67    It is not in dispute that the PP Act was a declaration of the powers, privileges and immunities of the Senate and the House of Representatives pursuant to s 49. That overt declaration, and enactment, by statute, was a response to a criminal prosecution in which cross-examination of prosecution witnesses on evidence they had given in an earlier Senate Select Committee proceeding had been permitted, over the objection of the President of the Senate: see the discussion of this history by French J, then a member of this Court, in Crane v Gething [2000] FCA 45; 97 FCR 9 at [40]. After noting the long title of the PP Act and s 5, his Honour at [41] observed that it does not constitute an exhaustive code of parliamentary privilege. In relation to s 16, his Honour said that it “may be seen from the opening words of s 16 that it engrafts the provisions of Article 9 and declares their effect to extend to that of the subsequent provisions of s 16. That does not codify or limit the operation of Article 9 in Australia for its declared effect is “in addition to any other operation”: [41].

68    No suggestion has been made by the appellant that s 24 of the PID Act effects any change to s 5 of the PP Act. Rather, it is contended that s 5 does not, or alternatively cannot validly, confine the means of changing the scope of parliamentary privilege to amendment of the PP Act in exclusion to all other means, because that would amount to an impermissible entrenchment of that Act. The ABC only relies upon s 5 as a further indication in support of its alternative argument, if it be needed, that the Parliament intended any changes to parliamentary privilege be by clear words or necessary implication.

69    Section 5 of the PP Act is not needed at all for the ABC’s primary argument that s 24 of the PID Act does not meet the imperative in s 49 of the Constitution of being a declaration. In all the circumstances, resorting to s 5 does not assist in relation to the second issue either, because it is not necessary if the ABC’s argument otherwise prevails, and will not remedy the situation if that argument does not prevail. It follows that s 5 of the PP Act does not need to be considered further.

70    In relation to the use of the word “enacted” in s 16(1) of the PP Act, in the phrase “declared and enacted”, the ABC suggests that the reference to “enacted” may have been to make it clear that s 16 was supported not just by s 49 of the Constitution, but perhaps, if necessary, also by s 51(xxxvi) (“matters in respect of which this Constitution makes provision”) and by s 51(xxxix) (“matters incidental to the execution of any power vested by this Constitution in the Parliament or in either House thereof”). That kind of reasoning is adverted to in Fitzpatrick and Browne at 168-169, discussed at [88]-[91] below. By way of example, the ABC points out that s 16(5) of the PP Act is not just a declaration of privileges, but an enactment of what does not constitute a breach, such as the use of Hansard (or, it may be added, other authorised publications) to construe an enactment. This explanation for the reference to “enacted” in s 16(1) is logical, but again does not need to be decided. It is, however, consistent with s 16 constituting both an express declaration for the purposes of articulating the powers, privileges and immunities, and as well an ordinary enactment in the exercise of legislative powers in relation to matters that do not fall directly within s 49 of the Constitution.

71    The ABC submits that the Parliament can only displace the operation of s 16(3) by making a further declaration for the purposes of s 49 of the Constitution, while accepting that this can be achieved by a provision which is substantively to that effect, rather than necessarily having to be express, such as by the use of “declared” or “declaration”. The ABC contends that the minimum requirement is a positive, explicit or formal statement, citing the Macquarie Online Dictionary definition of “declaration”. This requirement is said to be supported by the subject matter and purpose of s 49 of the Constitution, with its effect being that Art 9 singularly governed the privileges of the Parliament until the PP Act and in particular s 16 was enacted.

72    The ABC draws a contrast between the use of the word “declared” in the phrase “shall be such as are declared by the Parliament” in s 49 and the use of the phrase “may make rules and orders” in s 50 of the Constitution, describing this as a strong contextual indicator that the effect of s 49 is that a statute made pursuant to s 49 is distinct from an ordinary statute, made, for example, under s 51 and from the rules and orders referred to in s 50.

73    Particular reliance is placed by the ABC on the importance of parliamentary privilege in the system of representative democracy, and in particular the protection of freedom of speech in Parliament and its committees. Thus, it is argued that it is fitting that Parliament should only be able to modify the operation of Art 9 in the first instance, and subsequently to modify privileges that have been declared in accordance with s 49, in a reasonably clear fashion, with nothing less than express words or clear intention being enough.

74    The ABC therefore contends that s 24 of the PID Act is not sufficient to amount to a declaration for the purposes of s 49. That is argued to be especially so because neither s 24 of the PID Act, nor the provisions to which it refers, ss 10 and 14 to 16 of that Act, make any reference to parliamentary privilege, nor to anything to do with either House, or of their members or committees. Nor do they purport to regulate the adducing of evidence or the making of statements, submissions or comments at all, let alone concerning proceedings in Parliament, directly or indirectly.

75    Further, the ABC submits, no support is to be gleaned from any of the extrinsic materials for the enactment of s 24 of the PID Act, or any intention for it to affect parliamentary privilege. This contrasts with such materials for the enactment of s 37(3) of the Auditor-General Act 1997 (Cth), which provides that the Auditor-General cannot be required and is not permitted to disclose certain information to either House, a member, a committee or a joint committee, which is clearly enough directed to the subject matter of s 16(2) of the PP Act. The Explanatory Memorandum to the Auditor-General Bill 1996 (Cth) at [71] confirmed that the effect of s 37(3) was a declaration for the purposes of s 49 of the Constitution.

76    In the alternative, even if something less than what is in substance a declaration will suffice to displace s 16(3), the ABC argues that clear words or necessary intendment falling short of being in substance a declaration is still required, which is wholly absent from s 24 of the PID Act. That is said to be because, contrary to the appellant’s argument, s 16 of the PP Act is not an ordinary statutory provision, by reason of the fundamental role of parliamentary privilege to the system of representative democracy, reflected in s 49 of the Constitution. Section 49, unlike s 51, is not expressed simply as a power to make laws, but rather prescribes what the privileges of the Parliament are, being such as are declared by Parliament. The ABC argues that this distinction gives content to that for which s 49 provides.

77    The key authorities upon which the ABC relies do not concern the PP Act, with Hammond predating it, and Criminal Justice Commission v Parliamentary Criminal Justice Commission [2001] QCA 218; [2002] 2 Qd R 8 (CJC) concerning the Queensland Constitution and related legislation. However, each have something useful to say on the topic more generally as a point of principle, or by sufficiently close analogy, despite the appellant’s submissions to the contrary.

78    In Hammond at 200, Murphy J rejected the Commonwealth’s proposition that there was no privilege under the Royal Commissions Act 1902 (Cth), including privilege against self-incrimination, except where expressly provided, noting that it was accepted by the Commonwealth that this argument necessarily entailed a contention that all other privileges were overridden by that Act, including the privileges of Parliament. His Honour said:

The privileges of Parliament are jealously preserved and rightly so. Parliament will not be held to have diminished any of its privileges unless it has done so by unmistakable language. It has not done so in the Royal Commissions Act 1902, nor has it abridged the privilege against self-incrimination.

79    As to CJC, s 40A of the Constitution Act 1867 (Qld) provided that unless and until otherwise defined, the Queensland Legislative Assembly had all the powers, privileges and immunities of the House of Commons, which is comparable to s 49 of the Constitution. Section 3 of the Parliamentary Papers Act 1992 (Qld), which expressly applied to the Queensland Parliament for the purposes of Art 9, gave the meaning of “proceedings in Parliament”. One of the arguments advanced in CJC was that s 118ZA(1) of the Criminal Justice Act 1989 (Qld) manifested an intention to “deprive the proceedings and report of the Parliamentary Criminal Justice Commissioner of the privileges and immunities conferred by the Bill of Rights and the Parliamentary Papers Act 1992, and to confine the Commissioner’s protection to that provided by s 118ZA(1)”. This was said to view the protection provided by s 118ZA as an exhaustive code of the privileges and immunities of the Commissioner and thereby an implied repeal of both parts of the Bill of Rights and the Parliamentary Papers Act. In rejecting that argument in CJC, McPherson JA, with whom Williams JA agreed, referred at [26] to “the general interpretive rule that express words (or, as would probably now be said, unmistakable and unambiguous language) are required to abrogate a parliamentary privilege”. A similar statement of principle was made by Rowland J, one of the judges of appeal in Aboriginal Legal Service of Western Australia v Western Australia (1993) 9 WAR 297 (ALS) at 304, a case involving the statutory application of Art 9 in Western Australia.

80    The appellant does not advance any compelling reason why the statements of principle in Hammond, CJC and ALS are not generally applicable in considering what is required to effect limitations or changes to a fundamental right at the centre of parliamentary democracy, which, although originally sourced in statute in the Bill of Rights, have been given the force of s 49 of the Constitution, with the deliberate requirement that they be “such as are declared by the Parliament”. There is no sound reason advanced by the appellant for such important rights being given less protection from alteration by legislation that does not clearly articulate an intention to do so, at least by meeting the stipulated level of being declared, than the great common law rights of legal professional privilege, the right to silence, and privilege against self-incrimination, invoking the cases cited by the primary judge at PJ [109] of Coco v The Queen [1994] HCA 15; 179 CLR 427 at 437 and 446 and X7 v Australian Crime Commission [2013] HCA 29; 248 CLR 92 at [86]-[87]. As the ABC points out, although sourced in statute, parliamentary privilege is so long standing and of such significance, it has the same fundamental character as the abovementioned common law rights, so that it should not be easily changed without the legislature in some way turning its mind to what it is doing.

81    The ABC also argues that the steps required to dislodge or vary the application of parliamentary privilege provided for by the Parliament are no less than the steps required to implement it in the first place, in place of the operation of the second part of s 49 of the Constitution. As the implementation required a declaration, in substance, or alternatively sufficiently clear terms, exclusion or variation should, on that argument, require no less. The ABC’s case is that the clear intent of s 16 of the PP Act was to confirm and extend the operation of Art 9, rather than diluting it to allow for easier displacement, as the appellant suggests. As such, the ABC argues that the Court should not lightly conclude that such a significant change may be achieved by such indirect and global language as “despite any provision of a law of the Commonwealth” without differentiation, falling well short of the ordinary concept of a declaration which does at a minimum require such differentiation.

82    Subject to the refinements below, the thrust of the ABC’s submissions should be accepted instead of those advanced by the appellant, which are summarised as follows.

83    The appellant submits, by reference to constitutional history, that a declaration is nothing more than an ordinary enactment, such that the phrase “declared and enacted” in s 16(1) is but the expression of a single concept by two connected words (a “hendiadys” as it is put). This submission addresses only s 16 itself, and does not properly grapple with the express terms of s 49 of the Constitution, to which s 16 of the PP Act must be subordinate. That is so even if the legislative power being exercised is that in s 51(xxxvi) in relation to the matter that s 49 makes provision, rather than s 49 directly. There is no licence given by s 49 to disregard the express and clearly deliberate requirement that parliamentary privilege, “shall be such as … declared by the Parliament”, implicitly not just at one point in time, but from time to time, and until so “declared”, shall be that of the House of Commons, accepting that the required declaration must be by statute. As the ABC correctly submits, while a declaration by Parliament must be made by an Act, an Act does not necessarily in substance contain the requisite declaration.

84    The appellant’s argument requires acceptance of the proposition that the use of the word “declared” and the absence of any lesser or different description, such as “make rules and orders” in s 50 or “make laws” in s 51, is to be given no real or effective weight or significance. The appellant argues that the Constitutional Convention discussions in the 1890s about the use of the word “declared”, in substitution for the word “defined”, did not suggest that a declaration means something more than a bare enactment. That argument cannot be accepted. For the reasons below, s 49’s ongoing role in expressly providing that the privileges of its houses, members and committees “shall be such as are declared by the Parliament” must be given real work to do.

85    The appellant relies upon the conclusion reached by the Judicial Committee of the Privy Council in an appeal from the Supreme Court for the Colony of Victoria in Dill v Murphy (1864) 1 Moo PC (NS) 487; 15 ER 784 at 794 [514]. The Privy Council was considering whether the Victorian Colonial Parliament, by “declaring” that that the privileges, immunities, and powers of the Victorian Legislative Council and Legislative Assembly and their members should be those of the House of Commons, had failed effectively to exercise the power in s 35 of the Colonial Act of 1854, set out in the schedule to 18 & 19 Vict. c. 55 (Imperial Act of Parliament) 1854 (Imp), to “define” those privileges, immunities, and powers. Lord Cranworth in pronouncing their Lordships’ judgment that the power had been duly exercised, said that the word “define” was equivalent to the word “declare”. There are two answers in response to that argument which are advanced by the ABC and should be accepted. First, the equivalence drawn between “define” and “declare” in a quite different context should be approached with caution; and secondly, the Constitutional Convention debates, which resulted in the word “define” being deliberately replaced by “declare” must be taken to be a deliberate choice, made for a purpose.

86    Further and in any event, Dill v Murphy, rather than assisting the appellant, tends to do the opposite. In context, the effect of the decision was that the Victorian Colonial Parliament by making a declaration by explicit reference to the privileges, immunities and powers of the House of Commons was pointing directly to the subject matter and source of what was declared and was found thereby to be have been defined as required. It is authority for the proposition that identifying what was being done by a clear reference to the source of the rights being enacted was sufficient, such that more detail than that was not required. Thus, it was not necessary, as contended by the appellants in Dill v Murphy, to specify the content of those privileges, immunities and powers, because the direct reference to their source by declaration was a sufficient form of definition. The finding was that the reference to that subject matter and source, akin to the second part of s 49 of the Constitution, was enough. It is clear enough that this was not just enough, but was necessary as well, being a minimum in substance. Yet the appellant’s argument entails an acceptance that, contrary to what happened in Dill v Murphy, not even that much was needed.

87    The appellant also submits that, properly understood, s 16(1) does not support any special rule of construction or presumption requiring clear words to override it, and is therefore subject to ordinary principles of statutory construction, once again relying upon s 16 itself. The appellant contends that what matters is what in substance has been achieved by s 24, not the form in which it has been done, citing Fairfax v Commissioner of Taxation (1965) 114 CLR 1 per Kitto J at 7 in support of the principle of focusing on substance rather than form when it comes to assessing constitutional validity. It may be accepted that the concept of a declaration is one of substance rather than mere form. However, the appellant’s argument again focuses on the terms of s 16(1) to the exclusion of the express constitutional mandate in s 49, and begs the question as to what constitutes the substance of a declaration, which is the relevant issue of interpretation.

88    A further problem with the appellant’s argument is that it does not sit well with the discussion about s 49 in Fitzpatrick and Browne, a habeas corpus case, even though that is a case that the appellant also relies upon. The High Court, comprising all seven justices, was dealing with an argument that the words in s 49 of the Constitution should be given less operation than their terms seemed to require, albeit as to the second part of s 49 dealing with the powers, privileges and immunities of the House of Commons, which were in turn sourced in Art 9 of the Bill of Rights. This argument was advanced in order to persuade the High Court that two warrants issued against two individuals for breach of privilege issued by the Speaker of the House of Representatives were invalid and therefore did not authorise detention for contempt by reason of breach of the privilege. The suggestion that s 49 should not be given effect according to its terms was rejected. The ultimate conclusion reached was that it was for the Parliament, manifested in this case via the Speaker, to judge what was contempt for breach of privilege and the ground of the commitment to custody. The Speaker’s warrants were issued pursuant to resolutions of the House of Representatives and on their face were consistent with a breach for an acknowledged privilege being conclusive, despite being expressed in general terms. That position under English law was found to be reflected in and authorised by s 49, and contrary arguments were rejected: see pp 164-165ff.

89    Dixon CJ gave an ex tempore judgment for the Court in Fitzpatrick and Browne, dismissing the application for writs of habeas corpus. The Chief Justice said that the answer to the proposition advanced as to invalidity lay in the plain words of s 49 itself, which were incapable of a restricted meaning unless imperatively demanded as something to be placed artificially upon them by the more general considerations supplied by the Constitution itself: see p 165. His Honour pointed out that there was no legislation which purported to be a declaration of the powers, privileges and immunities of either House, stating comprehensively what they desired them to be: p 167. Two lesser statutes did not meet that description: pp 167-168. It followed that the latter part of s 49 continued to operate so as to transfer to the House the full powers, privileges and immunities of the House of Commons: pp 163, 164.

90    The effect of Dixon CJ’s judgment at p 167 also makes it clear that it is only the latter part of s 49 that is transitional, providing that until such time as the Parliament declares the powers, privileges and immunities of the two Houses, they shall be those of the House of Commons. Once that declaration has taken place, there is no reason why the earlier part of s 49 ceases to be operative according to its express terms and giving full effect to the language used. Any changes to parliamentary privilege that are made by amending the PP Act will mostly likely meet the requirements in s 49 for the exercise of the power, given the long title and the reference to “declared” in s 16(1). The appellant suggested that the ABC was trying to change the meaning of s 49 without compliance with s 128 of the Constitution. However, by attempting to put to one side the deliberate and considered use of the word “declared” in the phrase “shall be such as are declared by the Parliament”, it is the appellant, and not the ABC, who is departing from the language of s 49, by effectively suggesting that the word is devoid of any particular meaning and has no work to do.

91    Fitzpatrick and Browne supports the interpretation that the first part of s 49 continues to operate according to its terms after there has been a declaration by the enactment of the PP Act, while not necessarily having anything to say about collateral matters such as publication and broadcasting which may be supported by other heads of power, either with, or independently of, s 49. That does not mean that the word “declaration” or the word “declares” is required to effect a change to the scope or operation of parliamentary privilege itself, provided that is what is in substance taking place, but it does mean that there must be something expressly directed to the operation of parliamentary privilege before any change can be effected to the operation of s 16(3). Without that taking place, there is not in substance the necessary declaration.

92    As noted above, in the case of an amendment to the PP Act, including to s 16, nothing more express would be needed, because the language of amendment would necessarily have that degree of clarity to amount in substance to a declaration, noting that this is reflected in the long title, read with s 5, as well as s 16(1). But s 49 itself stands in the way of any change to the scope of parliamentary privilege by other legislation which does not contain express words in some unmistakable way so as to meet the express constitutional mandate. In other words, contrary to the appellant’s submissions, a declaration in substance, supported by s 49 of the Constitution, is required to change the operation of s 16(3) of the PP Act via another statute.

Issue (3):    Is there a conflict between s 16(3) of the PP Act and s 24 of the PID Act?

93    The ordinary purpose and effect of a statutory provision such as s 24 of the PID Act, which states that ss 10, 14, 15 or 16 (protected provisions) have effect “despite” any other provision of Commonwealth law unless that other provision is later enacted or it expressly applies, is to ensure that the protected provisions are not affected by any other provisions enacted by the Commonwealth. The Explanatory Memorandum to the Public Interest Disclosure Bill 2013 (Cth), said that cl 24 (which later became s 24 of the PID Act) “ensures that the protection and remedies afforded to disclosers by the Bill are not overridden by provisions of other laws, unless there is clear legislative intention to do so”, a description that was maintained in the revised explanatory memorandum, and not changed in the supplementary explanatory memorandum. This clearly indicates, as the plain words would in any event suggest, that s 24 was enacted for more abundant caution, to avoid inadvertent exclusion or limitation of s 10 or ss 14 to 16 by other Commonwealth legislation.

94    The ABC contends that there is no conflict between s 16(3) of the PP Act, such that its operation is unaffected by s 24 of the PID Act. The appellant contends that s 24 is not confined in its operation to the named provisions, ss 10, 14, 15 or 16, but extends to the provisions standing behind those provisions, including in particular the meaning given to reprisals in s 13. The appellant also relies upon the preservation of legal professional privilege in s 80 of the PID Act in support of an argument that the operation of s 16(3) of the PP Act, by not being preserved in that way, is excluded by s 24 of the PID Act, contrary to the conclusion reached by the primary judge. However, the argument based on s 80 is so secondary that it is either unnecessary, or cannot prevail if the rest of the appellant’s argument does not succeed. The essential difference between the competing arguments turns on the question of whether it is necessary to identify a conflict between 16(3) of the PP Act and ss 10, 14, 15 or 16 of the PID Act before s 24 applies. For the reasons that follow, the better view is that the existence of such a conflict is necessary before s 24 has any work to do.

95    In Jabbcorp (NSW) Pty Ltd v Strathfield Golf Club [2021] NSWCA 154, the New South Wales Court of Appeal was concerned with the construction of a commercial contract and in particular a clause that commenced with the words “Notwithstanding any other clause”. Leeming JA, with whom Basten JA and Emmett AJA agreed, approached the task of contract construction by reference to authority dealing with the use of such phrases in legislation, and observed that they reflect the fact that they “only indicate the clause which prevails in the event of a conflict, and say nothing as to whether there is a conflict in the first place”: [36]. One such case cited by his Honour, and relied upon by the ABC, was Price v J F Thompson (Qld) Pty Ltd (1990) 1 Qd R 278.

96    In Price, s 11 of the Limitation of Actions Act 1974–1981 (Qld) relevantly provided that notwithstanding any other Act, an action for negligence and breach of duty could not be brought after the expiry of three years from the date upon which the cause of action arose. That three year anniversary expired on a Saturday. A negligence and breach of duty proceeding was commenced the following Monday. Section 38(3) of the Acts Interpretation Act 1954–1977 (Qld) provided that for the reckoning of the time by which something had to be done under a Queensland statute, if a day fell on a weekends or public holiday, the act could be done on the next working day. The judge at first instance held that the words in the limitation “notwithstanding any other Act” precluded the time calculation provision applying to permit the action being commenced on the Monday. By majority, this was overturned, with it being found that there was no conflict between the limitation provision and the time calculation provision. Justice de Jersey (as his Honour then was) observed at 287 that the phrase “notwithstanding any other Act” was included to make it abundantly clear that s 11 prevailed over other statutory limitations on the right to sue, but did not prevail over a general provision for the calculation of time which was not addressing such a limitation. In other words, there was no conflict calling for the application of the phrase “notwithstanding any other Act” in s 11, which only operated as to limitation periods, to exclude s 38(3) as to the calculation of time for the calculation of when s 11 took effect. That was so despite the fact that the continued application of s 38(3) had a most material impact on the effective reach of the express terms of the limitation restriction, by allowing additional time past a weekend.

97    The approach in Price is an illustration of the principle that where there is an apparent inconsistency between provisions within an Act, “the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions”: Project Blue Sky v Australian Broadcasting Authority (1998) HCA 28; 194 CLR 335 at 382 [70] per McHugh, Gummow, Kirby and Hayne JJ. See further Herzfeld P and Prince T, Interpretation (2nd ed, Thomson Reuters, 2020) at 119, [5.190] – [5.200]. Applying that approach to the present circumstances, means that before s 24 of the PID Act can be found to have any work to do in respect of another Commonwealth provision, the scope of ss 10, 14, 15 or 16 needs to be ascertained. That in turn enables any conflict with any other provision to be identified, so as to require resolution.

98    The express and only purpose of s 24 of the PID Act is to ensure that the immunity provision (s 10), and the provisions for remedies by way of compensation (s 14), by way of injunction, apology or other orders (s 15) and by way of reinstatement (s 16), are not prevented from having effect by any other provision of a law of the Commonwealth, unless enacted after the commencement of s 24, or expressed to have effect despite Pt 2 of the PID Act or s 24 itself. Section 24 was, on its face, and as confirmed by the Explanatory Memorandum, enacted to make it abundantly clear that the immunity in s 10 and the remedies in ss 14 to 16 took effect despite any other limitations on such rights that might be found in some other statutory provision. Read in that way, s 24 does not override any other such provision, but rather prevents it from applying to the PID Act so as to impede the effect of s 10 and ss 14 to 16. That is, on that interpretation, s 24 does not disable such provisions from their operation in other spheres, nor their operation upon other provisions of the PID Act, but rather ensures they do not impinge upon those specific protected provisions at the point at which they would otherwise take effect.

99    Put another way, on that interpretation, s 24 is a protective provision to ensure that those immunity and remedy provisions of the PID Act were not set to nought by an extant legislative side wind, but no more. As such, s 24 should take effect according to its express terms, and not be given any wider operation than is necessary to achieve that objective. Read in that way, s 24 can only have a bearing on the operation of s 16(3) of the PP Act if the latter limits the effect of ss 10, 14, 15 or 16 of the PID Act at the point at which these provisions would ordinarily apply. That is, there needs to be a conflict between the operation of ss 10, 14, 15 or 16 of the PID Act (rather than just s 24 of the PID Act) and the operation of s 16(3) of the PP Act, before s 24 has any work to do on the scope or application of parliamentary privilege.

100    Section 16(3) of the PP Act does not impose any liability so as to be in conflict with s 10 of the PID Act, nor stand in the way of any of the remedies in ss 14 to 16 once a proscribed reprisal is admitted or proven to have taken place. Rather, s 16(3) is overtly directed and confined to the conduct of proceedings in a court or tribunal. It proscribes as unlawful in such a proceeding the tender or receipt of evidence, the asking of questions, or the making of statements, submissions or comments concerning proceedings in the Parliament, as defined, by way of, or for the purposes set out in, s 16(3)(a) to (c). It is important to note therefore that the limitation in s 16(3) is not confined to the adducing of evidence, nor to a particular purpose, as it extends to such things as allegations and to conduct having the proscribed character. This is of some importance because of the attempt by the appellant to include in the ASOC references to a benign and non-proscribed purpose behind the appellant’s December 2018 letter, which was rejected by the primary judge.

101    On this interpretation, s 16(3) of the PP Act has no greater effect than, for example, a provision of the Evidence Act 1995 (Cth) that precludes the admission of, or limits the use of, particular evidence in a court to which particular evidentiary provisions apply. Section 16(3) does not encroach upon the immunity or remedy provisions in ss 10 or 14 to 16 of the PID Act, but at most, and necessarily relatively infrequently given that questions of parliamentary privilege are not likely to arise very often, it may encroach only upon the anterior stage of proving that such immunity is required, or proving that there is an entitlement to such a remedy. No other provisions of the PID Act are protected by s 24 from the effects of any other Commonwealth provisions. Specifically, s 24 is not expressed to say anything at all about the provisions of the PID Act dealing with:

(a)    what a public interest disclosure is: s 26;

(b)    what disclosable conduct is: s 29;

(c)    what constitutes taking a reprisal: s 13,

or the means of proving that any of those things exist or have taken place.

102    It follows from this interpretation that there is no conflict between s 16(3) of the PP Act and any of the immunities or remedies in ss 10, 14, 15 or 16 of the PID Act, and therefore no conflict between 16(3) of the PP Act and s 24 of the PID Act in need of resolution. As such, s 24 of the PID Act has no work to do in relation to s 16(3) of the PP Act, and the primary judge was correct to conclude that s 24 of the PID Act does not purport to provide that any provision of that Act other than ss 10 and 14 to 16 have effect despite any other law of the Commonwealth: PJ [105].

Issue (4):    Did the primary judge err in striking out the impugned paragraphs?

103    The appellant’s argument that there was an error in striking out the impugned paragraphs depends upon s 24 of the PID Act displacing s 16(3) of the PP Act, which has failed by the conclusions reached in relation to all three issues above, leaving no separate basis for error on the part of the primary judge in light of the findings made against the other grounds advanced by the appellant. It follows that no error in striking out the impugned paragraphs has been established.

The appellant’s second argument: should the appellant be given an opportunity to re-plead?

Issue (5):    Did the primary judge err in giving summary judgment in respect of causes of action to which the impugned paragraphs relate?

104    The appellant’s case on this issue proceeds upon the basis that the application of s 16(3) of the PP Act has been resolved in favour of the ABC. It is very much a case in the alternative. The appellant seeks instead an opportunity to re-plead the case in a way that does not infringe parliamentary privilege, which may also mean that some of the struck out paragraphs can be re-pleaded as well. A necessary component of the appellant’s case on this issue is that the primary judge erred in finding that the appellant could not get around s 16(3) because of the reliance on the December 2018 letter concerning the ABC’s response to the question from the Senate committee, as a PID.

105    The appellant contends that the primary judge should not have proceeded to summary judgment on the causes of action arising from the struck out paragraphs of the ASOC, because the test of the cause of action reflected in the struck out paragraphs being incurable by re-pleading could not be met, citing Spencer v Commonwealth [2010] HCA 28; 241 CLR 118 at [22]-[23], and further citing [24] on the corresponding need for caution in a circumstance such as this. An aspect of this argument relies upon the appellant’s submissions that the primary judge treated the two distinct powers to strike out a pleading and impose a summary judgment in a compendious way, simply referring to the causes of action arising from the large number of struck out paragraphs.

106    The appellant does not accept that there is necessarily any problem in him re-pleading in a way that continues to rely upon the December 2018 letter as a PID, despite the fact that this letter was directed only to the ABC’s response to the question on notice from the Senate committee. The appellant contends that the letter can be relied upon in a way that does not entail any prohibited purpose. The thrust of the argument, which again turns on the concept of a PID Belief as defined in the ASOC, is that the underlying cause of action does not depend upon the December 2018 letter in fact and in law being a PID, but rather upon what the relevant ABC personnel believed or suspected about that letter, even if that suspicion or belief was erroneous.

107    The cornerstone of this argument is that the primary judge erred in finding that pleading the PID belief in relation to the December 2018 letter would have no reasonable prospect of success because that would depend on adducing evidence of that letter, which concerns parliamentary proceedings (or its contents), contrary to s 16(3) of the PP Act. The appellant contends that this conclusion is premature because the first step would be filing a further amended statement of claim (FASOC), to which the ABC might, as a model litigant, admit the PID belief, or might respond to interrogatories which could be used to support an inference based on the contents of the December 2018 letter, without its express admission, neither of which would breach parliamentary privilege. It is clear that the appellant seeks to continue to rely upon the December 2018 letter as a PID, and to seek to avoid a breach of the PP Act by not directly relying upon the contents of that letter.

108    By way of example, the appellant sought to rely upon further evidence by way of handwritten notes annexed to a notice to admit facts, about which limited admissions were made by the ABC, and which record an ABC employee’s understanding that the appellant had made an allegation that Mr Anderson had lied, noting that the ABC also asserted that making any further admissions might be contrary to s 16(3) of the PP Act. A different part of these notes is also said to support identification and proof of a disadvantage imposed upon the appellant by reason of a belief that the appellant had made a PID about Mr Anderson’s statements to Parliament as supplemented by the ABC’s response. The substance of the point being made is that the question is not whether the December 2018 letter would be relevant evidence, but rather whether the requisite belief would be incapable of proof without that letter which, it is argued, is premature to endeavour to ascertain and therefore not capable of meeting the high threshold for summary dismissal. The ABC objected to the appellant being permitted to rely upon the ABC file notes in this appeal upon the basis that they could not have made a difference to the outcome before the primary judge.

109    It is important to note that the appellant’s argument as to re-pleading does not entail seeking leave to re-plead without reference to the December 2018 letter, but rather upon ways in which it is contended that the contents of that letter do not need to be relied upon directly. This includes by adducing evidence of the contents of the letter by relying upon other evidence to achieve the same outcome, such as tendering the letter and having it admitted into evidence. Each of the four items of evidence, being an affidavit, a letter, an email and a report that were placed before the primary judge sought to achieve that objective. It is not necessary to consider the contents of that material because it is the very concept and approach sought to be taken of sidestepping s 16(3) of the PP Act in this way that the primary judge found was impermissible. That reasoning equally applies to the file notes sought be relied on as further evidence on the appeal.

110    Upon much the same reasoning, the appellant contends that it was premature for the primary judge to conclude that any reliance on the December 2018 letter would be precluded at trial, because that letter did not itself constitute proceedings in parliament, despite being about the ABC’s response to the question on notice. Whether adducing that letter in evidence would contravene s 16(3) of the PP Act would depend upon the purpose for which it was adduced, with there being no prohibition on inviting inferences or conclusions from evidence concerning proceedings in Parliament, provided that did not entail conclusions being drawn from material that was part of such proceeding.

111    The appellant accepted that rather than simply being given leave to re-plead, orders might instead be given to serve a proposed FASOC.

112    The ABC’s response is first that the appellant’s argument depends upon untenable reasoning. The ABC characterises the appellant as arguing, by the oral submissions made by counsel for the appellant:

(a)    that s 13(1)(b) giving rise to a PID Belief on the part of the alleged repriser is “a subjective state of mind, not necessarily objectively reasonable or having any other objective quality”; and

(b)    that the PID Belief relied upon can be based upon the knowledge of certain ABC employees as to the allegations that had been made, without requiring a resolution of the allegations to be made.

113    The ABC contends that this argument relies upon reading s 13(1)(b) without reference to the relevant definition of a public interest disclosure in s 26(1) of the PID Act. The disclosure in question here is an “internal disclosure” identified in the table to that section, at Item 1, Column 1. A further requirement for such a disclosure is in Column 3, namely that the information in question “tends to show, or the discloser believes on reasonable grounds that the information tends to show, one or more instances of disclosable conduct”. It may be observed that “tends to show”, or a belief to that effect on “reasonable grounds”, both import a measure of objective assessment, not the purely subjective state of mind asserted by the appellant.

114    Thus, the ABC argues, the alleged reprisers must be shown to have believed or suspected that the information in the December 2018 letter showed, or tended to show, disclosable conduct as defined in s 29, to which may be added that any such belief must be on reasonable grounds. In this case, on the way that the appellant seeks to put the case, including by the nature of the re-pleading asserted to be available, that means proving that the alleged reprisers believed or suspected, on reasonable grounds, that the information in the December 2018 letter showed or tended to show serious misconduct, maladministration, a breach of Commonwealth law, or reasonable grounds for disciplinary action, or any other limb of disclosable conduct.

115    Secondly, the ABC submits that the above interpretation relevant to the PID Belief relied upon by the appellant would unavoidably entail a breach of s 16(3)(c) of the PP Act as effectively found by the primary judge, but also, if needed, s 16(3)(b), as advanced by the ABC’s notice of contention as an additional basis for the ultimate conclusion reached by his Honour. That is because the prohibition in the chapeau to s 16(3) is sufficiently broad to include an allegation made in the ASOC, or in any re-pleading by way of a FASOC, that relies upon the contents of the December 2018 letter due to it being all about (and indeed only about), the ABC’s response. Once reliance upon the allegation in the December 2018 letter breaches s 16(3), the ABC submits that it is no answer to say that the same allegations could be proven by other evidence. If the allegation breaches s 16(3), then it is properly struck out, a point not contested by the appellant at this stage and in relation to this alternative argument. However, the ABC goes further in defending the next step taken by the primary judge of also ordering summary judgment on the causes of action arising from the same paragraphs of the ASOC.

116    The next step in the ABC’s argument is that s 16(3) operates according to its terms when evidence, questions, statements or comments are made concerning proceedings in Parliament as defined broadly in s 16(2), albeit confined to the proscriptions of being by way of or for the purposes set out in paragraphs (a), (b) or (c) of s 16(3). But in this case, the ABC contends that threshold is easily met because the allegations in the December 2018 letter clearly concern proceedings in Parliament because they expressly rely upon, and will evidently continue to rely upon, the December 2018 letter, which quotes from, links to, and comments adversely about, the ABC’s response. That letter incorporates the whole of the ABC’s response and is all about that response. The object of s 16(3)(c) is achieved by preventing proceedings in Parliament being used against the ABC, and would equally achieve the object of s 16(3)(b).

117    The final step in the ABC’s argument is to characterise the primary judge’s summary dismissal order, even if there is perhaps some ambiguity as to the relevant cause of action under the PID Act, as being confined to the cause of action that claimed reprisal action based on the PID Belief that had been pleaded in the ASOC at [121] and [122], being the reason given by the primary judge at PJ [66] for summary dismissal, relying also upon his Honour’s reasoning at PJ [90]. The ABC contends that to the extent that the alleged ABC reprisal action is restricted to a PID Belief referable to knowledge of the December 2018 letter, those allegations were also properly the subject of summary dismissal. Although not overtly stated by the primary judge in the summary dismissal order, the ABC defends that order as being, based on his Honour’s reasons, directed to any PID Belief based on the December 2018 letter. The ABC accepts that if the Court concludes that the summary dismissal order went further and dismissed a cause of action for reprisal action based upon any kind of PID belief, such that the order as framed by the primary judge precludes the appellant from pleading anything of that nature, then the order made went too far, implicitly conceding that such a finding may necessitate recasting the order made by his Honour to ensure that the summary judgment is confined to a cause of action relying upon a PID Belief based on the December 2018 letter. However, the ABC maintains that is not what that order does.

118    In response to the suggestion by the appellant that the cause of action sought to be advanced could have been proven by adducing evidence without breaching s 16(3) of the PP Act, the ABC submits that s 16(3) prohibits not just the adducing of evidence, but the making of allegations, and that it was the making of the allegations articulated in the ASOC that constituted the breach, which precludes taking the next step and considering what evidence could be adduced to prove such a proscribed allegation. The ABC also submits that the primary judge was correct to conclude that the cause of action reliant upon the December 2018 letter as pleaded could only be proven by adducing evidence in breach of s 16(3). That is because the allegation is that the relevant ABC staff members formed a belief that the information in the December 2018 letter was a PID, and it was difficult to see how that allegation could be proven without relying upon the contents of that letter. The ABC characterised the examples of other evidence, including oral and affidavit evidence, that the appellant could adduce was really evidence in support of a different allegation that had not yet been pleaded. If a different sort of PID belief is sought to be relied upon, that would not be precluded by the summary dismissal order that was made.

119    Deciding between the competing arguments comes down to an assessment of what s 16(3) does and does not proscribe in the particular circumstances of this case, having regard to the scope of the PID Act relied upon by the appellant. That necessarily includes the meaning of:

(a)    “public interest disclosure” defined in s 26(1), read with the table to that section in relation to internal disclosures, which is what is relied upon in this case at Item 1, Columns 1 and 3;

(b)    “disclosable conduct” defined in s 29; and

(c)    “takes reprisal action” in s 13(1), with a particular focus on the concept of the suspicion or belief of the alleged repriser in s 13(1)(b).

120    Acceptance of the appellant’s arguments relies upon an interpretation of a number of the provisions of both the PID Act and the PP Act that does not survive close scrutiny, with the result that the ABC’s argument must prevail except as to the form of the summary dismissal order.

121    As to the PID Act, the appellant’s argument depends upon reading “public interest disclosure” in s 13(1)(b) without due regard to the directly applicable definition in s 26(1) and the relevant parts of the table to that provision. That argument is deployed to argue that the appellant is entitled to rely upon pleading the December 2018 letter as the PID, and entitled to plead that this letter is the source of the PID Belief by reason of the allegations made in it, which would require a hearing on the facts to be examined, while suggesting that the contents of that letter are dispensable by the device of secondary proof or admissions as to the belief held about it. The primary judge correctly found that this approach is impermissible, because the contents of the December 2018 letter are indispensable in assessing whether it meets the applicable definition in s 26(1) as it applies to s 13(1)(b). The appellant’s argument to the contrary has a surreal quality to it in its assertion that the very document that is at the heart of the appellant’s case can be pleaded, and form part of the central basis for this aspect of the appellant’s case, by reason of itself being the PID and being the source of the PID Belief, yet not form part of the necessary matrix of evidence required to be assessed.

122    It follows that the interlocutory application to adduce further evidence by way of the ABC file notes must be dismissed, because, insofar as that additional secondary evidence still related to a PID Belief held with regards to the December 2018 letter, it was not in a relevantly different category to the evidence that was before the primary judge, being the affidavit, letter, email and report. To the extent that it might be evidence sought to be relied upon to prove a different PID Belief that does not in substance rely upon the December 2018 letter, then it is not relevant to this appeal. Any re-pleading that might be possible upon such a different basis that is permitted by the primary judge would not necessarily by precluded by the summary judgment order in its final form.

123    As to the PP Act, the appellant’s arguments also depend upon reading down the plain words in s 16(3) and their broad reach to cover evidence, questions, statements or comments “concerning proceedings in Parliament” as widely defined in s 16(2), which are by way of or for the purposes of the particular aspects set out in s 16(3)(a), (b) and (c). Only s 16(3)(c) was relied upon by the primary judge, such that s 16(3)(a) and (b) only need to be considered, via the ABC’s notice of contention, if s 16(3)(c) was not sufficient. The appellant was not able to point to any compelling reason why the reference to “concerning proceedings in Parliament” should be read down to something less, other than characterising it as, in effect, unduly constraining the operation of the PID Act, an undoubtedly important regime governing whistle-blowers in the Australian Public Service. That is an insufficient reason to read down the phrase “concerning proceedings in Parliament” in s 16(3), and accordingly this aspect of the appellant’s argument must fail.

124    The substance of the primary judge’s reasoning is that the interpretation and evidentiary case that the appellant sought to deploy to resist summary judgment and permit re-pleading based upon the December 2018 letter as both a PID and as the source of a belief for the purposes of s 13(1)(b) of the PID Act, was an artificial construct directed to overcoming barriers to the case sought to be brought. In those circumstances, summary judgment for an impermissible cause of action relying upon what would be an unavoidable breach of s 16(3) of the PP Act was appropriate.

125    That said, the form of the orders for summary dismissal are insufficiently clear, given that the ABC was driven to rely upon his Honour’s reasons and the particular language in parts of the struck out pleadings in order to understand the metes and bounds of the causes of action that were summarily dismissed. Given that summary dismissal necessarily precludes re-pleading of the same cause of action, greater clarity is needed. It follows that the summary judgment order needs to be set aside and remade to reflect, with clarity, what precisely has been summarily dismissed and therefore brought to a permanent end.

CONCLUSION

126    Order 2 of the orders made on 17 August 2021 must be set aside. In order for the Court to formulate a replacement order, so as to finalise this appeal proceeding, the parties are directed to confer and, within 14 days or such further time as is allowed, submit agreed or competing draft orders to give effect to the conclusion that there should be summary judgment in respect of the claim advanced in the ASOC that impermissibly relied upon the December 2018 letter as a PID, and impermissibly relied on the contents of that letter as a PID belief for the purposes of s 13(1)(b) of the PID Act. The order will be made by the Court in chambers, without any further oral hearing.

127    The appeal must otherwise be dismissed with no order as to costs.

Associate:

Dated:    29 June 2023