Consideration of the applicant's submissions
44 The applicant filed written submissions in support of the application. With respect, I had difficulty understanding how some aspects of those submissions were relevant to the order sought. For example, the applicant relied on provisions in Part VAA, Div 2 of the Federal Court Act, which concerns the court's powers to make suppression and non-publication orders. It may be that the principles of open justice referred to there, in particular in s 37AE, bear on the exercise of the discretion that arises here. But in the present case, no one is yet seeking suppression of anything, so there is no need for anyone to discharge the 'heavy onus' which, I accept, must be discharged before any order under Div 2 can be made: see eg Australian Competition and Consumer Commission v Oakmoore Pty Ltd (No 2) [2018] FCA 1170 at [22].
45 In any event, the crux of the applicant's written submissions was that for various reasons, orders should be made 'to permit disclosure without the threat of contravention of s 16(1) or (3) lingering in the air'. Since, as I have said, the applicant has given his consent for the purposes of s 16(1)(a), it is only the possibility of a contravention of s 16(3) that might linger.
46 The written submissions advanced five reasons why the order sought should be made. I will comment on each in turn.
47 First, the applicant submitted that this will be the first case considering the operation of the PID Act, so there is a public interest in favour of an open court and not a closed court or suppression. But, as I have said, at this point no one is seeking a closed court, or suppression of anything. I accept that the principle of open justice is fundamental to the operation of this court, but I am not persuaded at present that allowing the PID Act to operate according to its terms, in relation to information that is disclosed or proposed to be disclosed in the course of these proceedings, is inconsistent with that principle.
48 It may transpire that someone relies on s 16 in order to seek suppression of evidence or submissions that would otherwise be given or made in open court. But the appropriate time to consider the merits of any such application will be when the application is made. Then it can be addressed by reference to specific information which may be disclosed, and on the merits of the issues as they emerge in the facts and circumstances which then obtain. I am reluctant to make a blanket order permitting disclosure of information that would otherwise be a breach of the PID Act in the abstract, without regard to specific information in a specific context. At present, I am not persuaded that it is necessary to do so.
49 It is also important to distinguish between the application of the principle of open justice to hearings conducted in open court, and its application to documents filed in the course of proceedings. Rule 2.32 of the Federal Court Rules permits non-parties to have access to certain filed documents, such as pleadings, unless an order restricting access has been made. But for other documents, such as witness statements, affidavits and submissions, non-parties must apply for leave to inspect. That is because 'open justice is not a freestanding right and may be restricted where the interests of justice require otherwise': Deputy Commissioner of Taxation v Hawkins (Inspection Application by Matrix Group and Anor) [2016] FCA 164; (2016) 341 ALR 255 at [8] (Pagone J).
50 Factors relevant to the grant of leave under r 2.32(4) of the Federal Court Rules include whether, and if so to what extent, the document has been referred to in open court, and whether access to the document is necessary or desirable to facilitate an understanding of the proceedings and thus of the judicial process: Van Stokkum v The Finance Brokers Supervisory Board [2002] WASC 192 at [27] (McLure J, as she then was), applied in Hawkins at [8]. So, at least for documents that are not in the category where r 2.32 permits access by default, there is a mechanism enabling a case by case consideration of whether access, and thus disclosure, should be granted. Such issues and risks as arise under s 16 of the PID Act would be relevant considerations there. That is another reason why a broad consideration such as open justice does not justify a broad dispensation from s 16(3) in the present circumstances.
51 In any event, I doubt that such interest as might be provoked by any novelty of legal issues in this case adds much to the basic importance of open justice. That is so even where, as here, there is a public interest element to those issues.
52 Second, the applicant submitted that since the applicant has consented to disclosure of his identity under s 16(1)(a), s 16(3)(a) should not be permitted to 'stymie and suppress the conduct of the proceeding'. I also do not consider that this adds much. Although there are of course parallels and similarities between s 16(1) and s 16(3), on their face they are directed to different things. Section 16(1) is about the protection of the person making the disclosure. Section 16(3) is about the protection of persons in respect of which the disclosure is made. The long title to the Act, which I have quoted, reflects that difference of focus. It is difficult to see how the attitude of the person protected by s 16(1) should impinge on the protections to be afforded (or not afforded as the case may be) to persons who may wish to take the benefit of s 16(3).
53 Third, it was submitted that the subject matter of the alleged public interest disclosure is a matter of public interest and the subject of public debate, and so is a factor favouring the 'free flow of information'. There was evidence in Ms Murphy's affidavit of media reports on that subject matter, including a report quoting the applicant. I accept that there is a measure of public interest in the issue, although it is difficult to gauge how much interest, or how current it is. That may be a factor that is legitimate to take into account in considering whether to make an order which has effect under s 16(3)(e). Section 7A, which I have mentioned above, contemplates that disclosure to a journalist may be made in some circumstances. But there is no reason to think that in the absence of the order sought, public debate will be impaired in any way. And for similar reasons to those I gave in relation to the first reason the applicant has advanced, I doubt that this point adds much to the already strong predisposition the court will have in favour of open justice.
54 Fourth, the applicant submitted that the fact that the University is a statutory body whose objects include the advancement of learning and knowledge, and the provision of university education (Murdoch University Act 1973 (WA) s 5), is relevant because it is consistent with those objects to favour rather than disfavour open proceedings. However the connection between educational objects of the University and the desirability of information about the University being disclosed in or as a result of court proceedings seems to me to be a tenuous one. Once again, it does not add much to the already strong predisposition of the court in favour of open justice.
55 Fifth, it was said that the ongoing conduct of the present litigation will be hampered unless orders are made alleviating the burden of s 16(1) and s 16(3) of the PID Act. It is difficult to see why that is so. I have made orders giving the parties unrestricted ability to file and serve documents. If, hypothetically, a third party seeks access to those documents and is denied access, that will not hamper the conduct of the proceedings. Conceivably, if a party seeks orders protecting the alleged confidentiality of any information in the course of any hearing or judgment, that could hamper the litigation. But no such orders have yet been sought. Experience shows that if they are sought, it is likely that it will be possible to deal with the issue pragmatically, in a variety of ways that do not impair the process of the court.
56 It will be evident that the written submissions filed on behalf of the applicant have not persuaded me to make the order sought. However in oral submissions counsel for the applicant made some stronger points. One was that the statement of claim, which contains detail as to the alleged public interest disclosure and who it is about, is, with the consent of the University, available for inspection and in unredacted form on the court file. The applicant submits this means the University's interest in the protections afforded by s 16(3) should be given less weight than it otherwise would be.
57 I accept that is a relevant consideration and I take it into account. I do not place a great deal of weight on it, however, because the University is not the only person who, potentially, is entitled to the protection of s 16(3). It is not clear from the statement of claim and the limited evidence filed thus far whether the proceedings will involve information tending to identify any individual as a person in respect of whom a disclosure of public interest information has been made. In those circumstances, it would not be appropriate to authorise in advance the disclosure of any such person's identity without at least giving him or her an opportunity to be heard.
58 That is also an answer to the perhaps even stronger point that these reasons are in the public domain, and they tend to identify the University as a person in respect of whom an alleged public interest disclosure has been made. Also, there may be a difference for the purposes of the discretion between information that tends to identify a person and information that directly identifies the person.
59 Counsel for the applicant submitted that while the objective evident from s 16(3) was a relevant consideration, it should be given diminished weight in circumstances where s 15 of the PID Act prohibits victimisation and where the applicant has raised an arguable case that victimisation has occurred. But I see no real connection between the two; clearly prohibition of victimisation and protection of the identity of certain persons are both among the objectives of the PID Act. Counsel did not explain how those objectives were in any way inconsistent with each other or how the prohibition on victimisation might otherwise require lifting or modification of the prohibition in s 16(3).
60 Counsel for the applicant also pointed to the possibility that a person may risk criminal sanction by talking about something which anyone can find out by going to the court file. But it does not follow that the court should permit in broad terms disclosure of the contents of the court documents on other occasions, or every other disclosure of information which might otherwise breach s 16(3). As will become apparent, in my view different measures are appropriate to deal with the risk.
61 Counsel raised as another example that the applicant, as a member of the University Senate, may take the view that s 16(3) prevents him talking about the alleged public interest disclosure to another member of the Senate, even though that other member is aware of the disclosure. But if that is indeed a consequence of the proper construction of the legislation, then I need to give it due weight. In any event, I do not consider that a hypothetical situation like that warrants a blanket exemption, nor do I consider it possible or desirable to make orders, in advance, covering what is no doubt a large number of such hypotheticals.
62 Counsel for the applicant also made submissions based on the risk incurred by non-parties (which may include employees and contractors of parties) if they disclose the contents of documents filed or evidence adduced in the proceedings, if that tends to identify the a person in respect of whom a disclosure of public interest information has been made under the Act. For example on one, admittedly broad, view of the prohibition in s 16(3), an employee of a company that obtains a copy of the statement of claim could contravene the provision merely by giving that document to another employee. That is in circumstances where contraventions potentially attract criminal sanctions.
63 In that regard, counsel referred me to the following passage from R v JP [2008] VSC 86 at [26] (Whelan J), which concerned a restriction on publication of the identity of protected witnesses that is found in s 10(5) of the Victorian Witness Protection Act:
The protection of the identity of persons to whom the Witness Protection Act applies is a matter of great significance. It may in some cases truly be a matter of life and death. Section 10(5) is expressed in very wide terms. There is considerable potential for uncertainty as to its application in a particular case. A person's status as a participant whose identity is protected under s.10(5) is itself a matter which cannot be disclosed. These are circumstances which do not necessarily arise in relation to other statutory prohibitions on publication. Given these matters, where the source of the information in question is a judgment or sentence of the Court itself in my view the court ought not to deliver judgment or sentence and leave the matter of compliance with s.10(5) unaddressed. This is particularly so where the court is of the view that disclosure of some parts of the judgment, or sentence could be disclosed without contravening s.10(5), and some parts could not. In my view in such circumstances it is necessary in order not to prejudice the administration of justice that the court should order that the material which the Court considers cannot be disclosed without contravening s.10(5) is prohibited from publication. It seems to me that otherwise the recipients of the information in the judgment or sentence are placed in an unnecessarily uncertain and potentially dangerous position, and the risk of a disclosure and breach of s.10(5) is unacceptably high.
64 I accept that potential risk to third parties of breaching s 16(3) of the PID Act is a relevant factor in the exercise of the discretion here. It is the strongest point in favour of the orders sought. I note, however, that Whelan J's comments were directed towards clarifying what could and could not be disclosed. That is different to the broad permission to disclose sought here. I also note that in the passage quoted, his Honour confined the relevant observations to cases 'where the source of the information in question is a judgment or sentence of the Court itself'. In my view that qualification is relevant here. It is one thing for the court to put into the public domain information potentially exposing a large number of third parties to the risk of breach, many of whom will have little or no appreciation of that risk. It is another for the risk of breach to arise because a specific person has sought access to information on the court file - information of which the court is not the author. A third situation is when information is disclosed in open court; that is perhaps between the first two in terms of the level of risk and the court's responsibility for it.
65 In so far as these reasons are concerned, as I have said, the risk does not arise. In terms of any future judgment or orders which the court may publish, the risk is hypothetical. It can be addressed if and when any later judgment is delivered or relevant order made.
66 Which brings me to the main factor that, in my view, weighs decisively against making the order sought in the present application. I have already adverted to it in my comments on the first point advanced in the applicant's written submissions. The risks against which the order putatively guards are hypothetical. It might be said that risks are always hypothetical by their very nature. But here, with the exception of the originating process and statement of claim already filed, the order would not refer to any specific disclosure of any specific information, by any specific person, to any specific person.
67 In my view, the interests of justice do not require that such a broad pre-emptive order be made. In terms of documents filed to date, there is no evidence of any particular person being exposed to the risk, other than the ABC. And the ABC is a sophisticated media organisation able to obtain expert advice and make its own assessment of what it can and cannot disclose. The court specifically drew the ABC's attention to the issue to make sure it was not overlooked.
68 Perhaps the greatest level of risk of inadvertent breach at present is that another non-party seeks access to documents on the court file without being aware of the possible application of s 16(3) of the PID Act. As I have said, r 2.32 of the Federal Court Rules provides a mechanism by which that risk may be addressed appropriately, on a case by case basis, in so far as the documents are not in the class of documents to which the court routinely gives access without leave. In relation to that latter class, and even in relation to documents where leave to inspect is required, it seems to me that the risk is addressed appropriately by directing that when a party files a court document, the first page of the document contain a prominent notice as to the issue. With this possibility in mind, at the hearing I directed the parties to bring in minutes or, preferably, an agreed minute of wording appropriate for that purpose. They were able to reach agreement and that wording, with some modifications, is reflected in the orders I will make.