BDR21 v Australian Broadcasting Corporation (No 3)

This case sat inside a larger Federal Court dispute. The applicants had obtained a large body of ABC documents through discovery orders. The first applicant believed some of those documents, read together with other information, pointed to possible "disclosable conduct" under the Public Interest Disclosure Act 2013 (Cth).

He wanted to use identified discovered documents, and information drawn from them, to attempt in good faith to make a public interest disclosure. But documents obtained through compulsory court processes are not free for general reuse. They are usually subject to the Hearne v Street obligation, sometimes called the Harman obligation or implied undertaking. In simple terms, if a party is compelled to hand over documents in litigation, the receiving party cannot use them for another purpose without the court's leave unless the documents are received into evidence.

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 legal problem came from the interaction between two different rules. The first was the Hearne v Street obligation, which restricts the use of documents obtained through compulsory court processes. The second was the PID Act, which can protect a person who makes a valid public interest disclosure.

The Court accepted that the Hearne v Street obligation must yield to inconsistent statutory obligations and curial process. But that did not end the issue. The key question was whether the PID Act already protected the first applicant's proposed use of the discovered documents, or whether he still needed court leave because the statutory immunity had not yet attached.

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.

Justice Halley granted the first applicant a release from the Hearne v Street obligation in relation to the documents identified in Schedule 1 to the orders and two verification affidavits. But the release was tightly confined. It was only for the purpose of attempting in good faith to make a public interest disclosure under the PID Act.

The Court did not grant a general release. It also dismissed the other parts of the amended interlocutory application dealing with the Hearne v Street issue and made no order as to costs in relation to the determination of the declaration and related orders sought on that issue.

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.

For most businesses, this case is not about ordinary customer privacy compliance. It is about what happens when litigation documents, confidentiality rules and whistleblowing pathways collide. If your business is involved in litigation, discovered documents are not just another set of internal records that can be reused for any sensible or well-intentioned purpose.

That matters in several real-world situations. A founder may think discovered emails show misconduct by a counterparty. An employee may want to send discovered material to a regulator, ombudsman or internal integrity unit. A company may want to use discovered documents in another dispute, complaint, media strategy or governance review. This case shows that the answer is not simply whether the later purpose is important. It is also whether the court has authorised that use, or whether a statute clearly displaces the usual restriction.

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 judgment is useful because it focuses on conduct that often happens before anyone realises there is a legal problem. A person receives a large volume of discovered material. They suspect some of it may reveal wrongdoing. They start sorting, comparing, extracting and cross-referencing documents to work out whether a disclosure should be made. The Court's point is that this preparatory work may itself be a separate use of the documents.

If that use is outside the purpose for which the documents were produced in the litigation, the Hearne v Street obligation may be engaged. And if no valid PID has yet been made, the statutory immunity may not yet protect the person doing that work. That is the practical trap this case identifies.

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.

There are two practical operating points to take from this decision. First, discovered documents should be quarantined. Staff should understand that material obtained through litigation is not ordinary business information and cannot be freely reused. Second, escalation should happen early. The legal risk can arise at the preparatory stage, before any disclosure is actually made.

That means businesses should build a simple process. If litigation material is going to leave the dispute team, be reviewed for a complaint, or be used in a separate internal or external process, the issue should be referred for legal review before anyone acts. The review should ask what the source of the documents was, whether they have been received into evidence, whether a statutory pathway applies, and whether a court order is needed.

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.

The judgment was delivered by Halley J in the Federal Court of Australia on 5 December 2025. The hearing of the interlocutory application took place on 17 October 2025. The discovery orders referred to in the reasons were made on 20 December 2024.

The decision should be read as an interlocutory ruling on a specific procedural issue. It does not finally resolve the broader proceeding and should not be treated as a final judicial finding about any alleged wrongdoing by the respondent.