BDR21 v Australian Broadcasting Corporation (No 3)

The first applicant said he believed the discovered material, together with other information, tended to show one or more instances of disclosable conduct. He also said he was concerned about adverse consequences if he disclosed wrongdoing within the ABC and wanted to proceed in a way that would attract the protections available under the PID Act.

The applicants initially sought broad relief. They wanted a declaration that the Hearne v Street obligation did not prevent reliance on discovered documents for a public interest disclosure, or alternatively a general or specific release from that obligation. By the end of the hearing, the dispute had narrowed considerably. All parties accepted that the Hearne v Street obligation did not prevent the first applicant from making a public interest disclosure under the PID Act.

The practical question left for the Court was narrower: should the first applicant be released from the obligation in relation to specified documents and two verification affidavits so he could use them for the purpose of attempting in good faith to make that disclosure?

The Court examined s 10(1) of the PID Act and the South Australian Court of Appeal's reasoning in Boyle v Commonwealth Director of Public Prosecutions. The judgment drew a clear distinction between making a valid public interest disclosure and gathering information to decide what should be disclosed. On that reasoning, the immunity in s 10(1) applies to the act of making a valid disclosure, not to the earlier act of gathering or reviewing information.

That distinction mattered because the first applicant had not yet made a valid public interest disclosure. He wanted to examine and use discovered documents in order to attempt one. The Court said that, until a valid PID is actually made, s 10(1) has no present operation.

So if a person reviews discovered documents for the separate purpose of deciding whether they can or should be used in a PID, and those documents are not ultimately part of a valid disclosure, the statutory immunity may never attach to that preparatory use.

The Court therefore had to decide whether there were special circumstances justifying a release from the Hearne v Street obligation. The authorities cited by the Court say that a release can be granted where good reason is shown, but it should be no broader than necessary. Usually the documents and the purpose of the release should be identified with precision.

The respondent argued that the Court should first be satisfied that the specified documents were capable of being used for a public interest disclosure. The Human Rights Law Centre, appearing as amicus curiae, submitted that a release could be sought and that any release should be tailored and limited to documents essential to the reason for the disclosure. The Court had to balance those positions against the policy objectives of the PID Act and the rationale behind the Hearne v Street obligation.

The reasoning turned on the gap between the scope of the Hearne v Street obligation and the timing of PID Act immunity. The Court said s 10(1) does not extinguish the Hearne v Street obligation. Rather, a person remains subject to that obligation but may be immune from liability for breach when making a valid public interest disclosure. Because no valid PID had yet been made here, the immunity had no present operation.

That created a practical dilemma. In many cases, a person receives a large quantity of documents through compulsory process. To decide which documents tend to show disclosable conduct, the person may need to review many of them. But if some reviewed documents are not ultimately used in a valid PID, there may be no immunity for that preparatory use. The Court said that, in that situation, using the documents for the purpose of gathering information could amount to contempt unless leave is granted.

The Court found special circumstances justifying a release. It accepted that the proposed use advanced the policy objectives of the PID Act, including promoting integrity and accountability in the Commonwealth public sector, encouraging and facilitating disclosures, protecting public officials from adverse consequences and ensuring disclosures are properly investigated and dealt with. The intended use was also confined and discrete.

The Court was not persuaded that the first applicant had to prove, document by document, why each specified item should be released by reference to a detailed merits analysis. It considered that such an exercise would be expensive and time-consuming and would create a significant financial and emotional barrier for prospective whistleblowers.

The Court also considered that a tightly confined release for a proposed PID was unlikely to offend the rationale of the Hearne v Street obligation, especially where any internal disclosure would be to authorised internal recipients and the PID Act itself contains confidentiality protections.

The decision also shows that statutory protections can be narrower than people expect. Many people assume that if whistleblower law protects disclosures, it must also protect every step taken beforehand to collect and assess material. The Court rejected that assumption here. It drew a line between the act of making a valid public interest disclosure and the earlier act of gathering or reviewing discovered documents to decide what to disclose.

For business owners and managers, the safest reading is conservative. If documents came to you because of discovery, subpoena or another compulsory court process, do not repurpose them without checking the limits first. If someone inside the business says the material should be used for a complaint, disclosure or report outside the case, pause and get legal advice on whether court leave is needed and how narrowly any proposed use should be framed.

The Court also emphasised precision. The release granted here was tied to identified tranches of documents and two named verification affidavits. It was also tied to a specific purpose: attempting in good faith to make a public interest disclosure. That is a useful compliance lesson for businesses. If another use of litigation material is being considered, broad language and broad access are risky.

The safer approach is to define exactly which documents are involved, who needs access, what the proposed use is, and whether that use can be justified and confined.

Businesses should also note that the Court considered the confidentiality architecture of the PID Act relevant to the balance. The judgment referred to internal disclosure to authorised internal recipients and to confidentiality protections under the Act. That does not mean confidentiality concerns disappear. It means that a tightly controlled disclosure pathway may make a limited release more acceptable than a broad or public reuse of discovered material.

This case does not say that public interest disclosures cannot be made using discovered material. In fact, the Court accepted that the Hearne v Street obligation did not prevent the making of a PID and granted a limited release to facilitate an attempted disclosure. But it does say that businesses and individuals should not skip over the document-use question. The route matters, the timing matters and the scope of any permitted use matters.

If your business is dealing with a potential whistleblower issue during litigation, the safest approach is to separate the substantive concern from the document-handling question. Even if the concern is serious, the documents may still be subject to court-imposed restrictions that need to be addressed first.