Federal Court of Australia

BDR21 v Australian Broadcasting Corporation (No 3) [2025] FCA 1535

ORDERS

THE COURT ORDERS THAT:

1.    The first applicant is released from the Hearne v Street obligation in relation to the use of the documents identified in Schedule 1 to these orders for the purpose of attempting in good faith to make a public interest disclosure under the Public Interest Disclosure Act 2013 (Cth).

2.    Paragraphs 3A, 3 and 4(e) to (k) of the amended interlocutory application dated 24 June 2025 are otherwise to be dismissed (interlocutory application).

3.    There be no order as to costs with respect to the determination of the declaration and the orders sought by the applicants in the interlocutory application in relation to the Hearne v Street obligation.

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

Schedule 1

No: NSD290/2021

Federal Court of Australia

District Registry: New South Wales Registry

Division: General

1.    Tranche 01 Documents:

ABC.0001.0001.0682, ABC.0001.0001.0683, ABC.0001.0001.0686 ABC.0001.0001.1666, ABC.0001.0001.1671, ABC.0001.0001.3949 ABC.1009.0001.0001, ABC.1009.0001.0067, ABC.1009.0001.0075 ABC.1009.0001.0083, ABC.1010.0001.2364, ABC.1010.0001.2370 ABC.1010.0001.2376, ABC.1012.0001.0002, ABC.1012.0001.0003 ABC.1016.0001.2426 , ABC.1017.0001.2147, ABC.1017.0001.2148 ABC.1017.0001.2155, ABC.1017.0001.2164, ABC.1017.0001.2165 ABC.1017.0001.2191, ABC.1017.0001.2192, ABC.1017.0001.2296 ABC.1017.0001.2312, ABC.1017.0001.2317, ABC.1017.0001.4034 ABC.2000.0001.1401, ABC.2000.0001.1591, ABC.2000.0001.3785 ABC.2000.0003.7332, ABC.2000.0003.7333, ABC.2000.0003.8660 ABC.2000.0003.8662, ABC.2000.0004.0725, ABC.2000.0004.5846 ABC.2000.0006.8519, ABC.2000.0006.8555

2.    Tranche 02 Documents:

ABC.1016.0001.0990, ABC.1016.0001.0995, ABC.1016.0001.0997, ABC.1016.0001.1001, ABC.1016.0001.1372, ABC.1016.0001.1432, ABC.1016.0001.2632, ABC.1017.0001.1493, ABC.1017.0001.1604, ABC.1017.0001.2286, ABC.1017.0001.2291, ABC.1017.0001.2365, ABC.1018.0001.7126, ABC.1020.0001.0001, ABC.1020.0001.0002, ABC.1020.0001.0004, ABC.1020.0001.0007, ABC.1020.0001.0008, ABC.1020.0001.0010, ABC.2000.0001.4308, ABC.2000.0006.5608, ABC.2000.0008.6048, ABC.2100.0002.2479, ABC.2100.0002.2522, ABC.2100.0002.2615, ABC.2100.0003.6054, ABC.2100.0003.6057, ABC.2100.0003.6064, ABC.2100.0003.6210, ABC.2100.0003.6214, ABC.2100.0003.6216, ABC.2100.0003.6233, ABC.2100.0003.6501, ABC.2100.0003.6549, ABC.2100.0003.6578, ABC.2100.0004.1375, ABC.2100.0010.3796, ABC.2100.0011.0641, ABC.2100.0011.1665, ABC.2100.0011.6924, ABC.2100.0011.6926, ABC.2100.0011.7669,

ABC.2100.0014.0395, ABC.2100.0014.4083, ABC.2100.0014.417

3.    Affidavit of Corey Jankie affirmed on 2 March 2025

4.    Affidavit of Sarah Muller affirmed on 1 May 2025

REASONS FOR JUDGMENT

HALLEY J:

A.     Introduction

1    By an amended interlocutory application dated 24 June 2025, the applicants sought a declaration in this proceeding that they are not prevented from relying on documents discovered in this proceeding in making a public interest disclosure by reason of the Hearne v Street obligation (see Hearne v Street (2008) 235 CLR 125; [2008] HCA 36) (commonly referred to as the Harman obligation or the implied undertaking). In the alternative, the applicants sought orders that they be released generally, or with respect to specific documents and categories of documents, from the Hearne v Street obligation.

2    The relief sought by the applicants raises for consideration the intersection between the Hearne v Street obligation and the making of public interest disclosures pursuant to the Public Interest Disclosure Act 2013 (Cth) (PID Act).

3    The applicants and the respondent exchanged written submissions and made oral submissions at the hearing of the interlocutory application on 17 October 2025. In addition, the Human Rights Law Centre (HRLC) sought and obtained leave to make written submissions and appear at the hearing of the interlocutory application, as an amicus curiae.

4    The applicants rely on two affidavits of the first applicant affirmed on 2 June 2025 and 15 October 2025, the respondent relies on two affidavits from its solicitor, Marianne Peterswald, sworn on 16 July 2025 and 15 October 2025, and the HRLC relies on an affidavit of Kieran Pender, an associate legal director of the HRLC, affirmed on 21 July 2025.

5    By the conclusion of the hearing of the interlocutory application, the scope of the controversy between the parties had considerably been reduced, not least because of the helpful intervention and assistance provided by the HRLC. All parties unequivocally accepted that the Hearne v Street obligation did not prevent the first applicant from making a public interest disclosure under the PID Act. Further, the applicants only pressed for a release of the first applicant from the Hearne v Street obligation with respect to the specific documents identified in paras 4(a) to (d) of the interlocutory application and did not press for a general release from the Hearne v Street obligation.

6    For the reasons that follow, the first applicant is to be granted a release from the Hearne v Street obligation with respect to the specific discovery documents and affidavits, identified in paras 4(a) to (d) of the interlocutory application, to permit their use for the purpose of attempting in good faith to make a public interest disclosure under the PID Act.

B.     Background

7    The respondent has provided extensive discovery to the applicants in this proceeding (Discovery Documents) pursuant to discovery orders made on 20 December 2024 (Discovery Orders). The Discovery Orders comprised (a) an order that the respondent discover documents produced by the respondent in a proceeding before the Supreme Court of New South Wales in response to subpoenas issued at the request of the applicants in that proceeding (Subpoena Discovery Order), and (b) an order that the respondent discover any document satisfying the criteria in r 20.14(1)(a)-(c) of the Federal Court Rules 2011 (Cth), other than documents discovered pursuant to the Subpoena Discovery Order (General Discovery Order).

8    The first applicant gives evidence that he believes that the information in the Discovery Documents, considered together with other information, tends to show one or more instances of “disclosable conduct” for the purposes of the PID Act. He states that in considering the Discovery Documents in the context of his review of the Commonwealth Ombudsman’s Agency Guide to the Public Interest Disclosure Act 2013 (version 3 published in July 2023), he holds the view that it is more likely than not that wrongdoing has occurred within the respondent in the course of his dealings with the respondent in relation to three identified matters.

9    The first applicant states that he wants to make a public interest disclosure under the PID Act that includes copies of the Discovery Documents and information drawn from one or more of the Discovery Documents. He states that he believes that the making of his proposed public interest disclosure will promote integrity and accountability at the respondent by initiating a formal process which, within the time frames imposed by the PID Act, could identify misconduct within the respondent and an appropriate remedial response.

10    The first applicant further gives evidence that he is concerned that he will experience adverse consequences if he provides information, including information in the Discovery Documents, about disclosable wrongdoing conduct within the respondent. He states that he therefore wants to obtain and proceed in a manner that enables him to have, the protections provided for public interest disclosures in Pt 2 of the PID Act in relation to his proposed use of the Discovery Documents, including the information contained in those documents.

C.     Intersection between Hearne v Street obligation and PID Act

C.1.     Overview

11    Before addressing the first applicant’s application for a release from the Hearne v Street obligation, as now confined, it is necessary to identify the extent and nature of the intersection between the Hearne v Street obligation and the PID Act. Although the parties agree that the Hearne v Street obligation does not prevent the making of a public interest disclosure under the PID Act, the first applicant remains concerned about the precise scope of the immunity that the PID Act might provide for any use by him of documents or information in connection with his foreshadowed public interest disclosure.

C.2.     Hearne v Street obligation

12    In Hearne v Street, the plurality, being Hayne, Heydon and Crennan JJ, stated at [96]:

Where one party to litigation is compelled, either by reason of a rule of court, or by reason of a specific order of the court, or otherwise, to disclose documents or information, the party obtaining the disclosure cannot, without the leave of the court, use it for any purpose other than that for which it was given unless it is received into evidence.

(Emphasis added and footnotes omitted.)

13    The Hearne v Street obligation prohibits the use of documents for purposes that are unrelated or unconnected with a proceeding or litigation: Northbuild Construction Pty Ltd v Discovery Beach Project Pty Ltd (No 4) [2011] 1 Qd R 145; [2009] QCA 345 at [38] (Chesterman JA); Deputy Commissioner of Taxation v Karas [2012] VSC 143 at [43] (Forrest J); Gavan v FSS Trustee Corporation [2019] NSWSC 667 at [89]-[90] (Ward CJ in Eq).

14    The authorities make plain that a breach of the Hearne v Street obligation constitutes a contempt of court: Credit Suisse Virtuoso SICAV-SIF v Insurance Australia Limited (No 2) [2024] FCA 1308 at [7] (Moshinksy J).

15    It is well settled, however, that the Hearne v Street obligation must yield to inconsistent statutory obligations and the curial process: Esso Australia Resources Ltd v Plowman (1995) 183 CLR 10 at 33 (Mason CJ, with whom Dawson and McHugh JJ agreed).

C.3.     Disclosures under the PID Act

16    Section 10(1) of the PID Act relevantly provides:

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.

17    Section 8 of the PID Act provides that the term “public interest disclosure” is defined in Subdiv A of Div 2 of Pt 2. Section 26(1), contained within that subdivision, provides:

A disclosure of information is a public interest disclosure if:

(a)    the disclosure is 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;

(c)    all the further requirements set out in column 2 of that item are met.

18    For an “internal disclosure”, there are two “further requirements” that must be satisfied, which are set out in the table in s 26(1) of the PID Act. The first requirement is that 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”. The belief of the discloser must be based “on reasonable grounds”. The existence of “reasonable grounds” is necessarily an objective inquiry.

19    Section 8 of the PID Act provides that the term “disclosable conduct” is defined in Subdiv B of Div 2 of Pt 2. Section 29(1), contained within that subdivision, provides that “disclosable conduct” is conduct engaged in by an agency, a public official in connection with their position as a public official, or a contracted service provider for a Commonwealth contract in connection with that contract, of a particular kind listed in the table, which includes but is not limited to conduct that contravenes a law of the Commonwealth, a State or a Territory, conduct that constitutes maladministration, conduct resulting in a wastage of certain resources and conduct resulting in a danger to the environment.

20    The only exceptions to the immunity granted by s 10(1) of the PID Act are for (a) knowingly making a false or misleading statement (s 11), (b) contravening a designated publication restriction (s 11A), and (c) a disclosure made with respect to the discloser’s own conduct (s 12). Importantly for present purposes, the Hearne v Street obligation does not fall within the definition of “designated publication restrictions” in s 8 of the PID Act.

21    As Lovell JA (with whom David JA relevantly agreed) observed in Boyle v Commonwealth Director of Public Prosecutions (2024) 387 FLR 389; [2024] SASCA 73 at [35]:

… it is apparent that a valid PID may only be made in narrow circumstances”, which was a matter that “assumes significance in the construction of s 10(1)(a) as the immunity is conditioned on the person having made a valid PID.

22    His Honour then expressly held (at [85]) that the immunity “applies to the act of disclosure not the act of gathering information to be disclosed.”

23    In similar terms, Doyle JA stated in Boyle at [218]:

It is apparent, and the appellant accepts, that a person is not entitled to the immunity described in s 10(1)(a) unless they have made a disclosure in the sense contemplated by ss 26(1) and 28. A person is not entitled to claim the immunity unless they have communicated information to an appropriate recipient.

24    Doyle JA then explained how the immunity available under s 10(1) of the PID Act should be construed (at [234]-[235]):

…It is also important to bear in mind that one of the objects of the PID Act is to promote the integrity and accountability of the Commonwealth public sector (s 6(a)). As the respondent submits, pursuit of this objective would include not only encouraging the disclosure of wrongdoing but also encouraging adherence to the standards set by criminal, civil and administrative law. As the effect of the immunity in s 10(1)(a) is to permit conduct in breach of these standards, construing the immunity too broadly would tend to undermine pursuit of the objective in s 6(a). In summary, pursuit of the various objectives in s 6 may be seen as involving a range of mechanisms, designed to strike an appropriate balance between the protection of public officials making public interest disclosures, and the protection of the community through encouraging not only the disclosure of wrongdoing but also the adherence to the standards set by criminal, civil and administrative laws.

Bearing these considerations in mind, it should not be assumed that the legislature intended to encourage all conduct or activity by a person who ends up making a public interest disclosure. To the contrary, it can be assumed that the legislature would have been conscious of the need to ensure a balance between encouraging appropriate disclosure and not unduly interfering with the ordinary scope of criminal and civil liability. The words chosen in s 10(1)(a) should be understood and construed as reflecting a balance, and should not be construed simplistically with an assumption that they should be given the broadest meaning they can bear.

C.4.     The intersection between the s 10(1) of the PID Act immunity and the Hearne v Street obligation

25    Both textually and in context, s 10(1)(a) of the PID Act provides an immunity from liability for making a valid public interest disclosure – not a release from one’s obligations not to disclose information, including the Hearne v Street obligation. Textually, the immunity from any civil, criminal or administrative liability provided by s 10(1)(a) of the PID Act for the “making” of a public interest disclosure does not have the effect of extinguishing the Hearne v Street obligation or relieving a person from the obligation. Rather, the person remains subject to the Hearne v Street obligation but is immune from liability for any breach of that obligation with respect to the disclosure of documents or information in a valid public interest disclosure under the PID Act.

26    The context of s 10(1)(a) of the PID Act relevantly includes a consideration of the mischief that the PID Act was intended to address. The first explanatory memorandum for the Public Interest Disclosure Bill 2013 (Cth) records at page 2 that a purpose of the Bill was to largely implement the Government’s 2010 Response to the House of Representatives Standing Committee on Legal and Constitutional Affairs report Whistleblower Protection: a comprehensive scheme for the Commonwealth public sector. The introduction to the report records that:

[p]ublic interest disclosure legislation has an important role in protecting the interests of those who speak out about what they consider to be wrongdoing in the workplace, encouraging responsive action by public agencies, strengthening public integrity and accountability systems and supporting the operation of government.

Facilitating public interest disclosures is part of a broader public integrity framework that is considered to be an essential feature of modern accountable and transparent democracies. The broader integrity framework can be said to include enabling public access to information held by government through freedom of information law and minimising secrecy in government activity.

27    The immunity provided by s 10(1)(a) of the PID Act only extends, however, to the information, including documents, that have become the subject of a valid public interest disclosure. As the Court of Appeal of the South Australian Supreme Court concluded in Boyle, the immunity only applies to the act of disclosing the information, not the act of gathering the information. Relatedly, a person is not entitled to the immunity described in s 10(1)(a) of the PID Act until they have made a valid public interest disclosure under the PID Act. This presents a whistleblower, who has received documents or information pursuant to a compulsory process, with a dilemma that is likely to be insurmountable in all but the most straight forward of cases, as the Hearne v Street obligation prohibits a person, without the leave of the court, to “use” documents for any purpose other than that for which they were produced, unless they are received into evidence in the proceeding.

28    In many cases, as in the present case, a person may be provided with a large quantity of documents pursuant to a compulsory process of a Court. In order to determine which documents could be used for the purpose of making a public interest disclosure, a person would have to be satisfied that the documents contained information that tended to show, or the discloser believed, on reasonable grounds, showed, one or more instances of disclosable conduct. To the extent that documents were reviewed, but not later relied upon to make a valid public interest disclosure under the PID Act, there would be no immunity from criminal and civil liability for a breach of the Hearne v Street obligation, and the use of those documents for the purpose of “gathering information to be disclosed” would be a contempt of court.

29    In light of the above and considering that no valid public interest disclosure under the PID Act with respect to the Disclosed Documents has yet been made by the first applicant, s 10(1) of the PID Act, granting the protection from liability for making a valid public interest disclosure, has no present operation.

D.     Release from Hearne v Street obligation

D.1.     Legal Principles

30    It is well established that a Court can grant a release from the Hearne v Street obligation where a party can demonstrate special circumstances.

31    In Liberty Funding Pty Ltd v Phoenix Capital Ltd [2005] FCAFC 3; (2005) 218 ALR 283, the Full Court (Branson, Sundberg and Allsop JJ) relevantly stated at [31]:

…The notion of “special circumstances” does not require that some extraordinary factors must bear on the question before the discretion will be exercised. It is sufficient to say that, in all the circumstances, good reason must be shown why, contrary to the usual position, documents produced or information obtained in one piece of litigation should be used for the advantage of a party in another piece of litigation or for other non- litigious purposes. The discretion is a broad one and all the circumstances of the case must be examined…

32    In the same paragraph, the Full Court in Liberty Funding approved a list of considerations identified by Wilcox J in Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217 at 225, that it considered may, depending on the circumstances, be relevant to the exercise of the discretion to grant a release from the Hearne v Street obligation. The considerations identified by Wilcox J included the nature of the document, the attitude of the author of the document, the nature of the information in the document and, “perhaps most importantly of all”, the likely contribution of the document to achieving justice in the other proceeding.

33    It has been said that (a) the modification or release from the Hearne v Street obligation should be no greater than is “necessary or appropriate to meet the interests of the administration of justice or the public interest” and, generally, it will be necessary “to identify with precision the documents to be released and the purpose of that release”: Australian Securities and Investments Commission v Marshall Bell Hawkins Ltd [2003] FCA 833 at [13] (Merkel J), (b) the specification of document for which the release is sought is “fundamental”: Ambridge Investments Pty Ltd v Baker (No 3) [2010] VSC 545 at [52] (Vickery J), and (c) the specification of documents is necessary, so that the Court can assess the matters identified by Wilcox J in Springfield: Gavan v FSS Trustee Corporation [2019] NSWSC 667 at [125] (Ward CJ in Eq).

D.2.     Principal contentions of the parties and the HRLC

34    The applicants initially contended that the purpose of making a public interest disclosure is a circumstance where it is appropriate, in the interests of justice or the public interest, for a general release from the Hearne v Street obligation to be granted, rather than requiring the identification of specific documents. As explained above, however, the applicants now only press for a release from the obligation with respect to the specific documents and affidavits identified in paras 4(a) to (d) of the interlocutory application (Specified Documents). The Specified Documents comprise documents produced by the respondent on 21 March 2025 (identified in the interlocutory application as the Tranche 01 Documents) and on 1 May 2025 (identified in the interlocutory application as the Tranche 02 Documents) in response to the General Discovery Order and two affidavits verifying the production of those and other discovered documents, namely the affidavit of Corey Jankie affirmed on 2 March 2025, and the affidavit of Sarah Muller affirmed on 1 May 2025 (together, Verification Affidavits).

35    The respondent contends that before granting any release to the applicants for the purpose of making a disclosure under the PID Act, the Court must first be satisfied that the Specified Documents are capable of being used for that purpose. It contends that the applicants have not discharged the onus of establishing that the Specified Documents are documents which are capable of establishing or sustaining a public interest disclosure.

36    The HRLC contends that there is nothing in the PID Act that would preclude a whistleblower from seeking a release from the Hearne v Street obligation, even if it would not be necessary to seek a release prior to making a public interest disclosure. It submits that any release should necessarily be tailored to the circumstances and limited to those documents which are essential to the reason for the disclosure. It submits that the PID Act sets a narrow pathway for a valid public interest disclosure to be made, and this is sufficient to limit the circumstances in which the immunity in s 10(1) applies.

D.3.     Consideration

37    I do not accept, nor was it suggested by the applicants, that any use of the Specified Documents by the first applicant in connection with his foreshadowed public interest disclosure could be characterised as a use for a purpose for which the documents were discovered.

38    As explained at [27] above, s 10(1)(a) of the PID Act would only provide an immunity to the first applicant with respect to any use of the Specified Documents once a valid public interest disclosure had been made. In the absence of a release from the Hearne v Street obligation, the first applicant would be in contempt of court to the extent that he used the Specified Documents for the purposes of “gathering information”, in the sense of determining whether they could be the subject of a valid public interest disclosure but, ultimately, determined that they could not or should not be the subject of a public interest disclosure.

39    The policy objectives of the PID Act are expressly identified in s 6 of the PID Act. They include to (a) promote the integrity and accountability of the Commonwealth public sector, (b) encourage and facilitate the making of public interest disclosures by public officials, (c) ensure that public officials who make public interest disclosures are protected from adverse consequences relating to the disclosures, and (d) to ensure that disclosures by public officials are properly investigated and dealt with.

40    Given the explanations provided by the first applicant in his affidavit as to the reasons for the proposed public interest disclosure, I am satisfied that the first applicant’s foreshadowed use of the Specified Documents in connection with that disclosure both advances the policy objectives of the PID Act and is for a confined and discrete purpose. In the absence of some express disentitling factor, such as a lack of good faith, the intended use could readily be seen as providing considerable support for a conclusion that there were special circumstances justifying a release from the Hearne v Street obligation. The release extends to the Verification Affidavits (which fall within the Specified Documents, as defined at [34] above) because of the evidence that the first applicant gives of his intention to include in his public interest disclosure a maladministration complaint directed at the respondent’s claims for privilege over documents identified in the Verification Affidavits to which privilege allegedly does not or should not apply.

41    The likely contribution of the Specified Documents to the achievement of justice in the “other proceeding”, in this case, a public interest disclosure under the PID Act, is at least conceptually self-evident. To require the first applicant, however, to establish, by reference to Springfield type considerations, why he should be released from the Hearne v Street obligation in relation to each of the Specified Documents would be an expensive and time-consuming exercise. It would erect a significant barrier, both in financial and emotional terms, to any prospective whistleblower that seeks to rely on documents the subject of a Hearne v Street obligation to advance a prospective public interest disclosure.

42    A related difficulty is that to the extent that information contained within the Specified Documents, rather than particular Specified Documents themselves, was sought to be relied upon to demonstrate disclosable conduct, it may be necessary to source that information from multiple Specified Documents considered in combination. This would likely give rise to an even more complex and time-consuming exercise.

43    At the same time, granting a prospective whistleblower a release from the Hearne v Street obligation to use specific documents for the purpose of a proposed public interest disclosure under the PID Act is unlikely to offend the rationale for the existence of the obligation. The permitted use would only enable a very limited and confined “invasion of the privacy and confidentiality” of the authors of the documents. Any internal disclosure of the documents would be limited to a recipient who is an “authorised internal recipient”, as defined in s 34 of the PID Act, and the impact of the release on the authors of the documents would not be more harsh or oppressive than “is strictly required for the purpose of securing that justice is done”: Hearne v Street at [107].

44    Moreover, in this case, any prejudice is even less likely, given that the Specified Documents were documents of the respondent. The disclosure of the Specified Documents, or information included in the Specified Documents, to “authorised internal recipients” of the respondent is unlikely to lead to any material invasion of the “privacy and confidentiality of the affairs” of the respondent, not least because of the stringent obligations of confidentiality imposed by the PID Act, including the prohibition in s 20 on the use or disclosure of identifying information.

45    For the foregoing reasons, I am satisfied that the first applicant should be granted the release that he seeks from the Hearne v Street obligation with respect to the Specified Documents.

E.     Disposition

46    An order releasing the first applicant from the Hearne v Street obligation with respect to the Specified Documents to permit him to use the documents in connection with a public interest disclosure under the PID Act is to be made. Otherwise, the interlocutory application, to the extent that it sought declarations and orders with respect to the Hearne v Street obligation, is to be dismissed.

47    There is to be no order as to costs. The orders to be made reflect the mixed success achieved by the parties, and the HRLC did not seek any order for their costs.

Associate:

Dated:    5 December 2025