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.