BDR21 v Australian Broadcasting Corporation

Case [2023] FCAFC 101

FEDERAL COURT OF AUSTRALIA

BDR21 v Australian Broadcasting Corporation [2023] FCAFC 101

File number: NSD 896 of 2021
Judgment of: RANGIAH, BROMWICH AND CHEESEMAN JJ
Date of judgment: 29 June 2023
Catchwords: PRACTICE AND PROCEDURE – Appeal from interlocutory orders to strike out parts of the appellant’s amended statement of claim – where summary judgment was given in favour of the respondent in respect of the causes of action arising from those paragraphs – whether the primary judge erred in striking out the impugned paragraphs – whether the primary judge erred in giving summary judgment in respect of causes of action to which the impugned paragraphs relate – whether it is unlawful to present evidence related to disclosures of public interest in respect of proceedings in Parliament, as outlined in section 16(3) of the Parliamentary Privileges Act 1987 (Cth) (PP Act) – whether a conflict exists between s 16(3) of the PP Act and s 24 of the Public Interest Disclosure Act 2013 (Cth) (PID Act) – whether s 24 of the PID Act excludes the operation of s 16(3) of the PP Act – Held: appeal dismissed with no order as to costs; summary judgment order to be reformulated
Legislation:

Constitution ss 49, 50, 51, 51(xxxvi), 51(xxxix), 128

Auditor-General Act 1997 (Cth) s 37(3)

Evidence Act 1995 (Cth)

Judiciary Act 1903 (Cth) s 78B

Parliamentary Privileges Act 1987 (Cth) ss 5, 16(1), 16(2), 16(3)

Public Interest Disclosure Act 2013 (Cth) Pt 2, Division 1, Subdivision B, ss 6(c), 10, 13, 13(1), 13(2), 14, 15, 16, 18, 21(2)(b), 24, 26, 26(1), 29, 80

Royal Commissions Act 1902 (Cth)

Constitution Act 1867 (Qld)

Acts Interpretation Act 1954–1977 (Qld) s 38(3)

Criminal Justice Act 1989 (Qld) s 118ZA

Parliamentary Papers Act 1992 (Qld) s 3

18 & 19 Vic. c. 55 (Imperial Act of Parliament) 1854 (Imp) s 35

Parliamentary Privileges Bill 1987 (Cth) item 3(c)

Public Interest Disclosure Bill 2013 (Cth) cl 24

Explanatory Memorandum, Auditor-General Bill 1996 (Cth)

Explanatory Memorandum, Parliamentary Privileges Bill 1987 (Cth)

Bill of Rights 1688 (UK) Art 9

Cases cited:

Aboriginal Legal Service of Western Australia v Western Australia (1993) 9 WAR 297

BDR21 v Australian Broadcasting Corporation [2021] FCA 960

British American Tobacco Australia Ltd v Secretary, Department of Health and Ageing [2011] FCAFC 107; 195 FCR 123

CMU16 v Minister for Immigration and Border Protection [2020] FCAFC 104; 277 FCR 201

Coco v The Queen [1994] HCA 15; 179 CLR 427

Crane v Gething [2000] FCA 45; 97 FCR 9

Criminal Justice Commission v Parliamentary Criminal Justice Commission [2001] QCA 218; [2002] 2 Qd R 8

Dill v Murphy (1864) 1 Moo PC (NS) 487; 15 ER 784

Fairfax v Commissioner of Taxation (1965) 114 CLR 1

Hammond v The Commonwealth [1982] HCA 42; 152 CLR 188

Jabbcorp (NSW) Pty Ltd v Strathfield Golf Club [2021] NSWCA 154

Knight v Victoria [2017] HCA 29; 261 CLR 306

Lambert v Weichelt (1954) 28…

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AGLC
BDR21 v Australian Broadcasting Corporation [2023] FCAFC 101
Case
[2023] FCAFC 101
Decision Date

CaseChat Overview and Summary

In BDR21 v Australian Broadcasting Corporation, the appellant challenged the primary judge's interlocutory orders, which included a striking out of parts of the amended statement of claim and a summary judgment in favour of the respondent. The dispute centred around the appellant's claims under the Public Interest Disclosure Act 2013 (Cth), particularly those arising from a letter sent in December 2018, and the interaction between this legislation and the Parliamentary Privileges Act 1987 (Cth). The appellant argued that the December 2018 letter constituted disclosable conduct and that the primary judge erred in striking out the relevant paragraphs and granting summary judgment.

The court was tasked with determining several legal issues, including the requirements for Commonwealth legislation to exclude the operation of s 16(3) of the Parliamentary Privileges Act, whether there was a conflict between s 16(3) of the Parliamentary Privileges Act and s 24 of the Public Interest Disclosure Act, and if the primary judge erred in striking out the paragraphs and granting summary judgment. The court concluded that there was no requirement for a declaration in substance to exclude the operation of s 16(3) of the Parliamentary Privileges Act. It also found that even if there was a conflict between s 16(3) and s 24 of the Public Interest Disclosure Act, s 24 did not exclude the operation of s 16(3). Furthermore, the court held that there was no conflict between s 16(3) and s 24 that would lead to s 24 excluding the operation of s 16(3). The primary judge did not err in striking out the impugned paragraphs, but there was an error in the formulation of the summary judgment order, which required reformulation.

The court dismissed the appeal with no order as to costs, but directed the parties to confer and submit agreed or competing draft orders to reflect the conclusion that there should be summary judgment in respect of the claim advanced in the amended statement of claim. The interlocutory application to adduce further evidence was dismissed. The appeal was otherwise dismissed with no order as to costs by reason of s 18 of the Public Interest Disclosure Act. The decision highlights the importance of correctly interpreting and applying Commonwealth legislation in the context of parliamentary privilege and public interest disclosures.

Orders

Orders of the court

1. The interlocutory application to adduce further evidence on the appeal dated 18 February 2022 be dismissed.

2. The parties confer and, within 14 days or such further time as is allowed, submit agreed or competing draft orders to give effect to the conclusion of the Full Court that there should be summary judgment in respect of the claim advanced in the amended statement of claim that impermissibly relied upon the December 2018 letter as a public interest disclosure, and impermissibly relied on the contents of that letter as a “PID belief” for the purposes of s 13(1)(b) of the Public Interest Disclosure Act 2013 (Cth).

3. The appeal otherwise be dismissed with no order as to costs.

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The primary judge rejected the appellant’s argument that he could rely on the allegations he made in the December 2018 letter about the ABC’s response as disclosable conduct under the PID Act because s 16(3) of the PP Act did not apply by reason of s 24 of the PID Act. The primary judge also rejected the appellant’s alternative argument that even if s 16(3) of the PP Act did apply, his claim based on the December 2018 letter should not have been summarily dismissed but only struck out because he could bring that part of his case in a way that did not breach s 16(3) of the PP Act. CONCLUSION IN SUMMARY FORM This appeal gives rise to the following questions for determination, which are answered as follows, for the reasons given in the balance of these reasons:(1)What is required for Commonwealth legislation to exclude the operation of s 16(3) of the PP Act?Answer: For Commonwealth legislation to exclude the operation of s 16(3) of the PP Act, a declaration in substance to that effect is required. Legislation with a provision that falls short of meeting that description will not exclude the operation of s 16(3) of the PP Act.(2)Assuming there is a conflict between s 16(3) of the PP Act and s 24 of the PID Act, do the terms of s 24 exclude the operation of s 16(3)?Answer: No. Even if there is a conflict between s 16(3) of the PP Act and s 24 of the PID Act, the terms of s 24 of the PID Act do not amount to a declaration in substance which excludes the operation of s 16(3) of the PP Act.(3)Is there a conflict between s 16(3) of the PP Act and s 24 of the PID Act?Answer: No. There is no conflict between s 16(3) of the PP Act and s 24 of the PID Act which gives rise to any basis for s 24 to exclude the operation of s 16(3). That is, even if:(a)contrary to answer (1) above, there is no need for a declaration in substance in order to exclude the operation of s 16(3) of the PP Act, (b)contrary to answer (2) above, s 24 is such a declaration in substance, the scope of s 24 of the PID Act does not inhibit the operation of s 16(3) of the PP Act in this case.(4)Did the primary judge err in striking out the paragraphs of the ASOC?Answer: No.(5)Did the primary judge err in giving summary judgment in respect of causes of action as pleaded in the struck out paragraphs of the ASOC?Answer: No. But it is necessary to reformulate the orders made. The primary judge erred in the formulation of the order granting summary judgment, but did not err in concluding that there should be summary judgment in respect of the causes of action advanced in the ASOC that relied upon the contents of the December 2018 letter. It follows that the summary judgment order is to be set aside and remade by the Court with input from the parties. The appeal is otherwise dismissed, with no order as to costs by reason of s 18 of the PID Act.LEGISLATIVE PROVISIONS The issues in this appeal trace back to s 49 of the Constitution and to Art 9 of the Bill of Rights. It is necessary for the purpose of considering the interaction between s 16(3) of the PP Act and s 24 of the PID Act to begin by having regard to the origin of the PP Act. The Constitution

Ratio Decidendi

Legal Principle Established

Second, and as alternative to the first category of submissions, the appellant submits that the causes of action that were summarily dismissed could have been pleaded and proved in a way which did not contravene s 16 of the PP Act. As such, the deficiencies in pleading were not “incurable”, and so the primary judge erred in giving summary judgment for the respondent on these causes of action, instead of merely striking out any offending paragraphs and granting leave to re-plead. The application to adduce fresh evidence is relevant to this aspect of the proposed appeal, it being submitted that the proposed fresh evidence illustrates one possible pathway by which the summarily dismissed causes of action might be established without contravening the PP Act. CONSIDERATION The appellant’s first argument is addressed below by considering the following issues:(1)What is required for Commonwealth legislation to exclude the operation of s 16(3) of the PP Act?(2)Assuming there is a conflict between s 16(3) of the PP Act and s 24 of the PID Act, are the terms of s 24 such as to exclude the operation of s 16(3)?(3)Is there a conflict between s 16(3) of the PP Act and s 24 of the PID Act?(4)Did the primary judge err in striking out the impugned paragraphs? The appellant’s second, and alternative, argument requires consideration of whether maintainable causes of action under the PID Act based upon the December 2018 letter being a PID are able to be re-pleaded, because the causes of action can be pleaded and proved in a manner that does not contravene s 16(3) of the PP Act. This argument is considered below as Issue (5), namely whether the primary judge erred in giving summary judgment in respect of the causes of action to which the struck out paragraphs related, so as to preclude those claims being re-pleaded.The appellant’s first argument: Is s 16(3) of the PP Act excluded in the present context?Issue (1): What is required for Commonwealth legislation to exclude the operation of s 16(3) of the PP Act?Issue (2): Assuming there is a conflict between s 16(3) of the PP Act and s 24 of the PID Act, are the terms of s 24 such as to exclude the operation of s 16(3)? It is convenient to deal with these two issues together, because, while they are different, and the second issue involves an assumption that is addressed by consideration of the third issue, the arguments advanced and their resolution are intertwined and closely related. During the course of the first appeal hearing, the Court raised a question about the requirements imposed by s 49 of the Constitution in relation to altering the operation of parliamentary privilege once it has been provided for by Parliament. Section 49 of the Constitution is reproduced at [18] above. The issue raised went to the interpretation of s 16(3) of the PP Act in the context of s 49 of the Constitution, not to the validity of s 16(3) per se. The s 78B notices to which reference was made at the outset were then served. As noted, none of the attorneys-general intervened.