Federal Court of Australia

BDR21 v Australian Broadcasting Corporation [2021] FCA 960

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to r 16.21 of the Federal Court Rules 2011 (Cth), paragraphs 45-124, 129-135.1, 144-145, 149-183, 194-198.1, 208-212.1, 223-227.1, 238-242, 246-246.1, 251, 255 (the words “A PID Belief as described in paragraph 121 above”), 259 (the words “A PID Belief as described in paragraph 121 above”), 278, 279.1, 311 (the words “and the … December 2018 PID”), 312-312.1 and 322-330 of the amended statement of claim filed by the applicant on 15 June 2021 (ASOC) be struck out.

2.    Pursuant to r 26.01 of the Federal Court Rules 2011 (Cth) and s 31A(2) of the Federal Court of Australia Act 1976 (Cth), summary judgment be given for the respondent with respect to the causes of action advanced in paragraphs 45-124, 129-135.1, 144-145, 149-183, 194-198.1, 208-212.1, 223-227.1, 238-242, 246-246.1, 251, 255 (the words “A PID Belief as described in paragraph 121 above”), 259 (the words “A PID Belief as described in paragraph 121 above”), 278, 279.1, 311 (the words “and the … December 2018 PID”), 312-312.1 and 322-330 of the ASOC.

3.    Subject to any consent position with respect to the payment of the costs of the proceeding:

a.    the respondent is to file and serve written submissions on costs limited to three pages and any supporting evidence by 4.30 pm on Friday, 27 August 2021;

b.    the applicant is to file and serve written submissions on costs limited to three pages and any supporting evidence by 4.30 pm on Friday, 3 September 2021;

c.    the respondent is to file and serve any submissions in reply on costs limited to one page and any supporting evidence by 4.30pm on Friday, 10 September 2021; and

d.    the issue of costs be determined on the papers unless either party seeks an oral hearing.

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

REASONS FOR JUDGMENT

HALLEY J:

Introduction

1    This is an application by the respondent to strike out and further, or in the alternative, seek summary dismissal of numerous paragraphs of the amended statement of claim filed by the applicant on 15 June 2021 (ASOC).

2    By an amended interlocutory application dated 25 June 2021 (Amended Interlocutory Application), the respondent seeks orders pursuant to r 16.21 of the Federal Court Rules 2011 (Cth) (FCR) that paragraphs 45-124, 129-135.1, 144-145, 149-183, 194-198.1, 208-212.1, 223-227.1, 238-242, 246-246.1, 250-259, 278, 279.1, 311 (the words “and the … December 2018 PID”), 312-312.2 and 322-330 of the ASOC (together and as amended in accordance with [4] below, the Impugned Paragraphs) be struck out on the grounds that they:

(a)    are likely to cause prejudice, embarrassment or delay in the proceeding;

(b)    fail to disclose a reasonable cause of action;

(c)    are otherwise an abuse of process; or

(d)    are not lawful by reason of s 16 of the Parliamentary Privileges Act 1987 (Cth) (PP Act) and would require the respondent to plead to allegations which may involve a further breach of s 16 of the PP Act.

3    Further, or in the alternative, the respondent seeks an order in the Amended Interlocutory Application that the Court give summary judgment for the respondent in relation to the Impugned Paragraphs pursuant to r 26.01 of the FCR or s 31A(2) of the Federal Court of Australia Act 1976 (Cth) (FCA Act) on the grounds that:

(a)    the applicant has no reasonable prospect of successfully prosecuting the proceeding or part of the proceeding;

(b)    no reasonable cause of action is disclosed; or

(c)    the proceeding is an abuse of the process of the Court.

4    The respondent confirmed at the outset of the hearing of the Amended Interlocutory Application that it no longer seeks orders relating to paragraphs 250 to 259 of the ASOC in full. Rather, it only seeks orders striking out or for summary judgment of paragraphs 251, 255 (the words “A PID Belief as described in paragraph 121 above”) and 259 (the words “A PID Belief as described in paragraph 121 above”). Further, the respondent only seeks such orders in respect of paragraphs 312 to 312.1 of the ASOC, rather than paragraphs 312 to 312.2.

5    The respondent also sought an order in the Amended Interlocutory Application for the provision of particulars, but in the course of the interlocutory hearing this order was not pressed.

6    The relief sought in the Amended Interlocutory Application raises novel issues concerning the relationship between the PP Act and the Public Interest Disclosure Act 2013 (Cth) (PID Act).

7    In effect, the applicant is seeking to advance a case in the Impugned Paragraphs that allegations made in a document that is subject to parliamentary privilege can be relied upon as disclosable conduct for the purposes of the whistleblower protections in the PID Act.

8    The principal contentions advanced by the respondent are that the causes of action advanced by the applicant in the Impugned Paragraphs depend upon evidence being adduced of material facts that would contravene the PP Act and would require the respondent itself to plead to allegations, adduce evidence and make submissions that would contravene the PP Act. For the reasons that follow, I accept the respondent’s contentions. It follows from my acceptance of those contentions that the Impugned Paragraphs fail to disclose any reasonable cause of action and the applicant has no reasonable prospect of success in relation to those paragraphs, because any cause of action based on material facts that cannot lawfully be adduced in evidence must fail.

9    The respondent relies on affidavits of Jonathon Hutton affirmed on 8 June and 14 July 2021 and an affidavit of Cameron O’Sullivan affirmed on 25 June 2021. Mr Hutton’s first affidavit refers to and annexes records of parliamentary proceedings. The Court is able to receive that evidence for the limited purpose of determining whether any of the allegations in the ASOC contravene s 16 of the PP Act: Amann Aviation Pty Limited v Commonwealth of Australia [1988] FCA 435; (1988) 19 FCR 223 at 232; Carrigan v Cash [2017] FCAFC 86 at [42].

10    The applicant relies on affidavits that they affirmed on 7 July 2021 (7 July Affidavit) and 15 July 2021 (15 July Affidavit).

11    Given the suppression orders that I made in these proceedings on 5 May 2021 and the allocation of a pseudonym to the applicant, these reasons for judgment are necessarily set forth in comparatively general terms, particularly with respect to the relevant factual background. I also note that I have not used any gender specific pronouns referrable to the applicant. Rather, when it has been necessary to use a pronoun to refer to the applicant I have used “they”, “their” or “them”, as is apparent from the preceding paragraph.

Background

12    The managing director of the respondent appeared before the Senate Standing Committee on Environment and Communications to give evidence at a budget estimates hearing (Senate Estimates Hearing). He provided an oral response to a question that he was asked in the course of the Senate Estimates Hearing that related to the applicant.

13    Shortly after the Senate Estimates Hearing, the respondent was issued with a document in the form of a question on notice, which asked for further details of when a particular discussion took place, with whom and what was said (Question on Notice).

14    The respondent provided a written response to the Question on Notice (Response).

15    In December 2018, the applicant sent a letter to the managing director of the respondent alleging that the Response was “in very material ways … both untrue and misleading” (December 2018 letter).

16    In December 2019, the applicant sent a written report to a whistleblower email address of the respondent (PID 17A Disclosure).

17    Later in December 2019, the applicant sent a further written report to the respondent’s whistleblower email address (PID 17B Disclosure).

18    In January 2020, the applicant made a verbal disclosure (PID 17C Disclosure) to a delegate of the respondent (Delegate).

19    In March 2021, the Delegate completed a report in response to the PID 17C Disclosure (PID 17C Report). The Delegate made a finding in the PID 17C Report that the applicant’s allegation that the Response was false or “untrue in substance” was partially substantiated. The Delegate found that the allegation by the applicant that one or more persons who contributed to the preparation and delivery of the Response were motivated by improper motives was not substantiated.

20    The applicant alleges in the ASOC that:

(a)    the statements made in the Response were false and misleading and constituted “Disclosable Conduct” within the meaning of s 29 of the PID Act;

(b)    the December 2018 letter constituted a “public interest disclosure” (PID) within the meaning of s 26 of the PID Act and the applicant seeks a declaration to that effect; and

(c)    the respondent took reprisal action against the applicant within the meaning of s 13 of the PID Act in response to the alleged public interest disclosure and the applicant seeks declarations to that effect.

21    The applicant seeks orders requiring the respondent to pay compensation, issue an apology and to engage the applicant on particular terms to present a program for the respondent. The applicant also seeks orders restraining the respondent from taking any reprisal action against them and requiring the respondent to take reasonable precautions to protect the applicant from reprisal action.

Legislative provisions

Strike out / summary dismissal

22    The respondent’s application to strike out the Impugned Paragraphs is made pursuant to rr 16.21(1)(d), (e) and (f) of the FCR, which provide as follows:

(1) A party may apply to the Court for an order that all or part of a pleading be struck out on the ground that the pleading:

…

(d) is likely to cause prejudice, embarrassment or delay in the proceeding; or

(e) fails to disclose a reasonable cause of action or defence or other case appropriate to the nature of the pleading; or

(f) is otherwise an abuse of the process of the Court.

23    The Court’s power to strike out pleadings that disclose no reasonable cause of action should be exercised with caution and only where clearly appropriate. The relevant principles are summarised by McKerracher J in Christou v Stantons International Pty Ltd [2010] FCA 1150 at [3]-[5].

24    A pleading is likely to cause prejudice, embarrassment or delay if it is plain that the pleading party cannot lawfully call any evidence at the hearing to substantiate the pleading: J C Techforce Pty Ltd v Pearce [1996] FCA 599; (1996) 138 ALR 522 at 531.

25    The question of what amounts to an abuse of process is broadly construed and context specific: Batistatos v Roads and Traffic Authority (NSW) (2006) 226 CLR 256; [2006] HCA 27 at [9]. It is an abuse of process to maintain an action which is doomed to fail: Walton v Gardiner [1993] HCA 77; (1993) 177 CLR 378 at 393.

26    The respondent relies further or in the alternative on the Court’s power to give summary judgment in relation to the Impugned Paragraphs, pursuant to r 26.01 of the FCR which relevantly provides:

26.01 Summary judgment

(1)     A party may apply to the Court for an order that judgment be given against another party because:

(a)     the applicant has no reasonable prospect of successfully prosecuting the proceeding or part of the proceeding; or

   …

(c)     no reasonable cause of action is disclosed; or

(d)     the proceeding is an abuse of the process of the Court; …

27    The respondent also relies on the Court’s power to dismiss proceedings under s 31A of the FCA Act, which is distinct and separate from the power to strike out a pleading. Section 31A relevantly provides:

31A Summary judgment

…

(2)     The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:

(a)     the first party is defending the proceeding or that part of the proceeding; and

(b)     the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.

(3)     For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:

(a)     hopeless; or

(b)     bound to fail;

for it to have no reasonable prospect of success.

28    It is not possible to adopt any paraphrase of the expression “no reasonable prospect of success” as a sufficient explanation of its operation or to define its content. It is necessary to give full weight to the expression as a whole, recognising that the power to dismiss an action summarily is not to be exercised lightly but also the evident legislative purpose, as revealed by the text of the provision, would be defeated if its application was read as being confined to cases of a kind that fell within earlier, different, procedural regimes governing the summary dismissal of proceedings: Spencer v The Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28 at [58]-[60] (Hayne, Crennan, Kiefel and Bell JJ).

29    The moving party bears the onus of establishing that the other party has no reasonable prospect of success but once a prima facie case to that effect has been established, the opposing party must respond by pointing to specific factual or evidentiary disputes that make a hearing necessary.

30    The use of the word “may” in s 31A of the FCA Act is to be read as an empowering word, not for the purpose of conferring a discretion on the Court. If the Court is satisfied that a cause of action has no reasonable prospect of success, it “must” be exercised. The exercise of the power turns not on the discretion of the Court, but rather upon proof that the cause of action has no reasonable prospect of success: Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd (2008) 167 FCR 372; [2008] FCAFC 60 at [128]-[129] (Gordon J).

Parliamentary Privileges Act

31    Section 16(1) of the PP Act provides that the provisions of article 9 of the Bill of Rights 1688 (UK) apply in relation to the Parliament of the Commonwealth of Australia. Article 9 states “[t]hat the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament”.

32    Section 16(3) of the PP Act provides:

(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 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.

33    The scope of what is encompassed by the term “proceedings in Parliament” is addressed in s 16(2) of the PP Act. It provides as follows:

(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 the purposes of or incidental to, the transacting of the business of the 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 the 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.

34    For present purposes, ss 16(2)(b) and (c) are relevant. Together, they capture the preparation and submission of a document to a “committee”. A committee is defined in s 3 of the PP Act in these terms:

committee means:

(a)    a committee of a House or 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).

35    The Explanatory Memorandum to the Parliamentary Privileges Bill 1987 (Cth) contains a further exposition of the proposed s 16(3) of the PP Act. It includes the following explanation at pages 13-14 with respect to item 3, sub-clause (c):

This would prevent, for example, a jury being invited to infer matters from speeches in debate by members of Parliament or form evidence of parliamentary witnesses in the course of a criminal or civil action against them or another person. Thus a member’s speech in Parliament cannot be used to support an inference that the member’s conduct outside Parliament was part of some illegal activity. This would not prevent the proving of a material fact by reference to a record of proceedings in Parliament which establishes that fact, e.g., the tendering of the Journals of the Senate to prove that a Senator was present in the Senate on a particular day.

These prohibitions express the limitations on the use of parliamentary proceedings which were held to flow from article 9 in the earlier court judgments. Basically, what they prevent is proceedings in Parliament being “used against” a person in the broad sense, that is, not only being made the subject of a criminal or civil action, such as where a member is sued for words spoken in debate, but also being used to support a civil or criminal action against a person.

[Original emphasis.]

36    I am satisfied that both the preparation and provision of the Response in answer to the Question on Notice were acts done for the purposes of and incidental to the transaction of the business of a committee.

Public Interest Disclosure Act

37    The objects of the PID Act are stated in s 6 as follows:

(a)    to promote the integrity and accountability of the Commonwealth public sector; and

(b)    to encourage and facilitate the making of public interest disclosures by public officials; and

(c)    to ensure that public officials who make public interest disclosures are supported and are protected from adverse consequences relating to the disclosures; and

(d)    to ensure that disclosures by public officials are properly investigated and dealt with.

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 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.

the Impugned paragraphs

46    I outline below the allegations in the ASOC that are relevant for present purposes.

47    The Impugned Paragraphs commence with a series of statements that the applicant alleges were made to them by employees of the respondent on various dates in 2018: ASOC at [45]-[76]. These statements are described in the ASOC as the Initial Discussion Statement, the May Meeting Statement, the Subsequent Meetings Statement, a Budget Statement and the Declined to Negotiate Statement (together the Impugned Statements). It is alleged that each of the Impugned Statements was made in documents “created for the purposes of the ABC itself and not for any prohibited purpose” (ASOC at [47.1]), was false or misleading and finally that, in making the Impugned Statements, the respondent engaged in misconduct (False Statements Misconduct).

48    The conduct giving rise to the False Statements Misconduct is alleged to have occurred in the period leading up to and immediately after the Senate Estimates Hearing. The only particulars provided in the ASOC of the Impugned Statements alleged to comprise the False Statements Misconduct are “[d]iscovery would be required to provide further particulars”.

49    For the purposes of a strike out application, however, the Court proceeds on the basis that the material facts alleged will be established. The applicant is in terms alleging in the ASOC that the impugned conduct extends to a period prior to the earliest date on which the prohibition in s 16 of the PP Act may be engaged, namely the date of the Senate Estimates Hearing.

50    It is alleged that the False Statements Misconduct was disclosable conduct within the meaning of s 29 of the PID Act (Disclosable Conduct): ASOC at [77].

51    The applicant then alleges that the respondent’s conduct in procuring or causing the False Statements Misconduct, failing to ensure that the False Statements Misconduct did not occur and failing to ensure that the Impugned Statements were corrected constituted “PID Unlawful Conduct”, “PID Maladministration” and “PID Misconduct”: ASOC at [77.1]-[78.5].

52    The applicant alleges that the December 2018 letter was a public interest disclosure within the meaning of s 26 of the PID Act (December 2018 PID): ASOC at [103]-[106].

53    In order to make good that claim, the applicant would need to establish that the information in the Response either “tended to show”, or that the applicant “believed on reasonable grounds that the information tended to show”, one or more instances of “disclosable conduct” (see Item 1 of the table to s 26(1) of the PID Act).

54    Next, the applicant alleges that after becoming aware of the allegations in the December 2018 letter, two named staff members of the respondent formed a PID Belief: ASOC at [118]-[122].

55    The applicant then contends that the various conduct of those two staff members constituted a “Disadvantage” to the applicant. It is alleged that on each occasion the two staff members committed conduct giving rise to a disadvantage, they held a PID Belief based on their knowledge of the December 2018 letter: ASOC at [129]-[135.1], [144]-[145], [149]-[179], [180]-[183], [194]-[198.1], [208]-[212.1], [223]-[227.1], [238]-[242], [246]-[246.1], [250]-[259] and [279.1].

56    Finally, relevant for present purposes are the applicant’s allegations concerning the verbal disclosure made by the applicant in January 2020 in the PID 17C Disclosure: ASOC at [308]-[331.1].

57    The applicant alleges that at all times after the date of their verbal disclosure in January 2020, the Delegate held a PID Belief by reason of their knowledge that the applicant had made the PID 17A Disclosure, the PID 17B Disclosure and the December 2018 PID.

58    The applicant alleges that each pleaded disadvantage was based in whole or in part on a PID Belief (claiming that discovery would be required to provide further particulars of these alleged PID Beliefs) and that each act or omission on behalf of the respondent that caused a disadvantage constituted reprisal action against the applicant under s 13(1) of the PID Act (ABC Reprisal Action): ASOC at [399]-[400].

Consideration

Respondent’s contentions

59    The essential complaint made by the respondent is that each of the Impugned Statements replicates a statement made in the Response. It submits that pleading that the Impugned Statements were made in documents created for the purposes of the ABC itself and not for a prohibited purpose was an artifice and does not avoid the operation of s 16(3) of the PP Act.

60    The respondent contended in its written submissions that the applicant is necessarily alleging that the statements made in the Response were false or misleading. The respondent also contends that because s 16(2) of the PP Act extends to the preparation of documents “for the purposes of or incidental to” the giving of evidence or the submission of a document to a committee, it would extend to any document generated for the purpose of preparing the Response and “so would capture internal documents containing the Impugned Statements”.

61    The respondent submits, in effect, that two consequences flow from its essential complaint.

62    First, the respondent contends that as a consequence of the False Statements Misconduct claim, the allegation that the December 2018 letter was a public interest disclosure and that staff members of the respondent held a PID Belief based on their knowledge of the December 2018 letter, the applicant would need to adduce evidence and make submissions for the following purposes:

(a)    “questioning the truth or motive” of the respondent’s conduct in preparing and submitting the Response, contrary to s 16(3)(a) of the PP Act;

(b)    “questioning the credibility or motive” of staff members of the respondent involved in preparing the Response, contrary to s 16(3)(b) of the PP Act; and

(c)    asking the Court to draw inferences about the conduct involved in the preparation of the Impugned Statements, contrary to s 16(3)(c) of the PP Act.

63    In the course of the hearing, counsel for the respondent focused on s 16(3)(c) and conceded that a determination of whether the PID Belief element in s 13 of the PID Act was established would not require a positive finding that the Response was false or misleading. Counsel submitted, however, that it would be necessary for the applicant to either establish a belief or suspicion that the information in the December 2018 letter tended to show disclosable conduct or that the applicant believed, on reasonable grounds, that it tended to show disclosable conduct. Counsel submitted that this necessarily engaged s 16(3)(c) because in using the Response as a basis for inferring that a PID Belief was held, or asking the Court to draw a conclusion that the PID Belief was held, the applicant invites the Court to draw an inference that the relevant staff members of the respondent held that belief.

64    The prohibition in s 16(3)(c) extends to the drawing of inferences or conclusions, wholly or in part, based on parliamentary proceedings.

65    The respondent submitted that although s 16(3)(c) of the PP Act had not been the subject of much judicial consideration, Pincus JA had observed in Coleman v Sellars (2000) 181 ALR 120; [2000] QCA 465 at [12]:

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.

[Original emphasis.]

66    Second, the respondent contends that to the extent that the ABC Reprisal Action is restricted to a PID Belief referrable to knowledge of the December 2018 letter, those allegations must also be struck out or summarily dismissed on the basis that they have no prospect of success. The respondent does not ask the Court to strike out or summarily dismiss paragraphs in the ASOC in which a PID Belief is alleged to arise independently of knowledge of the December 2018 letter.

Applicant’s contentions

67    The applicant sought to resist the respondent’s strike out and/or summary dismissal application on the following grounds.

68    First, the applicant advanced a three-step process to determine whether there had been a breach of s 16 of the PP Act, relying on the reasoning of the Full Court of the Supreme Court of South Australia in Rann v Olsen (2000) 76 SASR 450; [2000] SASC 83 (Rann). Doyle CJ at [73] of Rann stated that the application of s 16(3) of the PP Act involved:

[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.

69    The applicant submits that the respondent bears the onus of demonstrating that statements that do not refer to parliamentary proceedings are nevertheless statements concerning proceedings in Parliament and the respondent has failed to discharge that onus.

70    The applicant sought to apply the three-step process articulated in Rann to various specific statements alleged in the ASOC in order to demonstrate that none of the paragraphs in the ASOC offended s 16(3) and the approach taken by the respondent to group allegations in the ASOC into categories by analysing the combined effect of various paragraphs was erroneous.

71    The flaw with the approach taken by the applicant is that it ignores the relevant context in which the paragraphs have been included in the ASOC. The paragraphs plead material facts to establish causes of action for contraventions of the PID Act. Necessarily, if those causes of action are dependent on other paragraphs in the ASOC that offend s 16(3) of the PP Act, both those paragraphs and the paragraphs pleading material facts relevant only to those causes of action should be struck out or summarily dismissed.

72    The flaw in the applicant’s application of the three-step process to the Impugned Paragraphs is highlighted by the applicant’s submissions with respect to paragraph 103 of the ASOC. In that paragraph of the ASOC, the applicant pleads:

The Applicant sent a letter dated ... December 2018 with the subject line “ABC Evidence to Senate Estimates re [the program]” to the Acting Managing Director of the ABC (the ... Dec 2018 Letter).

73    The applicant submits that this is a statement “concerning the December 2018 letter”, not a statement “concerning Parliamentary proceedings”. The artificiality of this alleged distinction is readily apparent. The December 2018 letter was concerned with the Response and the Response was written in answer to the Question on Notice. It was manifestly concerned with parliamentary proceedings.

74    The allegations in the December 2018 letter were that the Response was both untrue and misleading. No reference was made in the letter to any conduct other than the provision of the Response to the Senate in answer to the Question on Notice. The exclusive focus on the provision of the Response was highlighted by the subject line “ABC Evidence to Senate Estimates re [the program]” and the following statements in the December 2018 letter:

I recently became aware of the ABC’s answers to [the Question on Notice] given to Senate Estimates in relation to [the program].

I’m genuinely sorry to have to say this, but in very material ways the ABC’s answers are both untrue and misleading.

…

The inaccurate and misleading nature of the ABC’s answer to [the Question on Notice] means the public record needs to be corrected. …

…

I believe that the ABC’s substantially untrue evidence to the Senate must be addressed as a matter of urgency.

…

[Original emphasis.]

75    Moreover, the suggestion by the applicant that any concern with paragraph 103 of the ASOC could be addressed by amending the paragraph to remove the reference to the subject line elevates form over substance in an impermissible way and fails to come to terms with the content of the December 2018 letter.

76    Second, the applicant submits that they can establish that the December 2018 letter was a public interest disclosure and that relevant staff members of the respondent held a PID Belief by “inferences and conclusions” drawn from material that does not form part of “proceedings in Parliament”. The applicant, by way of example, seeks to rely on the 7 July Affidavit, a May 2019 letter from a staff member of the respondent to the applicant (May 2019 Letter), a January 2019 email (January 2019 Email) and the PID 17C Report for this purpose. The applicant submits that such inferences and conclusions can be drawn without having regard to the content of the December 2018 letter.

77    I do not accept that submission.

78    In order to establish that the December 2018 letter was a public interest disclosure, s 26 of the PID Act requires the applicant to demonstrate that the information in the December 2018 letter tended to show, or that the applicant believed on reasonable grounds that the information in the letter tended to show, disclosable conduct.

79    The applicant advanced the following reasoning in relation to the PID 17C Report. First, the information in the PID 17C Report was the same as the information in the December 2018 letter. Second, the PID 17C Report could not be characterised as a “Parliamentary proceedings” document. Third, the PID 17C Report was created exclusively for a PID Act purpose. Fourth, given the finding in the report that the applicant’s complaint was “partially substantiated”, the Court could draw an inference that there were reasonable grounds for the applicant’s belief that the December 2018 letter tended to show disclosable conduct.

80    The PID 17C Report does not make any finding that the respondent’s conduct in providing the Response in answer to the Question on Notice contravened any Commonwealth law, provided grounds for disciplinary action or constituted maladministration.

81    In any event, as the applicant submitted, the Court is not bound by any findings in the PID 17C Report. The Court is required to reach its own conclusions as to whether the December 2018 letter tended to show disclosable conduct or the applicant believed on reasonable grounds that it tended to show disclosable conduct.

82    Nor do the other documents sought to be relied upon by the applicant to establish that the December 2018 letter was a public interest disclosure assist the applicant.

83    The May 2019 Letter, on one view, may demonstrate that the author was aware of the December 2018 letter. It does not establish, however, that the author or any other staff member of the respondent considered the letter tended to show disclosable conduct or that the applicant had reasonable grounds for believing that it tended to show disclosable conduct.

84    The January 2019 Email seeks to reproduce statements that were made in a telephone call that the applicant had with the managing director of the respondent. In response to a question from the applicant to the effect “no disciplinary action is being taken because of this?”, the applicant attributes the following statement to the managing director: “not as yet … will be handled in the usual performance appraisals; looks like serious misconduct but not that justifies termination of employment”.

85    The specific conduct that is said to have constituted “serious misconduct” is not identified in the applicant’s record of their telephone call in the January 2019 Email. The respondent submitted that the definitions of disclosable conduct in s 29 of the PID Act do not include “serious misconduct” expressed in such general terms and therefore the record of the telephone call could not amount to disclosable conduct. Whether a generic allegation of “serious misconduct” fell within the meaning of disclosable conduct in s 29 would turn on whether the “serious misconduct” was “of a kind” identified in the table to s 29. In order to answer that question it would be necessary to have regard to the surrounding factual matrix.

86    The reference in the January 2019 Email record of the telephone call to “serious misconduct” cannot sensibly be understood independently of its surrounding factual matrix. At a minimum, it would be necessary to understand what it is that “looks like serious misconduct” and what is the “this” at which the query about disciplinary action is directed. The surrounding factual matrix, as explained above, would necessarily include the allegations in the December 2018 letter.

87    In order to determine whether the December 2018 letter tended to show or the applicant believed on reasonable grounds that it tended to show disclosable conduct, the Court would necessarily have to look at the letter, rather than rely on what the applicant or relevant staff members of the respondent might say or imply about it.

88    In paragraph 76 of the 7 July Affidavit, the applicant stated that at the time that they sent the December 2018 letter, they believed that the information disclosed in it tended to show one or more instances of:

76.1    conduct that contravened one or more laws of the Commonwealth, including the Australian Broadcasting Corporation Act 1983 (Cth) (the ABC Act);

76.2    misconduct by one or more employees of the ABC that justified disciplinary action being taken against them;

76.3    conduct that was unreasonable;

76.4    conduct that was unjust in its effect, including on me;

76.5    conduct that was oppressive in its effect, including on me;

76.6    conduct that was unreasonable, especially in light of the ... July 2018 letter;

76.7    conduct that, if done by or at the direction of [an ABC staff member), was based to some extent on improper motives in conduct that involved an abuse of [the ABC staff member’s] position;

76.8    conduct that was negligent;

76.9    conduct that was inconsistent with the integrity of the ABC.

89    In order to determine, for the purposes of s 26 of the PID Act, whether there were reasonable grounds for the respondent’s asserted beliefs, it would be necessary to have regard to the surrounding factual matrix, including the content of the December 2018 letter.

90    In order to determine, for the purposes of s 13(1)(b) of the PID Act, whether a relevant staff member of the respondent had a PID Belief, absent an admission, it would also be necessary to have regard to the surrounding factual matrix. Necessarily, given the pleading advanced by the applicant that the staff members were aware of the December 2018 letter and they formed a PID Belief based on that letter, the factual matrix would include the contents of the December 2018 letter.

91    Further, even assuming that the applicant was successful in extracting admissions from relevant staff members of the respondent that they were aware of the December 2018 letter and that it raised questions of serious misconduct, this would necessarily be asking the Court to draw inferences or form conclusions based on the letter. This would be so even if the December 2018 letter was not otherwise tendered in evidence in contravention of s 16(3)(c) of the PP Act.

92    Third, in paragraph 75 of the 7 July Affidavit, the applicant stated that their purpose in disclosing the “Dec 2018 Letter Information” included:

75.1    assisting the ABC to maintain its integrity;

75.2    to prompt the ABC to take administrative action to correct its records;

75.3    to prompt the ABC to correct the public record;

75.4    to prompt the ABC to address what I believed to be serious mismanagement and unlawful conduct at senior ABC management level;

75.5    to notify the ABC of conduct I believed gave reasonable grounds for disciplinary action against one or more public officials;

75.6    to prompt the ABC to take internal administrative action, including conducting an inquiry, in relation to the ... Dec 2018 Letter Information;

75.7    to elicit from the ABC a formal written response detailing the findings of an inquiry into the ... Dec 2018 Letter Information and the remedial actions the ABC had or would take as a result;

75.8    to cause the ABC to take disciplinary action in relation to one or more public officials.

93    It can readily be accepted that these paragraphs of the 7 July Affidavit, if accepted, would be sufficient to conclude that the disclosures made in the December 2018 letter fell within the protection of the PID Act. That, however, is not the fundamental question. Rather, the issue is whether those disclosures enliven the prohibitions in s 16(3) of the PP Act.

94    The applicant’s submissions appear to proceed on the implicit but flawed premise that a disclosure that falls within the PID Act cannot at the same time also enliven the prohibitions in s 16(3) of the PP Act.

95    Fourth, the applicant seeks to rely upon the following statement of principle by the Full Court of the Federal Court of Australia in British American Tobacco Australia Ltd v Secretary, Department of Health and Ageing (2011) 195 FCR 123; [2011] FCAFC 107 (BAT) at [55]:

The Courts should not be astute to confine the scope of parliamentary privilege, but neither should they give effect to exorbitant claims which are apt to interfere with the rights of subjects without any corresponding benefit in terms of the freedom of debate in Parliament and the protection of Parliamentarians.

96    The applicant submits that this statement is apposite to the respondent’s contentions concerning the scope of parliamentary privilege in this case. They submit that those contentions can be characterised as “exorbitant” and “apt to interfere with the rights of subjects without any corresponding benefit in terms of the freedom of debate in Parliament”.

97    I do not accept that submission. It is important to bear in mind the specific context in which general statements of principle are advanced. The issue for the Court in BAT was whether s 16(3) of the PP Act extended to the republication by a stranger of a document tabled in the Senate, specifically officers of the executive government who published a Government response on its website. The issue in the present case is materially different.

98    The contention that s 16(3) applies to the December 2018 letter is not a contention that can reasonably be characterised as exorbitant. As explained above, the applicant alleged in the December 2018 letter that the Response contained statements that were “untrue and misleading”. The applicant makes the same allegation in these proceedings by their contentions that each of the Impugned Statements was false or misleading in a material particular.

99    The Response was provided in answer to the Question on Notice. The Question on Notice was issued by a committee of the Parliament. Pursuant to s 16(3) of the PP Act, evidence cannot be tendered or received for the purpose of drawing, or inviting the drawing, of any inferences or conclusions from anything forming part of the proceedings of Parliament. Pursuant to s 16(2) of the PP Act, proceedings in Parliament include the preparation and submission of a document for the purposes of or incidental to the presentation of a submission of a document to a committee of the Parliament.

100    A resolution of the allegations made in the Impugned Paragraphs will necessarily involve the tender or admission of evidence falling within s 16(3)(c) of the PP Act.

101    Fifth, the applicant submits that acceding to the respondent’s application to strike out or summarily dismiss the Impugned Paragraphs would “significantly interfere with the Applicant’s right to be protected from adverse consequences of making a public interest disclosure, a right granted by the Commonwealth Parliament”.

102    The applicant notes that the PID Act was enacted subsequently to the PP Act and points to the objects of the PID Act. This includes an object of seeking “to ensure that public officials who make public interest disclosures are supported and are protected from adverse consequences relating to the disclosure” (s 6(c) of the PID Act).

103    The applicant also seeks to rely on s 24 of the PID Act to illustrate that, in passing the PID Act, the Commonwealth Parliament considered and explicitly addressed the relationship between the PID Act and any other existing provision of Commonwealth law. The reliance is misplaced.

104    Section 24 of the PID Act provides that:

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.

105    Sections 10, 14, 15 and 16 of the PID Act are concerned with civil, criminal and administrative liability, compensation, injunctions, apologies, other orders for relief and reinstatement. Section 24 of the PID Act does not purport to provide that any other provision of the PID Act has effect notwithstanding any other law of the Commonwealth.

106    In any event, as submitted by the respondent, if s 24 of the PID Act had been intended to abrogate parliamentary privilege, “one would have expected that to have been stated with the utmost clarity”. As explained by Murphy J in Hammond v The Commonwealth of Australia [1982] HCA 42; (1982) 152 CLR 188 at 200:

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 unmistakeable language.

107    Finally, the applicant seeks to rely on s 80 of the PID Act, which expressly provides that “[t]his Act does not affect the law relating to legal professional privilege”. The applicant contends that “it can be assumed” that Parliament would have added a similar provision addressing parliamentary privilege “if it specifically wanted to preserve that privilege (or to limit the operation of the PID Act by reference to that privilege or the PP Act)”.

108    I do not accept that submission.

109    It is well settled law that fundamental common law rights and privileges, including parliamentary privilege, are only abrogated or modified by unambiguous and unmistakeable language: Coco v The Queen [1994] HCA 15; (1994) 179 CLR 427 at 437 (Mason CJ, Brennan, Gaudron and McHugh JJ) and 446 (Deane and Dawson JJ); X7 v Australian Crime Commission (2013) 248 CLR 92; [2013] HCA 29 at [86]-[87] (Hayne and Bell JJ); and Criminal Justice Commission v Parliamentary Criminal Justice Commissioner [2002] 2 Qd R 8; [2001] QCA 218 at [26] (McPherson JA).

110    Nor, contrary to the submissions advanced by the applicant, do I find that taken together, ss 24 and 80 of the PID Act indicate any intention of Parliament that the PID Act should have effect despite s 16 of the PP Act.

Disposition

111    I am satisfied for the reasons outlined above that the Impugned Paragraphs, taken together, do not disclose any reasonable cause of action and are not lawful by reason of s 16(3)(c) of the PP Act. The Impugned Paragraphs must therefore be struck out pursuant to r 16.21 of the FCR.

112    I am also satisfied, for the same reasons outlined above, that the applicant has no reasonable prospect of successfully prosecuting the causes of action advanced in the Impugned Paragraphs and that those paragraphs do not disclose a reasonable cause of action. Summary judgment for the respondent dismissing the causes of action advanced in the Impugned Paragraphs must therefore be ordered pursuant to s 31A(2) of the FCA Act or r 26.01 of the FCR.

113    I note that just prior to delivering these reasons for judgment, the applicant, with the consent of the respondent, drew my attention to the recent decision of Rares J in Barilaro v Shanks-Markovina (No 2) [2021] FCA 950, in particular at [82]-[83] and [95]-[96]. The applicant noted in their communication with the Court that the respondent “does not consider the decision states the principles differently to previous cases in any way that is material to the issues to be decided in these proceedings”. I agree with the respondent’s assessment of the potential relevance of the decision to the matters to be determined in this proceeding.

114    Given the provisions of s 18 of the PID Act, I will hear the parties further on the question of costs in light of these reasons.

Associate:    

Dated:    17 August 2021