Boyle v Director of Public Prosecutions (Cth) - [2024] SASCA 73

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Civil)
BOYLE v DIRECTOR OF PUBLIC PROSECUTIONS (CTH)
[2024] SASCA 73
Judgment of the Court of Appeal
(The Honourable Justice Lovell, the Honourable Justice Doyle and the Honourable Justice David)
19 June 2024
PROCEDURE - STATE AND TERRITORY COURTS: JURISDICTION, POWERS AND GENERALLY - JURISDICTION
STATUTES - ACTS OF PARLIAMENT - INTERPRETATION
STATUTES - ACTS OF PARLIAMENT - INTERPRETATION - PARTICULAR CLASSES OF ACT - REMEDIAL OR BENEFICIAL ACTS OR PROVISIONS
The appellant was employed at the Australian Taxation Office (“ATO”) and lodged a public interest disclosure (“PID”) under the Public Interest Disclosure Act 2013 (Cth) (“the Act”).
The appellant allegedly committed 24 criminal acts in order to obtain evidence to support the information contained in his PID. After lodging his PID, the appellant uploaded some of the material he had obtained to a ProtonMail account. His lawyer, Mr Findlay, was given the ability to access the ProtonMail server account but agreed with the appellant that he would not do so until the appellant permitted it.
The appellant was charged with 24 criminal offences, namely, using his mobile phone to take photographs of taxpayer information (counts 1-2 and 11-15); covertly recording conversations with ATO colleagues (counts 3-6 and 8-10); and uploading photographs of taxpayer information to a ProtonMail server account (counts 16-24).
The main issues before the primary Judge were whether the alleged unlawful anterior acts committed by the appellant attracted the immunity from criminal liability contained within s 10(1)(a) of the Act, and whether the appellant by uploading material to the ProtonMail server account and potentially giving his lawyer access, amounted to a “legal practitioner disclosure”, thus attracting the immunity.
The primary Judge found the appellant’s conduct in relation to his internal disclosure and his legal practitioner disclosure did not attract the immunity under s 10(1)(a) of the Act and dismissed the application. The appellant appeals that decision on the following five grounds:
1.The appellant’s claim for immunity under s 10 of the Act were criminal rather than civil proceedings;
2.The legal onus of proof to be applied was proof beyond reasonable doubt, rather than proof on the balance of probabilities;
3.The immunity under s 10(1)(a) of the Act extends to anterior conduct that reasonably form part of making a PID;
4.The appellant’s conduct reasonably formed part of the process of making a PID; and
5.The uploading of the material to a ProtonMail server account constituted a legal practitioner disclosure under s 26 of the Act.
The appeal is dismissed.
Held, per Doyle JA (Lovell and David JJA agreeing) in relation to Grounds 1 and 2:
1.The District Court had civil jurisdiction to determine the appellant’s claim for immunity under s 8(4) of the District Court Act 1991 (SA), as conferred by s 23(1) of the Act;
2.The proceedings for the appellant’s claim of public interest immunity under s 23(1)(c) of the Act were properly characterised by the primary Judge as civil proceedings; and
3.The applicable standard of the persuasive onus upon the respondent resisting the appellant’s claim for immunity under s 23(1)(b) of the Act was the balance of probabilities.

Held, per Lovell JA (Doyle and David JJA agreeing, with Doyle JA adding his own observations in relation to Ground 3) in relation to Grounds 3, 4 and 5:
4.The immunity for “making” a public interest disclosure under s 10(1)(a) of the Act is confined to the act of disclosing information and does not extend to the appellant’s anterior acts of obtaining and recording information the subject of counts 1-6 and 8-15.
5.In any event, on the facts, the conduct of the appellant did not reasonably form part of making a PID.
6.On the facts, uploading the material to the ProtonMail server account did not amount to a legal practitioner disclosure as defined under s 26 of the Act.

Acts Interpretation Act 1901 (Cth) s 15AA; Australian Constitution ss 71 and 77(iii); Criminal Code Act 1995 (Cth) ss 11.1(1), 13.3(6) and 122.5(4); District Court Act 1991 (SA) ss 8(4), 9(1) and 9(4); Judiciary Act 1903 (Cth) ss 39(2) and 68(2); Listening and Surveillance Devices Act 1972 (SA) s 4; National Security Legislation Amendment (Espionage and Foreign Interference) Act 2018 (Cth); Ombudsman Act 1974 (NSW) s 25H; Public Interest Disclosure Act 2013 (Cth) ss 6, 7, 8, 10, 11, 11A, 12, 12A, 13, 14, 15, 16, 17, 18, 19, 19A, 23, 26, 28, 29, 34, 42, 43, 44, 45, 47, 48, 50, 50A, 51, 52, 53 and 57; Taxation Administration Act 1953 (Cth) ss 8WB(1)(a), 8WB(1)(c), 355-25(1)(b)(i) and 355-25(1)(b)(ii), referred to.
ADCO Constructions Pty Ltd v Goudappel (2014) 254 CLR 1; Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; Attorney-General (Cth) v Huynh (2023) 97 ALJR 298; Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2018) 262 CLR 157; Boyle v Commonwealth Director of Public Prosecutions [2023] SADC 27; Brown v The Queen (1986) 160 CLR 171; CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384; Day & Dent Constructions Pty Ltd (In Liq) v North Australian Properties Pty Ltd (1982) 150 CLR 85; Dietman v Karpany (2023) 377 FLR 307; Dudley v Department of Primary Industries and Regions South Australia [2018] SASCFC 23; Fingleton v The Queen (2005) 227 CLR 166; Howell v O’Brien [2009] NSWSC 538; IW v City of Perth (1997) 191 CLR 1; New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (2016) 260 CLR 232; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; R v A2 (2019) 269 CLR 507; R v Gee (2003) 212 CLR 230; R v Khazaal (2012) 246 CLR 601; R v Pacitti (2022) 141 SASR 482; Solomons v District Court (NSW) (2002) 211 CLR 119; SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; Taylor v Owners – Strata Plan No 11564 (2014) 253 CLR 531; Tjungarrayi v Western Australian (2019) 269 CLR 150; Victims Compensation Fund Corporation v Brown (2003) 77 ALJR 1797, considered.

BOYLE v DIRECTOR OF PUBLIC PROSECUTIONS (CTH)
[2024] SASCA 73
Court of Appeal – Civil: Lovell, Doyle and David JJA

LOVELL JA: The respondent accepts that the appellant is a whistle-blower as that term is commonly understood. The appellant disclosed information to an authorised person pursuant to the terms of the Public Interest Disclosure Act2013 (Cth) (“the Act”). It was common ground on appeal that the appellant’s conduct in disclosing the information attracted an immunity from criminal prosecution under the Act. The appellant, however, faces criminal charges, not for the disclosure of information he believed needed to be disclosed, but for his conduct in unlawfully gathering evidence he considered would support his disclosure. The main issue on appeal is whether the appellant’s conduct in gathering evidence to support his disclosure of information also attracts the immunity under the Act.
I have had the advantage of reading the draft judgment of Doyle JA in relation to Grounds 1 and 2. I agree with his reasons on those grounds. In this judgment I deal with Grounds 3, 4 and 5. I would dismiss the appeal. My reasons follow.
Background
The Act establishes a framework for a Commonwealth Government employee to make a public interest disclosure (as defined) to an authorised internal recipient or supervisor if they become aware of disclosable conduct (as defined). This is described as an internal disclosure. The internal recipient of a public interest disclosure is authorised to investigate the disclosure. If the Commonwealth Government employee complies with the framework, they attract under the Act an immunity from criminal, civil or administrative liability for making the disclosure.
Apart from an internal disclosure, the Act recognises three other types of disclosure, each of which requires the adoption of a different procedure. In the context of this case, only the legal practitioner disclosure is relevant.
The appellant at the relevant times was employed by the Australian Taxation Office (“ATO”) as a debt collection officer in the Early Intervention Section of the Debt Business Line. The primary Judge accurately set out in her reasons the full history of the matter. It is not necessary for the disposition of the appeal to repeat it.
In summary, the appellant became, to use a neutral phrase, disgruntled and unhappy with a direction to staff to issue Standard Garnishees on taxpayer bank accounts in certain circumstances rather than employ a less harsh regime. The appellant considered that “[d]ebt staff in multiple units around the country were inappropriately, indiscriminately, and carelessly issuing Standard Garnishees during the month of June 2017, due to unethical directives of the Debt leadership”.
The appellant also had other concerns, including that he was unjustly treated in 2015-16 for his case management and that he was singled out and victimised because he had spoken out during a meeting against the Standard Garnishee directive when it was initially issued on 8 June 2017.
The appellant at the relevant time was a Commonwealth public service employee and was therefore entitled to utilise the provisions of the Act which provides a framework for employees to disclose allegations of misconduct.
It was common ground that the appellant, on 12 October 2017, lodged a public interest disclosure (“PID”) with the ATO and that it complied with the requirements of the Act. Information contained within the PID attracted the immunity.
The appellant’s PID was allocated to an authorised recipient for investigation pursuant to s 43 of the Act. His PID was not dealt with appropriately. By letter emailed to the appellant on 27 October 2017, the authorised recipient advised that he had discontinued the investigation pursuant to s 48(1)(c) of the Act, having determined that the disclosure did not concern serious disclosable conduct. It is accepted for the purposes of this litigation that this decision was incorrect.
On 6 September 2017, the appellant was placed on paid leave pending investigation of alleged breaches of the Australian Public Service Code of Conduct (“the Code of Conduct”). The appellant was served with a supplementary notice of suspected breaches of the Code of Conduct on 8 January 2018.
Whilst on leave, the appellant instructed a solicitor to act for him in relation to the alleged breaches of the Code of Conduct. The solicitor attempted to negotiate with the ATO a Deed of Release and Settlement in relation to the appellant’s employment which he ultimately rejected. On 21 February 2018, the appellant instructed a new solicitor, John Findlay, to act for him.
Investigations revealed that the appellant, between 19 April 2017 and 22 February 2018, had used his mobile phone to take photographs of taxpayer information and covertly record conversations with ATO colleagues. Further investigations revealed that between 27 February 2018 and 3 March 2018, that is after he had lodged his PID form, the appellant uploaded photographs of taxpayer information to a ProtonMail server account of the legal practitioner Mr Findlay.
In relation to his conduct in gathering information and also in passing on information to Mr Findlay, the appellant has been charged with a number of criminal offences, namely:
·Taking photographs of taxpayer information (federal offences - counts 1, 2, 11, 12, 13, 14, and 15);[1]
·Covertly recording conversations with ATO colleagues (state offences - counts 3, 4, 5, 6, 8, 9 and 10);[2] and
·Uploading photographs of taxpayer information to a ProtonMail server of Mr Findlay (federal offences - counts 16-24).[3]
[1] Counts 1, 2, 11, 12 and 15: Make a record of protected information contrary to s 355-25(1)(b)(i) of sch 1 of the Taxation Administration Act 1953 (Cth).
Counts 13 and 14: Record another person’s tax file number contrary to s 8WB(1)(a) of the Taxation Administration Act 1953 (Cth).
[2] Counts 3, 4, 5, 6, 8, 9 and 10: Using a listening device to overhear, record, monitor or listen to a private conversation contrary to s 4 of the Listening and Surveillance Devices Act 1972 (SA).
[3] Count 16: Make a record of protective information by a taxation officer, contrary to s 355‑25(1)(b)(i) of sch 1 of the Taxation Administration Act 1953 (Cth).
Counts 17, 18, 19, 22, 23 and 24: Attempt to disclose protected information to another entity contrary to s 11.1(1) of the Criminal Code (Cth) and s 355-25(1)(b)(ii) of sch 1 of the Taxation Administration Act 1953 (Cth).
Counts 20 and 21: Attempt to divulge or communicate another person’s tax file number to a third person contrary to s 11.1(1) of the Criminal Code (Cth) and s 8WB(1)(c) of the Taxation Administration Act 1953 (Cth).
It is common ground that count 7 is not relevant to this appeal.
To complete the narrative, on 26 March 2018, the relevant decision maker within the ATO determined that the appellant had breached the Code of Conduct when he remitted the general interest charge (“GIC”) in relation to two taxpayers:
On the evidence before me, I am satisfied that Mr Boyle has intentionally disregarded ATO policy and processes in making decisions about the remission of GIC ... and has instead made decisions based on his personal values apparently to address his concerns about the fairness of the ATO’s Debt policy (specifically in relation to garnishees), its effectiveness in securing willing compliance with the tax system and his desire to achieve what he perceives to be a ‘fair’ outcome for taxpayers.
The decision maker also found that the appellant had breached the Code of Conduct by storing taxpayer information on his H Drive and behaving in an inappropriate, intimidating and aggressive manner during the training session on 24 August 2017.
On 9 April 2018, the Australian Broadcasting Corporation (“ABC”) presented a story called ‘Mongrel bunch of bastards’ as a Four Corners program. It featured taxpayers talking about their adverse experiences with the ATO. The appellant appeared as a whistle‑blower.
On 1 May 2018, the ATO terminated the appellant’s employment by way of sanction for the determined Code of Conduct breaches.
In March 2019, the Inspector-General of Taxation and Taxation Ombudsman released a ‘Review into the Australian Taxation Office’s use of Garnishee Notices’. The review was commenced “to maintain community confidence in the administration of the tax system after serious allegations were made about the [ATO’s] inappropriate use of garnishee notices on small businesses” by a current and former ATO officer on the ABC Four Corners program on 9 April 2018.
Immunity proceedings
The appellant pleaded not guilty to all 24 counts on the Information in the District Court of South Australia. Relying on s 10(1)(a) of the Act, the appellant applied to the Court seeking a declaration that he was immune from “civil, criminal or administrative liability” for making a PID on 12 October 2017 regarding conduct at the ATO. As mentioned, it was common ground that the appellant had made a PID on 12 October 2017.
In relation to counts 1-15 (excluding count 7 where immunity is not sought), the appellant submitted the conduct the subject of the charges was reasonably part of the process of making the public interest disclosure and therefore attracted the immunity. In relation to counts 16-24, the appellant submitted that he was entitled to immunity from criminal liability for his conduct as the conduct was a legal practitioner disclosure as defined in the Act.
The appellant and Mr Findlay gave evidence before the primary Judge. The primary Judge found that the appellant’s conduct in relation to his internal disclosure and his legal practitioner disclosure did not attract the immunity under s 10(1)(a) and dismissed the application.
The appellant appeals that decision.
Grounds of appeal
The appellant appeals against the primary Judge’s decision on the following grounds:
1.The [primary] Judge erred in determining that the ‘separate proceedings’ conducted pursuant to s 23(1)(c) of [the Act], to determine the appellant’s claim for immunity under s 10 of [the Act], were civil rather than criminal proceedings.
1.1 The [primary] Judge ought to have found that the Court was exercising federal criminal jurisdiction in respect of the matter pursuant to s 68(2) of the Judiciary Act 1903 (Cth).
2. The [primary] Judge erred in determining that the legal or persuasive onus cast upon the prosecution by s 23(1)(b) of [the Act] was proof on the balance of probabilities rather than proof beyond reasonable doubt.
3. The [primary] Judge erred in her construction of the scope of s 10(1)(a) of [the Act].
3.1     The [primary] Judge erred in finding that immunity from liability ‘for making the public interest disclosure’ is confined to the actual disclosure of information by a public official to an authorised recipient.
3.2     The [primary] Judge ought to have found that immunity extends to anterior acts of the discloser (including criminal acts) that reasonably formed part of the process which resulted in the creation of the disclosure (including the recording and collection of evidence relating to the disclosure).
4. The [primary] Judge erred in finding that the appellant’s conduct in performing the acts the subject of counts 1-6 and counts 8-15 did not reasonably form part of the process of making the public interest disclosure.
4.1     The [primary] Judge relied upon alternative steps that her Honour subjectively considered could have been undertaken by the appellant in lieu of criminal acts.
4.2     The [primary] Judge thereby failed to properly consider whether criminal acts (contemplated by s 10) reasonably form part of the process of making the public interest disclosure.
5. The [primary] Judge erred in finding that the appellant’s conduct in performing the acts the subject of counts 16-24 did not constitute legal practitioner disclosures as defined in s 26 of [the Act].
5.1 The [primary] Judge erred in finding that the uploading of the subject photographs to a Proton Mail server account did not constitute a disclosure of information for the purposes of s 26 of [the Act].
5.2    The [primary] Judge erred in finding that, if the uploading of the photographs did amount to such a disclosure, the appellant had failed to discharge the onus of adducing or pointing to evidence that it was made for the purpose of obtaining legal advice or professional assistance from his solicitor in relation to the appellant having made a public interest disclosure.
Public Interest Disclosure Act 2013 (Cth)
The long title of the Act describes it as an “Act to facilitate disclosure and investigation of wrongdoing and maladministration in the Commonwealth public sector, and for other purposes”.
The objects of the Act are expressly identified in s 6:
6 Objects
The objects of this Act are:
(a) to promote the integrity and accountability of the Commonwealth public sector; and
(b) to encourage and facilitate the making of public interest disclosures by public officials; and
(c)to ensure that public officials who make public interest disclosures are supported and are protected from adverse consequences relating to the disclosures; and
(d)to ensure that disclosures by public officials are properly investigated and dealt with.

Section 7[4] provides an overview of the Act. In essence, the Act creates protections for current and former public officials from adverse consequences of disclosing information that, in the public interest, should be disclosed.[5] These protections are from liability, reprisals and identification.[6]
[4]     As at the relevant time.
[5]     Public Interest Disclosure Act 2013 (Cth) s 7(1)(a).
[6]     Public Interest Disclosure Act 2013 (Cth) ss 7(2)(a)-(c).
The Act outlines the different disclosure pathways, as well as the administrative pathway for those wishing to make a disclosure. There are several procedural and substantive preconditions to a disclosure being a valid PID that attract the protection of the Act. The Act also provides for the investigation of matters that are disclosed.[7]
[7] Public Interest Disclosure Act 2013 (Cth) s 7(1)(b).
The Act also outlines the administrative pathway for those who wish to make a disclosure. There are several procedural and substantive preconditions to a disclosure being a valid PID that attract the protection of the Act.
The first question to consider is what amounts to a public interest disclosure. Public interest disclosure is defined in s 8 as having the meaning given by Subdivision A of Division 2 of Part 2. That is a reference to s 26 of the Act.
Section 26 relevantly states:
26 Meaning of public interest disclosure
(1)     A disclosure of information is a public interest disclosure if:
(a)     the disclosure is made by a person (the discloser) who is, or has been, a public official; and
(b)     the recipient of the information is a person of the kind referred to in column 2 of an item of the following table; and
(c)     all the further requirements set out in column 3 of that item are met:
…
The table to s 26 (“the table”) identifies four types of public interest disclosure: internal disclosure, external disclosure, emergency disclosure and legal practitioner disclosure. For the purposes of this matter, the relevant public interest disclosures are the internal disclosure and the legal practitioner disclosure. The relevant features of these disclosures are:
·Internal disclosure (item 1 of the table): An internal disclosure may be made to an authorised internal recipient (defined at s 34 of the Act), or a supervisor of the discloser, if the information tends to show, or the discloser believes on reasonable grounds that the information tends to show, one or more instances of disclosable conduct.
·Legal practitioner disclosure (item 4 of the table): A legal practitioner disclosure is made to an Australian legal practitioner for the purpose of obtaining legal advice, or professional assistance, from the recipient in relation to the discloser having made, or proposing to make, a PID.
·Information is defined in s 8 as being in relation to a disclosure, including an allegation made in conjunction with another disclosure of information.
The disclosure of information must be in relation to disclosable conduct. This is defined in s 29 as conduct engaged in by an agency, public official or contracted service provider for a Commonwealth contract. A table in s 29 provides examples of disclosable conduct, including conduct that contravenes a law of the Commonwealth, a State or a Territory (item 1), conduct that perverts the course of justice or involves corruption of any other kind (item 3), conduct that constitutes maladministration, including conduct that is based on improper motives, or is unreasonable, unjust or oppressive, or is negligent (item 4), and conduct that is an abuse of public trust (item 5).
Thus, it is apparent that a valid PID may only be made in narrow circumstances. As is explained below, this assumes significance in the construction of s 10(1)(a) as the immunity is conditioned on the person having made a valid PID.
Protection of disclosers
Part 2 of the Act deals with protection of disclosers. That protection is of three broad kinds: immunity from liability, protection from reprisals and protection of identity. The focus for present purposes is on the immunity from liability provided by s 10.
Section 10 relevantly states:
10 Protection of disclosures
(1) If an individual makes a public interest disclosure:
(a) the individual is not subject to any civil, criminal or administrative liability (including disciplinary action) for making the public interest disclosure; and
…
That is, an individual who makes a PID is immune from criminal liability for making the PID.
The protection does not apply to liability (including disciplinary action) for knowingly making a statement that is false and misleading.[8] It does not apply to liability for making a disclosure that knowingly and unreasonably contravenes certain restrictions on publication,[9] such as a breach of a non-publication or suppression order.[10] Whether the individual’s disclosure of his or her own conduct is a PID does not affect his or her liability for the conduct.[11]
[8] Public Interest Disclosure Act 2013 (Cth) s 11(1).
[9] Public Interest Disclosure Act 2013 (Cth) s 11A.
[10] Public Interest Disclosure Act 2013 (Cth) s 8 (definition of ‘designated publication restriction’).
[11] Public Interest Disclosure Act 2013 (Cth) s 12.
Investigation of disclosures
Part 3 of the Act deals with investigations. It provides for how the handling of internal disclosures should be allocated.[12] It creates a general obligation for the principal officer of an agency that is allocated to handle a disclosure to investigate the disclosure.[13] Despite that, the principal officer may decide not to investigate the disclosure in certain circumstances.[14] The appellant’s internal disclosure was not investigated because the relevant officer considered that it did not, to any extent, concern serious disclosable conduct.[15] Other grounds not to investigate include that the disclosure is frivolous or vexatious, or that the information is the same as information the disclosure of which has previously been investigated as a disclosure investigation.[16]
[12] Public Interest Disclosure Act 2013 (Cth) ss 42-45.
[13] Public Interest Disclosure Act 2013 (Cth) s 47.
[14] Public Interest Disclosure Act 2013 (Cth) s 48.
[15] Public Interest Disclosure Act 2013 (Cth) s 48(1)(c).
[16] Public Interest Disclosure Act 2013 (Cth) ss 48(1)(d)-(e).
Other features of Part 3 include that the principal officer must inform the discloser whether or not they will investigate the disclosure.[17] The officer must inform the relevant oversight body of a decision not to investigate.[18] On completing an investigation, the principal officer of the agency must prepare a report of the investigation.[19] Investigations must be concluded within 90 days.[20]
[17] Public Interest Disclosure Act 2013 (Cth) ss 50(1)(a)-(b).
[18] Public Interest Disclosure Act 2013 (Cth) s 50A.
[19] Public Interest Disclosure Act 2013 (Cth) s 51(1).
[20] Public Interest Disclosure Act 2013 (Cth) s 52(1).
At the time of the appellant’s disclosure, s 57 provided an immunity,[21] similar to the one in s 10(1)(a), for witnesses in an investigation into a PID.
[21] It was repealed and replaced by s 12A.
Ground 3
This ground of appeal raises the issue of the construction of s 10(1)(a) of the Act.
Appellant’s submissions
The appellant submitted that the primary Judge erred in limiting the immunity from liability to the actual disclosure of information rather than including anterior acts of the person disclosing the information. That is, anterior acts that reasonably form part of the process leading to the creation of the PID should attract the immunity. As there was no dispute that the appellant did make a PID, the issue is whether the appellant’s actions attracted the immunity under s 10 for those acts that reasonably form part of making the PID.
The dictionary meaning of making is “the act of someone or something that makes”,[22] that is the “process by which something is made to be as it is”.[23] In the context of this case, the appellant submitted that the expression “making” refers to the process of making the PID rather than the act of filing the PID. That is, “making” a PID included anterior acts that reasonably formed part of the process creating the disclosure. The anterior acts included recording information which assisted in the formulation of the PID and collecting evidence to support the information contained within the PID.
[22] Macquarie Dictionary (online at 15 May 2024) ‘making’ (def 1).
[23] Macquarie Dictionary (online at 15 May 2024) ‘making’ (def 2).
The appellant submitted that the scope of the immunity had to be construed considering the objects of the Act set out in s 6. In accordance with those objectives, s 10 provides a benefit to whistle-blowers that was not previously available. As the provision is beneficial and remedial in nature, the provision should be given the widest possible scope which a fair reading of the language will allow.[24]
[24] Day & Dent Constructions Pty Ltd (In Liq) v North Australian Properties Pty Ltd (1982) 150 CLR 85.
The appellant relied on the following observations made in IW v City of Perth:[25]
… beneficial and remedial legislation, … is to be given a liberal construction. It is to be given “a fair, large and liberal” interpretation rather than one which is “literal or technical”. Nevertheless, the task remains one of statutory construction. Although a provision of the Act must be given a liberal and beneficial construction, a court or tribunal is not at liberty to give it a construction that is unreasonable or unnatural. But subject to that proviso, if the term “service”, read in the context of the Act and its object, is capable of applying to an activity, a court or tribunal, exercising jurisdiction under the Act, should hold that that activity is a “service” for the purpose of the Act.
(citations omitted)
[25] (1997) 191 CLR 1, 12 (Brennan CJ and McHugh J).
The appellant also relied upon Howell v O’Brien,[26] where the Court applied a liberal construction of s 25H of the Ombudsman Act 1974 (NSW) which provided an immunity against defamation “because of a disclosure of information under” Part 3A of the Ombudsman Act 1974 (NSW). Auxiliary Justice Patten held:[27]
Consistently with section 33 of the Interpretation Act and the line of cases dealing with the interpretation of remedial, beneficial, and protective provision in statutes … in my opinion, section 25H should … be given the widest possible scope. As I have said Part 3A is plainly intended to facilitate a full and appropriate response to reportable allegations. It must be inferred that the legislature, by enacting section 25H, intended that those engaged in the investigation of a reportable allegation should receive full protection from civil litigation.
[26] [2009] NSWSC 538.
[27] Howell v O’Brien [2009] NSWSC 538 at [78].
Given the beneficial nature of s 10, the appellant submitted that it would be illogical for Parliament to have intended that s 10(1)(a) provide immunity for an act of disclosing information but not for the prior act of collecting information, even where the collected information is the same as that disclosed. If information is complex and detailed, a whistle-blower such as the appellant, may be required to memorise such information when preparing a PID. Parliament, the appellant submitted, could not have intended such a result.
In support of his argument the appellant also referred to various sections contained within Part 3 of the Act which relate to a principal officer’s investigation of a PID.
The principal officer of the allocated agency must investigate the disclosure.[28] However, a principal officer may decide not to investigate if “the discloser refuses or fails, or is unable, to give, for the purposes of the investigation, such information or assistance as the person who is or will be conducting the investigation asks the discloser to give”.[29]
[28] Public Interest Disclosure Act 2013 (Cth) s 47.
[29] Public Interest Disclosure Act 2013 (Cth) s 48(1)(i)(ii).
Section 53 enables a principal officer to conduct the investigation as they see fit. The principal officer may, for the purposes of the investigation, obtain information from such persons, and make such inquiries, as the principal officer sees fit.[30] The power to investigate includes the ability to obtain documents as s 57(1)[31] provides immunity from criminal or civil liability for a person who gives information, produces a document or answers a question if requested by the principal officer conducting the investigation.
[30] Public Interest Disclosure Act 2013 (Cth) s 53(2).
[31] Subsequently repealed and replaced by s 12A.
The significance of s 57(1), the appellant submitted, is that it confers immunity where a person “gives” information or answers or produces documents to an investigator, whereas the immunity under s 10(1)(a) applies for “making” a PID. The appellant submitted that the legislature’s use of the term “making” in s 10(1)(a) rather than “gives” as used in s 57(1), reinforces the submission that the legislature did not intend the scope of the s 10 immunity “for making the public interest disclosure” should be limited to only the actual disclosure of information. Further, the appellant submitted it may be implied from the combined effect of s 48(1)(i) and s 57(1) that a discloser may investigate information prior to having made a PID to an authorised recipient and may have collected information or documents that were not disclosed within the PID.
Finally, the appellant submitted the immunity in s 57(1) is expressed to apply to a person who gives information, documents or answers to an investigator pursuant to a request from the investigator. However, the immunity provided by s 57(1) does not protect the person for the obtaining of that information or document. This limitation on the s 57 immunity, it was submitted, accords with the legislature determining that the immunity provided by s 10(1)(a) applies to such a collection of information or documents where it reasonably forms part of the process of making an internal disclosure. If that were not the case, disclosers would be discouraged from complying with requests from investigators for information and documents previously collected, undermining the Act’s objective that disclosures should be properly investigated and dealt with.[32]
[32] Public Interest Disclosure Act 2013 (Cth) s 6.
The appellant submitted that his interpretation was supported by the text, context and purposes of the Act and s 10.
Human Rights Law Centre’s (“HRLC”) submissions
The HRLC supported the appellant’s interpretation of s 10(1)(a), albeit on a slightly narrower interpretation of the immunity. The HRLC submitted that not every act preceding a PID would enjoy the immunity. The immunity was limited and would only exist if there was a nexus between the act and the disclosure, and only where the act is reasonably necessary for the making of a valid disclosure.
The HRLC submitted that the use of the expression “making” denotes a process rather than a focus on the actual moment of disclosure. A PID cannot be made, they submitted, without the steps being made to prepare it. Thus, those preparatory steps with sufficient nexus to the disclosure should be regarded as part of making the disclosure.
On the primary Judge’s interpretation of the section, any antecedent acts, no matter how closely linked to or necessary for the disclosure, would carry the risk of not only criminal liability, but also civil and administrative liability. Even if the person making the disclosure attached material he or she had gathered preparatory to the disclosure, they would not be protected for gathering or possessing that material. This, the HRLC submitted, was an “absurd” conclusion. The HRLC submitted that such a result was an irrational, unjust, unreasonable, and even capricious result that renders the protection given by s 10(1)(a) futile.
Further, the HRLC submitted the primary Judge’s narrow interpretation of s 10(1)(a) limited the capacity of a person contemplating a PID from reaching the requisite state of “belief on reasonable grounds”. The ability of the person making the disclosure to support, with evidence, his “belief on reasonable grounds” is thus hampered. This, it was submitted, was inconsistent with the purpose and objects of the Act.
The inability to gather evidence also meant that a disclosure consisting of unsupported allegations may be easier to dismiss as frivolous, vexatious or not concerning serious disclosable conduct, therefore not warranting an investigation under s 48 of the Act.
The HRLC also submitted that the prosecution of the appellant, having made a disclosure, would have a “chilling effect” on others who may be considering making a disclosure.
The HRLC accepted that the bounds of an immunity for conduct reasonably necessary for making a disclosure are not precisely delineated, but the Act in other areas requires evaluative conclusions. The suggested interpretation of s 10(1)(a) does not introduce any uncertainty into the interpretation of the Act.
The HRLC relied on three matters relating to the structure and features of the Act which it submitted supported a wider construction.
First, features of the Act recognise that whistle-blowers are often not taken seriously, and their disclosures are dismissed. The obligation to investigate a PID, established by s 47, supports that submission. A PID with supporting evidence cannot be easily dismissed.
Secondly, an internal disclosure is not the only type contemplated by s 26. In certain circumstances, a person may also make an external disclosure or emergency disclosure. An external disclosure is likely to be made to a journalist or Member of Parliament who would be reluctant, without supporting evidence, to take the matter further.
Thirdly, support can be found in Part 5.6 of the Criminal Code (Cth) which deals with general secrecy offences. Dealing with “inherently harmful information” (as defined) in certain circumstances is a criminal offence, but importantly, s 122.5(4) provides that:
122.5 Defences
Information communicated etc. in accordance with the Public Interest Disclosure Act 2013 or the Freedom of Information Act 1982
(4)It is a defence to a prosecution for an offence by a person against this Division that the person communicated the relevant information, or removed, held or otherwise dealt with the relevant information for the purpose of communicating it, in accordance with:
(a) the Public Interest Disclosure Act 2013; or
(b) the Freedom of Information Act 1982.
Note: A defendant may bear an evidential burden in relation to the matters in this subsection (see subsection (12) of this section and subsection 13.3(3)).
(emphasis added)
With a narrow construction of the Act, a person making a disclosure would be protected from criminal liability for anterior conduct in respect of those categories of potential liability covered by s 122.5(4), but not for other offences or civil liability which lack a similar provision.
Finally, the HRLC submitted that as s 10 is in substance a power to make a disclosure free from liability that would otherwise attach, a grant of power carries with it everything reasonably necessary for the accomplishment of what is expressly provided. Thus, it was submitted that if the express words used are limited only to the act of making a public disclosure, then they also encompass those things which are reasonably necessary to form the making of the disclosure.
Respondent’s submissions
The respondent submitted that the primary Judge was correct in finding that the s 10(1)(a) immunity available to a person disclosing information, did not extend to anterior acts of the person gathering evidence to support the disclosure.
The respondent accepted that providing evidence supporting a disclosure may make the information disclosed more compelling. However, a public servant conducting their own investigation and potentially committing illegal and/or unauthorised acts to obtain such supporting evidence, is conduct inimical to the integrity and accountability of the public service.

Parliament, in enacting the Act, struck a balance between the integrity and accountability of the public sector (as outlined in s 6(a)) and the need for functionality and proper operation of the executive through the public sector. The balance is achieved, as is apparent from the structure of the Act, by the clear separation of the act of disclosing information from the function of investigating matters arising from the disclosure.
The respondent pointed to various factors which it submitted supported such an interpretation.
The respondent submitted that if Parliament had intended to allow someone making a PID to investigate and gather, illegally, evidence said to support the disclosure, it would have clearly said so. It did not do so, and the structure of the Act demonstrates that Parliament intended that a person other than the person disclosing the information conduct the investigation. The provisions of the Act do not contemplate an investigation to be undertaken other than by persons authorised under the Act. The investigative mechanisms provided in Part 3 of the Act, including s 57(1) which provides immunity to witnesses who give information, produce a document or answer questions when requested by an investigator, ensure an investigator has access to information that the person who made the disclosure could not obtain lawfully.
The legislature’s use of the phrase “reasonably necessary” in the definition of external disclosure,[33] strongly indicates that it was not intended that the phrase, or some similar phrase, should be read into s 10(1)(a). The respondent submitted that it is difficult to see why the phrase would not be expressed in s 10(1)(a) if it was intended that immunity would apply to both the actual disclosure of information and any reasonably necessary anterior conduct. The respondent submitted there is no justification for concluding that the expression “for making” includes acts reasonably necessary for the process of creating the disclosure.
[33] Public Interest Disclosure Act 2013 (Cth) s 26(1), table item 2, column 3, para (f).
The respondent submitted that it is not necessary that the information contained in the PID declaration be conclusive or demonstrate unequivocally the commission of disclosable conduct. A PID can be made if the information tends to show, or the discloser believes on reasonable grounds that the information tends to show, one or more instances of disclosable conduct.[34] That is, there is less need for supporting evidence.
[34] Public Interest Disclosure Act 2013 (Cth) s 26(1), table item 1, column 3 and item 2, column 3, para (a).
The respondent accepted that the Act was beneficial legislation. However, not all statutes that have protecting or benefiting purposes require all provisions to be construed protectively or beneficially.[35] Further, taking this approach may potentially obscure the questions regarding the meaning of the words.[36] Further, the respondent submitted when interpreting beneficial legislation, regard must be had to competing policy considerations. The respondent submitted that Parliament clearly had regard to the competing policy matters, discussed earlier, when enacting the legislation. Those reasons readily explain why the immunity does not cover a public official who engages in unlawful conduct to gather or seek disclosable information, in contrast to a public official who discovers such information in the ordinary course of employment.
[35] ADCO Constructions Pty Ltd v Goudappel (2014) 254 CLR 1 at [29] (French CJ, Crennan, Kiefel and Keane JJ).
[36] New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (2016) 260 CLR 232 at [32]-[33] (French CJ, Kiefel, Bell and Keane JJ).
The respondent submitted that reprisal protections contained in ss 13-19A of the Act support its interpretation of the Act. Section 13 defines what amounts to a reprisal widely. These provisions give wide protection for adverse employment consequences for making a PID independently of the immunity.
Turning to the HRLC’s submission that s 122.5(4) of the Criminal Code (Cth) supports a broad interpretation of s 10(1)(a) commensurate with the defence provided by s 122.5(4) to offences under Part 5.6, the respondent submitted that Part 5.6 was inserted by the National Security Legislation Amendment (Espionage and Foreign Interference) Act 2018 (Cth). The Explanatory Memorandum expressed the intention that the offences created in Part 5.6 should in no way impinge on the operation of the Act. The respondent submitted that it was unlikely that such an impingement would have been contemplated if it were thought that s 10(1)(a) of the Act already provided immunity akin to that conferred by s 122.5(4) of the Criminal Code (Cth). Section 122.5(4) thus does not support a wide construction of s 10(1)(a) of the Act.
In response to the appellant’s submission about the difference in wording between s 10(1)(a) and that in s 57(1), the respondent submitted that the difference in wording does not assist the construction for which the appellant contends. The s 57(1) immunity arises if there has been a request by an investigator. In response to that request a person gives information to the investigator. Pursuant to s 10(1)(a), the immunity arises upon the making of a disclosure. The respondent submitted that a disclosure is made rather than given; something is given in response to a request. When the words “give” and “making” are considered in their context, no significance can be placed on the use of different terms.
Discussion
The appellant urged the Court to find that the expression “for making the public interest disclosure” found in s 10(1)(a) refers to the process of constructing or making the PID, and this must include relevant anterior acts to the “making” of the PID. That is, “making” a PID included anterior acts that reasonably formed part of the process creating the disclosure. I reject the appellant’s interpretation. I also reject the HRLC submission that the immunity extends to conduct “reasonably necessary” for making the disclosure.
In assigning legal meaning to the words of a provision, the Court starts with consideration of the ordinary and grammatical sense of the statutory words to be interpreted having regard to their context and legislative purpose. That is, the process begins with the text but, as the meaning of words can never be acontextual, the process must also begin by examining the context.[37] The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.[38] Context, in its widest sense, and the purpose of the statute, inform the interpretative task throughout.[39]Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention.[40]
[37] R v A2 (2019) 269 CLR 507 at [163] (Edelman J).
[38] Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 at [47] (Hayne, Heydon, Crennan and Kiefel JJ).
[39] R v A2 (2019) 269 CLR 507 at [124] (Bell and Gageler JJ, in the minority on the result).
[40] Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27at [47] (Hayne, Heydon, Crennan and Kiefel JJ).
The principle that beneficial legislation is to be construed beneficially is a manifestation of the more general principle that legislation is to be construed purposively.[41] In the context of this case, the application of this more general principle is mandated by the requirements of s 15AA of the Acts Interpretation Act 1901 (Cth). It is only if more than one interpretation is available or there is uncertainty as to the meaning of words that the beneficial interpretation approach arises. The general principle relating to beneficial legislation assists in making constructional choices between competing interpretations that are textually available.
[41] Tjungarrayi v Western Australian (2019) 269 CLR 150 at [44] (Gageler J); New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (2016) 260 CLR 232 at [92] (Gageler J).
The fact that legislation might be remedial or beneficial in nature does not mean that the Court is at liberty to depart from the text and structure of the legislation, nor does it require the Court to find ambiguity where there is none. Further, to accept that a particular Act has a beneficial purpose as a whole does not mean that every provision or amendment to a provision has a beneficial purpose or is to be construed beneficially. The purpose of the provision under consideration must be identified.[42]
[42] ADCO Constructions Pty Ltd v Goudappel (2014) 254 CLR 1 at [29] (French CJ, Crennan, Kiefel and Keane JJ).
Turning to the appellant’s submissions, I accept that “making” has, in its ordinary sense, a variety of meanings; much depends on the context in which it is used. It can mean, as the appellant argued, shaping or putting parts together. That is, for example, to make a cake. Alternatively, as the respondent argued, it can mean to cause or bring about a particular result.
It can be seen from the structure of s 10 that the expression “for making the public interest disclosure” in s 10(1)(a) is a reference to the expression “public interest disclosure” found in s 10(1). That is clear from the use of the definite article in s 10(1)(a). Public interest disclosure is, as defined in s 26, a disclosure of information. The expression “makes a public interest disclosure” in s 10(1) clearly refers to the act of disclosing information. In context, the expression “for making the public interest disclosure” is a reference to the disclosure of information referred to in s 10(1). In my view, “making” referred to in s 10(1)(a) is the act of doing something, not constructing something. That is, the immunity applies to the act of disclosure not the act of gathering information to be disclosed.[43]
[43] “Making” in this context is used as a light verb. Light verbs differ from full verbs in that light verbs lack the semantic content that full verbs have. Full verbs are the core of a predicate, whereas light verbs form a predicate with another expression (often a noun) with full semantic content.
The Act strikes a balance between the integrity and accountability of the public sector and the need for the proper operation of the executive. The structure of the Act clearly separates the act of disclosing information from the function of investigating matters arising from the disclosure. The provisions of the Act do not contemplate an investigation be undertaken other than by persons authorised under the Act.
In my opinion, the construction for which the appellant contends runs contrary to the objects of the Act and the clear intention of Parliament that the investigation of any issue or information be left to investigators authorised under the Act.
Turning to the HRLC submissions, I reject the argument that the use of the word “for” requires only a “connection or relationship” between the liability and the disclosure. The cases the HRLC referred to in different and dissimilar contexts, as the respondent submitted, do not assist in the construction of this section. The HRLC submission that as the s 10(1)(a) immunity is a power to make a disclosure free from any criminal or civil liability, it should be construed as a power to do all things reasonably necessary to give effect to that disclosure free from any criminal or civil liability. This takes the matter no further given the clear intention of Parliament discussed earlier. In my opinion, the interpretation for which the HRLC contend, namely that s 10(1)(a) be construed as extending to conduct “reasonably necessary” for the disclosure, also runs contrary to the clear intention of Parliament.
In particular, the legislature’s use of the phrase “reasonably necessary” in the definition of external disclosure[44] strongly indicates that it was not intended that the phrase, or some similar phrase, should be read into s 10(1)(a).
[44] Public Interest Disclosure Act 2013 (Cth) s 26(1), table item 2, column 3, para (f).
While the HRLC contended for a narrower interpretation than that proposed by the appellant, the submission attracts similar difficulties to those faced by the appellant.
I accept, as did the respondent, that this interpretation may lead to some disclosable conduct not being detected. But Parliament had to balance that issue with the policy considerations mentioned. It has done so in clear terms. If Parliament had considered the immunity should cover the making or construction of the PID, it could have said so. It has not done so.
Both the appellant and the HRLC recognised that the immunity should not cover any and every anterior act of the person making the disclosure. As mentioned earlier, there are subtle differences in their respective approaches. However, both approaches require an extension of the immunity beyond the actual disclosure of information in the PID. There is nothing in the text or structure of the Act that would suggest that such an expression should be inferred from the wording of the Act or words be read into the Act.
I agree with the findings of the primary Judge that the immunity does not extend to the appellant obtaining and recording information the subject of counts 1-6 and 8-15.
I would dismiss Ground 3.
Ground 4
The primary Judge found that, even if she was wrong about the construction of s 10(1)(a) of the Act, the appellant’s conduct did not satisfy the test he proposed. That is, the primary Judge found that the appellant’s investigative conduct was not reasonably part of the process of the making of his PID on 12 October 2017.
Given my findings in relation to the interpretation of s 10(1)(a), it is strictly unnecessary for me to decide this ground of appeal. However, as the point was argued I will deal with it, as did the primary Judge, on the basis that the immunity applies, not just to the making of a PID, but also anterior acts which reasonably form part of the process of making a PID.
The appellant submitted that the primary Judge erred in placing undue weight on what she considered were available lawful steps the appellant could have taken in formulating his PID instead of committing the acts the subject of the charges. For example, the appellant submitted that the primary Judge erred in finding that instead of covertly recording various meetings, he could have asked for the meeting to have been recorded or, alternatively, have relied on the minutes of the meeting. The primary Judge also found that other aspects of the material underpinning the appellant’s PID could have been obtained by lawful means.
I reject the appellant’s submission. When considering the question of what anterior acts reasonably form part of the process of making the PID, it is clearly relevant to consider whether the appellant could obtain the same information legally. Self-evidently, if the same information could be obtained by lawful means, absent any other considerations, the obtaining of information illegally could not reasonably form part of the process of making the PID. While the availability of lawful means may not finally determine the question, it is a factor that is to be given weight in the overall assessment of the question of whether the conduct reasonably formed part of the process of making the PID. The appellant has not shown that the primary Judge erred in her approach.
The appellant also submitted the primary Judge erred in finding that his conduct did not reasonably form part of the process of making a PID because the content of the recorded conversations (relevant to counts 3-6 and 8-10) did not amount to evidence of disclosable conduct. The appellant submitted that if he reasonably believed that the recording of a conversation would assist in his formulation of his PID, or provide evidence to support it, then that of itself should be sufficient for his conduct to have reasonably formed part of the process of making the disclosure. That is, the appellant submitted, the approach of the primary Judge was flawed as whether a particular recording itself revealed disclosable conduct does not determine whether the recording reasonably formed part of the process of making a PID.
The respondent submitted the appellant’s submissions failed to consider the totality of the primary Judge’s findings on the topic. The primary Judge clearly considered that the appellant’s genuine belief might support a conclusion that the recordings were reasonably part of the process of making a PID but that such a factor did not determine the issue. The primary Judge did not determine the applicability of the immunity simply on the basis that the recordings themselves did not demonstrate disclosable conduct.
The respondent submitted that if anterior conduct may attract the immunity, then such conduct must be sufficiently connected to the disclosure by necessity, time and purpose. The primary Judge clearly had regard to all of the relevant factors when considering whether the appellant’s anterior conduct attracted the immunity. The respondent submitted that the overall findings made by the primary Judge permitted her to conclude that the relevant recordings were not reasonably necessary for the making of his PID.
I reject the appellant’s submissions. The primary Judge did not determine the applicability of the immunity simply on the basis that the recordings themselves did not demonstrate disclosable conduct. Further, I reject the appellant’s submission that if he reasonably believed that the recording of a conversation would assist in his formulation of his PID, or provide evidence to support it, then that of itself should be sufficient for his conduct to have reasonably formed part of the process of making the disclosure. On the appellant’s argument, there must be an objective element to the necessity for the anterior acts; it cannot be determined on the appellant’s subjective belief.
As the respondent submitted, it is necessary to have regard to all of the primary Judge’s findings on this topic. The primary Judge did not reject the applicability of the immunity simply on the ground that the content of the recordings did not demonstrate disclosable conduct. The primary Judge, having carefully considered the appellant’s evidence, found that the appellant had genuine concerns about what he believed was disclosable conduct when recording the conversations. She found that the appellant genuinely believed that recording the conversations was part of what he needed to do to make his PID because he would not be believed; he therefore needed to obtain evidence to support his PID.
However, the primary Judge also found that the recorded conversation on 31 August 2017 demonstrated the appellant’s state of mind at that time. She found, as the appellant conceded, that his mental health was poor because of his perception of workplace events. The primary Judge found that the appellant’s mental health impacted his decision-making in the way he went about gathering material to prepare and support his PID.
In relation to count 3, the primary Judge found that when the appellant decided to record the conversation with his two colleagues on 28 July 2017, he anticipated the meeting was part, or potentially part, of the reprisals against him. The same participants had met on 14 July 2017, and subsequently the appellant had been emailed detailed notes by one of the participants and was asked whether anything had been missed or whether references were inaccurate. The appellant did not respond. At the time of the meeting on 28 July 2017, the primary Judge found that the appellant could have expected the same would occur regarding notes of the meeting. In particular, the primary Judge found that the appellant was speculating about what might occur at that meeting. In those circumstances, she found it was not reasonably part of the process of making the PID to covertly record the meeting rather than rely upon a written record of it. The primary Judge applied the same reasoning to the recording the subject of count 4.

In relation to counts 5, 6, 8, 9 and 10, the appellant covertly recorded five conversations with individual colleagues. The primary Judge found that the appellant, during the conversations, told his colleagues about his views and then steered the conversation in an attempt to obtain their views on specific topics. It was in that context the primary Judge said she did not consider that any of the recordings were evidence of disclosable conduct. She specifically found that they were collation of views about work issues and that the subject matter of counts 8 and 9 simply demonstrated the speculative nature of the appellant’s conduct when covertly recording the conversations. That is, the recordings, despite the appellant’s genuine belief, were not objectively necessary for the making of the PID.
Further, the primary Judge noted that the appellant decided that the topic of these conversations did not specifically form part of his PID. The primary Judge found that the appellant made a deliberate decision not to reveal he was in possession of the audio recordings and that his decision not to disclose his position was born out of his understanding that he had “crossed the line” by engaging in that conduct.
The primary Judge gave cogent reasons as to why, having accepted that the appellant had a genuine belief that he needed to record conversations, the recordings were not reasonably necessary acts relating to the PID. The primary Judge did not reject the appellant’s submissions simply because the content of the conversations did not amount to disclosable conduct. Clearly, the primary Judge considered that the appellant’s genuine belief might support a conclusion that the recordings were reasonably part of the process of making a PID, but that such a factor did not determine the issue.
No error has been disclosed and I would dismiss Ground 4.
Ground 5
The appellant is charged with six counts of attempting to disclose protected information to another entity by a taxation officer, contrary to s 11.1(1) of the Criminal Code (Cth) and s 355-25(1)(b)(ii) of sch 1 of the Taxation Administration Act 1953 (Cth) (counts 17, 18, 19, 22, 23 and 24).[45] He is also charged with two counts of attempting to divulge or communicate another person’s tax file number to a third person, contrary to s 11.1(1) of the Criminal Code (Cth) and s 8WB(1)(c) of the Taxation Administration Act 1953 (Cth) (counts 20 and 21).
[45] Count 16 relates to a photograph taken for the purpose of including it amongst other photographs transmitted the subject of counts 17-24 and in particular, count 24 - the immunity is claimed on that basis. The photograph was taken on 22 February 2018 approximately four months after the PID was made.
It was common ground that the appellant uploaded the photographs to a ProtonMail server account in his name. When uploading the photographs, the appellant included Mr Findlay’s email address. Mr Findlay received an email advising him that the material had been uploaded to the ProtonMail server account. The use of the server meant the material was encrypted. The appellant gave Mr Findlay access to the account (and therefore potentially all the material), but both the appellant and Mr Findlay agreed that Mr Findlay would not access the account until the appellant authorised him to do so. Thus, Mr Findlay was not to access the account until some other, and undefined, event possibly occurred.
Pursuant to s 26 of the Act, one of the four types of public interest disclosures that may attract the immunity under s 10(1)(a) is a “legal practitioner disclosure”. An individual makes a legal practitioner disclosure if the disclosure is (i), made by a person who is, or has been, a public official; (ii), received by an Australian legal practitioner and (iii), complies with three further requirements which are as follows:[46]
(a) The disclosure is made for the purpose of obtaining legal advice, or professional assistance, from the recipient in relation to the discloser having made, or proposing to make, a public interest disclosure.
(b) If the discloser knew, or ought reasonably to have known, that any of the information has a national security or other protective security classification, the recipient holds the appropriate level of security clearance.
(c) The information does not consist of, or include, intelligence information.
[46] Public Interest Disclosure Act 2013 (Cth) s 26(1) table item 4, column 3, para (a)-(c).
For the purpose of the appeal, the s 10(1)(a) immunity applies if the disclosure of information was made for the purpose of obtaining legal advice, or professional assistance, in relation to the appellant having made a PID.
Two questions fell to be decided by the primary Judge. Was there a “disclosure” for the purpose of s 10(1)(a) and if so, was it for “the purpose of obtaining legal advice, or professional assistance, from the recipient in relation to the discloser having made, or proposing to make, a public interest disclosure”.
The appellant argued both before the primary Judge and this Court that by allowing Mr Findlay access to the account, even though they agreed he not open the emails, meant he had disclosed the information. The purpose, the appellant submitted, of him uploading the material and giving Mr Findlay access to the account was to obtain legal advice or professional assistance in relation to him having made a PID.
The respondent submitted that in the circumstances no disclosure was in fact made. The respondent accepted that the s 10(1)(a) immunity can apply to an attempt charge but that the facts established on this application demonstrated that the appellant did not make, nor did he attempt to make, a PID of the information the subject of counts 17-24 such as to attract the immunity. That is, s 10(1)(a) requires an actual disclosure of information as the immunity attaches “for making the public interest disclosure”.
In the alternative, the respondent submitted that if there was an actual disclosure, then the act of giving Mr Findlay access to the ProtonMail account was not for the purpose of obtaining legal advice or professional assistance in relation to him having made a PID.
If either proposition is established the appellant must fail in his application for an immunity.
The evidence
How and why the appellant sent Mr Findlay the information was disputed and the subject of evidence.
The appellant gave evidence but declined to call Mr Findlay. Cross-examination of the appellant was limited as the circumstances surrounding his contact with Mr Findlay were entirely within the appellant’s knowledge. The respondent had no information on which to mount a challenge to the appellant’s version of events.
After the appellant completed his evidence, he partially waived legal professional privilege enabling the respondent to call Mr Findlay to give restricted evidence. The respondent called Mr Findlay as they believed he could give relevant evidence on the topic.
It is apparent from the transcript that the respondent had not been able to obtain a statement from Mr Findlay before calling him and therefore was unaware of precisely what Mr Findlay would say when giving evidence. The appellant did not challenge Mr Findlay’s evidence.
The way the evidence was adduced meant there was little or no cross-examination of either the appellant or Mr Findlay on the relevant topics. That is, neither were challenged on their version of events. Their evidence was inconsistent on some issues.
The paucity of, and the inconsistencies in, the evidence on these issues is relevant when considering the operation of s 23 of the Act, which relevantly states:
23 Claims for protection
(1) If, in civil or criminal proceedings (the primary proceedings) instituted against an individual in a court, the individual makes a claim (relevant to the proceedings) that, because of section 10, the individual is not subject to any civil, criminal or administrative liability for making a particular public interest disclosure:
(a) the individual bears the onus of adducing or pointing to evidence that suggests a reasonable possibility that the claim is made out; and
(b) if the individual discharges that onus—the party instituting the primary proceedings against the individual bears the onus of proving that the claim is not made out; and
…
The primary Judge found that the appellant failed to produce evidence or sufficient evidence under s 23(1)(a) to attract the immunity. The appellant challenges that finding. As the primary Judge found that the appellant did not overcome the onus set out in s 23(1)(a), she did not go on to consider whether the respondent had, in any event, discharged the onus under s 23(1)(b).
The respondent submitted the primary Judge correctly found that the appellant had not produced evidence sufficient to discharge the onus set out in s 23(1)(a) and in any event, it clearly met the onus set out in s 23(1)(b).
Appellant’s evidence
The appellant tendered affidavits as part of his evidence in chief. Numerous exhibits were attached to those affidavits. While the appellant supplemented his affidavit evidence with oral evidence, in relation to his discussions with Mr Findlay, he relied entirely on what he stated in the affidavits.
In his first affidavit dated 6 May 2022, the appellant stated in reference to counts 17-24:
361.On the advice of my lawyer at the time, John Findley [sic], I uploaded these documents to my Proton Mail account’s server.
362.I uploaded most of these on 27 February 2018.
363.I subsequently located further taxpayer information which I uploaded immediately on 28 February 2018 and 3 March 2018, per counts 23 and 24.
364.John Findley [sic] advised me to do this for the purpose of providing legal advice in connection with my PID and so there was a protected, secure and encrypted record of material in my possession which could be used by me in the event of a public interest claim trial.
365.I did this on legal advice, without any intention or foresight that the information could or would be accessed by anyone.
366.When Mr Findley [sic] advised me by way of telephone conversation to attach all taxpayer information I had in my possession to the Proton Server via email, he stated that neither he nor anyone else would access the files, save for in legal proceedings related to my public interest disclosure.
367.Indeed, the evidence on prosecution’s case shows that they were not accessed by anyone and could not even by [sic] accessed by the investigators.
368.Again, I did this under legal advice and with genuine belief that the documents were secure and would not be accessed by anyone.
In his affidavit dated 2 September 2022, again in relation to counts 17-24, the appellant stated:
50.I believe I raised the existence of these documents with Mr Findley [sic] by telephone because I suspected the AFP was going to raid my house. Mr Findley [sic] otherwise would not have known about these documents.
51.I believed part of the reprisals against me were that if I did not take the redundancy package referred to at paragraph 81 of my affidavit of 6 May 2022, I would be raided and charged.
52.It was during a telephone conversation with Mr Findley [sic] that he advised me to send the documents on the Proton Mail application. I had never used or heard of this application before. This telephone conversation occurred 3-4 days prior to me uploading the documents.
53.I set up an account and understood that the documents would be encrypted when sent.
54.I burned the hard copy material shortly after uploading it on the Proton Mail server.
As discussed earlier, the respondent’s cross-examination on the appellant’s evidence was brief. In the circumstances that was understandable as at that time, the respondent did not possess any information that contradicted the appellant. Under cross-examination, the appellant repeated that he uploaded the documents to his ProtonMail account server on the advice of Mr Findlay. The appellant stated that he set up a ProtonMail account around the time he spoke to Mr Findlay. The appellant stated Mr Findlay had “asked me to, instructed me or directed me to, load that confidential information into a secure and encrypted server”. He said that he had heard of ProtonMail as an encrypted server, but was not sure when he first became aware of it.
The appellant said that Mr Findlay advised him verbally in that conversation “that he would keep the files in that encrypted server, not open them. Not allow anyone to open them and keep them for legal purposes such as an investigation or a court matter”.
Mr Findlay’s evidence
The parties on appeal accepted that in her judgment, the primary Judge succinctly summarised Mr Findlay’s evidence. She stated:
The Respondent called Mr Findlay to give evidence. He gave evidence that he was acting for Mr Boyle in relation to a termination of employment matter and that Mr Boyle ‘had documents between him and the ATO but relating specifically to the termination of employment’. He understood that the purpose of the uploading was for the files to be available, in that Mr Boyle did not know whether he would be able to use his laptop, for example.
Mr Findlay gave evidence that he specifically told Mr Boyle that he would not open the documents. Mr Findlay did not want to get ‘caught out with legal professional privilege issues’ which might arise from seeing the documents; he was asked by Mr Boyle to store the documents for him so they were available if needed. By email on 4 March 2018, Mr Findlay confirmed that the documents had appeared in the ProtonMail box, but he did not intend to open them. Mr Findlay believed Mr Boyle was sending them on his own account and gave Mr Findlay access to that account. Mr Boyle sent other documents to him via regular email for review for legal advice. Mr Findlay was not sure if there were specific discussions on what Mr Boyle would send through to the server.
In cross-examination, Mr Findlay gave evidence that Mr Boyle informed him that he had employment issues with the ATO. He advised that he had been suspended because of Code of Conduct breaches and wanted to be prepared to contest any termination. One of Mr Boyle’s grievances, for which Mr Findlay had been retained, was that the ATO had not investigated his public interest disclosure. Mr Findlay did not have a record of specific conversations with Mr Boyle about the material being sent via ProtonMail. They discussed the importance of saving records that related to the potential for him being suspended or terminated. It was in that context that they had discussions about the material being sent in an encrypted format. Mr Boyle acted in accordance with the advice. The records were to be kept in case they were needed in respect of future legal matters.
(footnotes omitted)
Mr Findlay’s reference to not wanting to get “caught out with legal professional privilege issues” was not explained although, it is clear that he wished to avoid being in possession of the documents.
The evidence of the appellant and Mr Findlay was, in some important respects, somewhat incongruent. For example, in his first affidavit the appellant deposed that Mr Findlay advised him to attach all taxpayer information he had in his possession to the ProtonMail server and that neither he nor anyone else would access the files “save for in legal proceedings related to my public interest disclosure”. Mr Findlay in evidence did not support such an assertion.
Mr Findlay stated that he was retained for a “termination of employment matter”. He said that the discussion about the appellant’s records centred around the potential for the appellant’s employment to be suspended or terminated. The records were to be kept in case they were needed for future (unspecified) legal matters.
Mr Findlay understood that a purpose for uploading the files was so they would be available if the appellant was unable to use his laptop.
Was there a disclosure of information to Mr Findlay?
Turning to the question of whether the s 10(1)(a) immunity applies, a legal practitioner disclosure requires that the disclosure “is made for the purpose of obtaining legal advice, or professional assistance, from the recipient in relation to the discloser having made … a public interest disclosure”.[47]
[47] Public Interest Disclosure Act 2013 (Cth) s 26(1) table item 4, column 3, para (a).
The primary Judge found:
An individual does not make a public interest disclosure unless there is a disclosure of information. Pursuant to s 26 of the PID Act, a public interest disclosure is a disclosure of information which meets the requirements set out in s 26(1)(a) – (c). The word ‘disclosure’ or ‘disclose’ is not defined in the PID Act other than to provide that disclose includes re‑disclose. As set out above at [197], the Macquarie Dictionary definition of ‘disclose’ is ‘to cause to appear; allow to be seen; make known; reveal; to uncover; lay open to review’. Further, s 26(1)(b) requires the recipient of the information to be an Australian legal practitioner. Pursuant to s 8 of the PID Act, a recipient, in relation to a disclosure of information, means the person to whom the information is disclosed.
The evidence was unequivocal. Mr Boyle uploaded the photographs to the ProtonMail server on the clear understanding that Mr Findlay was not to look at them and, in accordance with that understanding, Mr Findlay did not look at them. There was an understanding that the photographed information may be relevant to unspecified future proceedings but that was unknown. There was no disclosure of the photographed information at the time nor, on the evidence, was the information ever disclosed to Mr Findlay. The information contained in the photographs was not made known, revealed, or uncovered. Whilst Mr Findlay had access to the photographs on the server, he was not, and never has been, a recipient of the information in the photographs.
On that basis, I find that Mr Boyle did not make a legal practitioner disclosure on 27 or 28 February or 3 March 2018. I dismiss the application.
(citations and footnotes omitted)
The evidential onus under s 23(1)(a) has little work to do on this issue because, as the primary Judge found, the evidence was unequivocal. There was an agreement between the appellant and Mr Findlay that Mr Findlay was not, at the time he was given access to the ProtonMail server account, to look at the documents.
As the primary Judge found, it is likely that it was the appellant who suggested the use of the ProtonMail server. It was the appellant who set up the account and there was no evidence that Mr Findlay had any control over the ProtonMail server account. The primary Judge was correct in concluding that the evidence established that Mr Findlay had not looked at the contents of the ProtonMail server account and that he would not do so unless authorised by the appellant at some later, and undefined, time. Mr Findlay had, by agreement, not been given access to the documents (or more particularly the information) contained on the ProtonMail server. At best for the appellant, Mr Findlay may have later been given permission by the appellant to access the contents of the ProtonMail server account. It was of course possible that Mr Findlay would never be given authorisation to view the contents or that his potential access to the server be blocked. In my view, it cannot be said on the evidence that, at the time Mr Findlay was given potential access to the documents, there was a disclosure of information potentially engaging the s 10(1)(a) immunity. Even if the evidence raised the possibility under s 23 that the claim was made out, the evidence establishes, on the balance of probabilities, that the claim was not made out.
This finding is sufficient to dismiss Ground 5.
I turn to the second issue. Assuming there was a disclosure, was it for the purpose of obtaining legal advice or professional assistance in relation to him having made a PID?

Starting with the ordinary meaning of the verb “make”, a survey of dictionary definitions suggests it may be used in a range of differing senses. However, of relevance to the present matter, those meanings include meanings which are consistent with the arguments made by each of the parties. Consistently with the appellant’s argument, “make” may mean to construct or create. Consistently with the respondent’s argument, it may also mean to bring about or cause to occur. Predictably, but unhelpfully, the appropriate meaning of the word “make” will often depend upon the context in which it is used, and in particular the noun which is the object of the relevant phrase or sentence. Related to this last observation, “make” is sometimes described as operating as a “light verb”;[71] that is, a verb which has little semantic content of its own, but which forms a predicate with – and takes its meaning from – some additional expression, which is usually a noun. Whilst the appellant’s meaning of “make” (construct or create) perhaps gives the word greater semantic force of its own, the respondent’s meaning (bring about or cause) is more consistent with its use as a light verb.
[71] With other common light verbs being “take”, “give”, “have” and “do”.
Turning to the immediate context in which the verb “make” is used in s 10 of the PID Act, it is used both in describing the precondition to the immunity (“makes a public interest disclosure”) in the chapeau to s 10(1), and in describing the scope of the immunity (“for making the public interest disclosure”) in s 10(1)(a). In both places it is used in combination with the phrase “public interest disclosure”, with the focus being on the noun “disclosure”. As we know from s 26(1), the “disclosure” is a disclosure of information.
When used in combination with a disclosure of information, it seems to me that the word “makes” or “making” more naturally assumes the second of the two meanings I have identified – that is, the respondent’s meaning. It more naturally means giving effect to the disclosure, rather than creating the disclosure. It more naturally refers to the act of communicating the relevant information, rather than the process of preparing the relevant information.
While I accept that there remains some textual uncertainty in the reference to “making” a disclosure in s 10(1)(a), and hence a constructional choice to be made, I consider that the broader contextual and purposive considerations addressed below support my preference for the respondent’s meaning based upon the text of that section.
The first of these contextual considerations lies in the terms of s 26(1) of the PID Act. As set out above, that section uses a derivative of the word “make” in that it refers to the disclosure of information being “made” by a person (the public official discloser), and to a recipient (here, an authorised internal recipient). In the context of this section, and its focus upon the disclosure of information from a discloser to a recipient, the reference to the disclosure being “made” is clearly a reference to it being given effect to, rather than it being created or prepared. It is a reference to the communication of the information disclosed, rather than the collection or preparation of the information disclosed.
This focus upon the act of disclosure or communication of the information, is even more stark in s 28 of the PID Act. In addressing how a public interest disclosure may be “made”, s 28 provides as follows:
28    How a public interest disclosure may be made
(1)    A public interest disclosure may be made orally or in writing.
(2)    A public interest disclosure may be made anonymously.
(3)    A public interest disclosure may be made without the discloser asserting that the disclosure is made for the purposes of this Act.
(4)    …
Plainly the references to the disclosure being made orally or in writing, anonymously, and without assertion of the purpose for which it is made, are references to the communication of the information disclosed, rather than the collection or preparation of the information disclosed.[72]
[72] Reasons at [204].
In my view, the contextual considerations arising from ss 26(1) and 28 provide relatively strong support for the respondent’s meaning, given the close link between s 10 and ss 26 and 28.
Indeed, returning to s 10(1), the precondition to the availability of the immunity is that the individual “makes” a public interest disclosure. It is apparent, and the appellant accepts, that a person is not entitled to the immunity described in s 10(1)(a) unless they have made a disclosure in the sense contemplated by ss 26(1) and 28. A person is not entitled to claim the immunity unless they have communicated information to an appropriate recipient. As the primary judge explained,[73] a person who records or collects information to prepare or formulate a disclosure, but who has not yet communicated that information to a recipient, does not qualify for the immunity. It follows that if the appellant’s alleged criminal conduct had been detected prior to 12 October 2017, and he did not ever communicate his October 2017 PID to an authorised recipient, then no immunity would be available to him in respect of that conduct.
[73] Reasons at [201].
The appellant accepts that this would be so, but seeks to reconcile this with his contended construction of s 10(1). He seeks to do so by arguing that the precondition to the immunity requires that the individual complete the process of making the disclosure by communicating the information, but that once that occurs, then the immunity protects the individual from criminal liability for any conduct reasonably forming part of that process.[74] In my view, this attempted reconciliation of the references to “makes” a disclosure in s 10(1) and “making” a disclosure in s 10(1)(a) is unconvincing. It involves using the words “make” and “making” in different senses, or at least with a different focus, in different parts of the same section. On the other hand, the words are more readily and naturally reconciled if they are both understood as referring to the act of disclosure.
[74] Reasons at [202].
For completeness, I add that I do not accept the HRLC’s contention that the use of the word “for” in describing the immunity (that is, an immunity “for making the public interest disclosure”) provides any basis for construing the word “making” in s 10(1)(a) any more broadly than I have suggested, let alone in a sense differently from which it, and its derivatives, are used elsewhere in the legislation.
The appellant seeks to draw some support for his submission that “making” a disclosure of information for the purposes of s 10(1)(a) is not confined to the act of disclosure from the reference in s 57 to “gives” information:[75]
[75] Subsequently repealed, and replaced by a differently worded form of immunity for witnesses in s 12A.
57 Protection of witnesses etc
(1) A person is not subject to any criminal or civil liability because the person (voluntarily or otherwise) gives information, produces a document or answers a question if:
(a)the person does so when requested to do so by a person conducting a disclosure investigation; and
(b)the information, document or answer is relevant to the investigation.
Note: The first person may be the person whose disclosure gave rise to the disclosure investigation.
The appellant contrasts the use of the word “gives” in s 57(1) with the use of the word “making” in s 10(1)(a). He submits that if the legislature had intended to confine the immunity in s 10(1)(a) to the act of disclosing or communicating the information, then it would have used the expression “giving the public interest disclosure” in s 10(1)(a).
Like the primary judge,[76] I find this an unconvincing contextual indication of the meaning of the reference to “making a public interest disclosure” in s 10(1)(a). The use of the different words “gives” and “making”, despite their similarity in meaning, is readily explained by the different contexts in which they are used. The immunity under s 57(1) contemplates the communication of information in response to a request from a person investigating, whereas the immunity under s 10(1)(a) contemplates the communication of information unilaterally. In the context of the former, the object of the communication is “information”. In the context of the latter, the object of the communication is a “disclosure” of information. These different nouns naturally take different verbs, with it being natural to refer to “making” a disclosure but to “giving” information.
[76] Reasons at [207]-[209].
Purposive considerations
Turning to a consideration of purposive considerations, it is to be accepted that the scope of the s 10(1)(a) immunity must be construed having regard to the objectives of the PID Act. Indeed, s 15AA of the Acts Interpretation Act 1901 (Cth) mandates that the interpretation that would best achieve the purpose or object of the Act (whether or not expressly stated in the Act) is to be preferred to each other interpretation.
The objects of the PID Act are expressly stated in s 6:
6      Objects
The objects of this Act are:
(a)    to promote the integrity and accountability of the Commonwealth public sector; and
(b)    to encourage and facilitate the making of public interest disclosures by public officials and former public officials; and
(c)    to ensure that public officials, and former public officials, who make public interest disclosures are supported and are protected from adverse consequences relating to the disclosures; and
(d)    to ensure that disclosures by public officials, and former public officials, are properly investigated and dealt with.
The appellant contends that, consistently with s 15AA of the Acts Interpretation Act, the provisions of the PID Act, and in particular s 10(1), should be construed as far as possible in a manner that would achieve the above objectives. The appellant focuses in this respect upon a construction which would encourage and facilitate the making of public interest disclosures (s 6(b)), and ensure the support and protection of people who make disclosures (s 6(c)).
The appellant contends that this approach to the construction of s 10(1) is reinforced by the general rule that legislation which is beneficial or remedial should be given a liberal construction. He contends that the word “making” in s 10(1)(a) should be given the widest scope that is consistent with its fair meaning.
I accept, of course, that a purposive approach to the construction of s 10 is appropriate and required. I also accept, as the primary judge did,[77] that s 10, in providing a public official making a public interest disclosure with an immunity from liability, may fairly be described as a remedial or beneficial provision. The PID Act generally, but s 10 in particular, provides protection for individuals who make a public interest disclosure, referred to colloquially as ‘whistle-blowers’.
[77] Reasons at [214]-[216].
However, these general propositions only take the matter so far. It is important not to overstate the significance of these considerations, or to apply them in a blunt way that does not have proper regard to the other textual and contextual indicators of the intended meaning of the relevant provision.
In supporting a construction of the remedial provisions of the legislation under consideration in IW v City of Perth[78] which was “fair, large and liberal”, rather than “literal or technical”, Brennan CJ and McHugh J emphasised that the task nevertheless remains one of statutory construction, and that the words used should not be given a meaning which is unreasonable or unnatural. Similarly, in Victims Compensation Fund Corporation v Brown,[79] Heydon J (with whom McHugh ACJ, Gummow, Kirby and Hayne JJ agreed) explained that “[t]o begin consideration of issues of construction by positing that a ‘liberal’, ‘broad’, or ‘narrow’ construction will be given tends to obscure the essential question, that of determining the meaning the relevant words used require”. In particular, where the focus is upon the meaning of specific words, the circumstance for a liberal construction may not arise. Even where those words are capable of multiple meanings, the context may dictate a particular meaning.[80]
[78] IW v City of Perth (1997) 191 CLR 1 at 12.
[79] Victims Compensation Fund Corporation v Brown (2003) 77 ALJR 1797 at [33]; applied in New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (2016) 260 CLR 232 at [33] (French CJ, Kiefel, Bell and Keane JJ).
[80] New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (2016) 260 CLR 232 at [33]-[34] (French CJ, Kiefel, Bell and Keane JJ).
Further, as Gageler J explained in both New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act[81] and Tjungarrayi v Western Australia,[82] the principle that remedial or beneficial legislation is to be construed beneficially, or liberally, is a manifestation of the more general principle that all legislation is to be construed purposively. Whilst this principle may assist in making constructional choices, it is important not to apply it too simplistically or in an overly zealous manner. It must be borne in mind that legislation rarely pursues its purposes at all costs. Where the issue is not whether it achieves its purposes at all, but rather how far it goes in pursuit of those purposes, the principle may be of limited assistance.
[81] New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (2016) 260 CLR 232 at [91]-[94] (Gageler J).
[82] Tjungarrayi v Western Australia (2019) 269 CLR 150 at [44]-[46] (Gageler J).
In contending that its construction of “making” a public interest disclosure in s 10(1)(a) is supported by a purposive approach, and the remedial nature of the provision, the appellant argues that to adopt the respondent’s construction would be to deny a person who makes a public interest disclosure protection for collecting information or evidence relevant to their disclosure, and hence to discourage whistle-blower activity. It would be to undermine one of the objects of the PID Act, which is to encourage and facilitate the making of public interest disclosures by public officials.
In a general sense, it can be said that the greater the scope of the protection afforded by the immunity under s 10(1)(a), the greater the encouragement of whistle-blowers. However, this is to approach the matter at too general a level, and without proper regard to the words used by the legislature, the context provided by the other objectives and provisions of the PID Act, and the fact that the effect of the immunity is to permit a person to engage in conduct that would otherwise attract civil or criminal liability.
I have already addressed the words used in s 10(1)(a), but in considering these other matters it is important to bear in mind that the immunity in s 10(1)(a) is not the only form of encouragement and protection provided for whistle-blowers in the PID Act. Part 2 of that Act contains a suite of provisions providing whistle-blowers with protection not only from civil, administrative and criminal liability, but also from reprisals and from being identified. It is also important to bear in mind that one of the objects of the PID Act is to promote the integrity and accountability of the Commonwealth public sector (s 6(a)). As the respondent submits, pursuit of this objective would include not only encouraging the disclosure of wrongdoing but also encouraging adherence to the standards set by criminal, civil and administrative law. As the effect of the immunity in s 10(1)(a) is to permit conduct in breach of these standards, construing the immunity too broadly would tend to undermine pursuit of the objective in s 6(a). In summary, pursuit of the various objectives in s 6 may be seen as involving a range of mechanisms, designed to strike an appropriate balance between the protection of public officials making public interest disclosures, and the protection of the community through encouraging not only the disclosure of wrongdoing but also the adherence to the standards set by criminal, civil and administrative laws.
Bearing these considerations in mind, it should not be assumed that the legislature intended to encourage all conduct or activity by a person who ends up making a public interest disclosure. To the contrary, it can be assumed that the legislature would have been conscious of the need to ensure a balance between encouraging appropriate disclosure and not unduly interfering with the ordinary scope of criminal and civil liability. The words chosen in s 10(1)(a) should be understood and construed as reflecting a balance, and should not be construed simplistically with an assumption that they should be given the broadest meaning they can bear.
Moreover, as the primary judge explained,[83] there is a difficulty with, or circularity in, the premise underpinning this aspect of the appellant’s argument. The appellant’s argument tends to assume that the PID Act, and the protection afforded by s 10(1)(a), is intended to encourage and facilitate a public official engaging in conduct prior to disclosure, as opposed to encouraging and facilitating merely the disclosure of information to an authorised recipient. In other words, it tends to assume the breadth of intended protection that it contends for.
[83] Reasons at [217]-[221].
Consideration of the broader scheme of the PID Act does not support an intention to encourage and facilitate such conduct by the discloser or whistle-blower. While the Act does not contain any provisions that expressly prohibit any recording or collecting of information or evidence by a person intending to make a disclosure, nor does it contain any provisions which expressly endorse, or otherwise encourage or facilitate such conduct.
It is noteworthy in this context that the PID Act does expressly address the investigation of disclosable conduct in Part 3 (“Investigations”). However, it makes it clear that the investigation is to be undertaken after the disclosure has been made, and by the “principal officer” of the agency to which disclosure is allocated under the procedure contemplated by the Act, rather than by the person making the disclosure. The PID Act appears to contemplate that the whistle-blower’s role will be confined to making a disclosure, and responding to any requests for further information that the investigator might have. It does not contemplate the whistle-blower having any investigative role of their own.[84]
[84] Reasons at [223], [227].
I have already mentioned s 57(1) of the PID Act. The appellant contends that this section, in combination with s 48(1)(i)(ii), supports an inference that the legislature intended, or contemplated, that the proposed whistle-blower be permitted to take steps to collect and record information and evidence prior to making their disclosure. This implication is said to be supported by the fact that s 57(1) contemplates that the public officer undertaking an investigation of the disclosure may seek information from the whistle-blower, and that, under s 48(1)(i)(ii), the public officer may decide not to proceed with the investigation if it becomes impractical by reason of the whistle-blower refusing, failing or being unable to provide the information or assistance sought from them.
I do not consider that these sections support the implication contended for.[85] Whilst they support a contemplation that a whistle-blower may well have information, and access to information, beyond that which has been included in their disclosure, there is no reason to think that the legislature contemplated that this would be information obtained through some investigation by the whistle-blower, as opposed to information that they may have, or have access to, through the ordinary course of their employment.
[85] Reasons at [222]-[223].

The fact that the PID Act does not contemplate any investigation by the whistle-blower, and provides a fairly prescriptive regime for some other appropriate person to undertake the contemplated investigation after the disclosure has occurred, tends to undermine the appellant’s submission that the PID Act should be construed as encouraging or facilitating conduct akin to an investigation by the whistle-blower prior to them making a disclosure.
The appellant and the HRLC seek to counter this line of reasoning by arguing that, even if the protection is focussed upon the ultimate disclosure, whistle-blowers might be reluctant to make a disclosure unless they are in a position to record and collect information to support their allegations. The putative whistle-blower might fear that they will not be considered to have reasonable grounds for their belief as to the existence of disclosable conduct, which is a requirement of both an internal and external disclosure,[86] and hence be denied any immunity. They might also apprehend that their complaint will not be taken seriously if they are not able to support it with some detail and evidence. An ability to record and collect information without risk of civil or criminal liability, rather than having to rely upon their memory in making their disclosure, may also facilitate their making of a public interest disclosure, particularly where the information to be disclosed is voluminous, detailed or complex.
[86] PID Act, Column 3 of Items 1 (internal disclosure) and 2 (external disclosure) of the table which follows s 26(1).
The HRLC focusses in this context on the ability of whistle-blowers to make an effective external disclosure (which must satisfy various requirements, including that it only occur where there has been an internal disclosure which the discloser believes on reasonable grounds has not resulted in an adequate or timely investigation, and that it not be contrary to the public interest). The HRLC argues that external disclosures are most likely to be made to journalists or politicians, and that such recipients are unlikely to be able or willing to take any action without detail and evidence to support the information disclosed.
In summary, the appellant and HRLC argue that the court should lean towards a construction which would encourage disclosures by permitting whistle-blowers to record and collect information and evidence, and hence give them greater confidence that their disclosure will be protected and effective.
For several reasons, I do not attach much weight to this elaboration of the purposive approach contended for by the appellant and the HRLC. First, the threshold requirements for protection as an internal disclosure are quite low, and are unlikely to require much by way of supporting detail or evidence. A disclosure is not required to meet any requirements of form; s 28 makes it plain that the disclosure may be made not only in writing but also orally, and need not include any reference to the PID Act.
Secondly, s 26(1) requires merely that the discloser “believes on reasonable grounds that the information tends to show, one or more instances of disclosable conduct”. In other words, the discloser need only have a reasonable belief in the probative value of the information disclosed, and need not have a reasonable belief that disclosable conduct has necessarily occurred. Certainly the information in the disclosure does not need to establish that the disclosable conduct has occurred. It follows that it will not generally be necessary for the whistle-blower to include much detail in their disclosure. However, it is also to be borne in mind that to the extent that the whistle-blower has lawful access to voluminous, detailed or complex information in the course of their employment, they will be free to draw on that information in preparing their disclosure. It is just that, on the respondent’s construction, they will not be empowered to engage in criminal activity so as to collect or record that information. Any further investigation required to determine whether the misconduct occurred will be undertaken after the disclosure and by someone else.
Thirdly, the relatively detailed and prescriptive regime for investigation following a disclosure should give a whistle-blower confidence that, ordinarily, there will be a proper investigation of the matters disclosed, with the investigator having significant powers to obtain the information and evidence necessary to properly assess the matter.
Fourthly, whilst the legislature was prepared to contemplate the appropriateness of making external disclosures in certain circumstances (including to journalists and politicians), I am not persuaded that the legislature should be taken to have intended to ensure that these disclosures would be effective by not only permitting that the disclosures themselves be made with immunity from liability, but also by enabling the whistle-blower to engage in criminal activity so as to make sure they have enough supporting information and evidence to attract the interest of a journalist or politician.
In summary, while accepting the appropriateness of a purposive approach, and mindful of the remedial nature of the immunity provided for under s 10(1)(a), I do not think the matters advanced by the appellant and the HRLC provide a basis for favouring the appellant’s construction of the reference to “making” a disclosure. In my view, the respondent’s construction, accepted by the primary judge, is consistent with the purpose and remedial nature of the immunity provided for under s 10(1)(a).
By protecting the act of disclosure, s 10(1)(a) enables a whistle-blower to make a disclosure free from any concern with civil or criminal liability. In preparing that disclosure they may make use of whatever information they may lawfully have come across in the course of their employment, and once the disclosure is made, the allegations of disclosable conduct it includes will be investigated. I do not consider that a whistle-blower needs an ability to conduct their own investigation (or to otherwise record and collect information and evidence) free from any civil or criminal liability for the whistle-blower regime contemplated by the PID Act to operate effectively.
Moreover, there is every reason to think that the legislature would have been reluctant to permit, much less encourage, any more criminal conduct than might be necessary to support an effective regime for public interest disclosures to be made. There is likewise every reason to think that the legislature would have considered that an immunity that protects a public official from criminal or civil liability when disclosing information, without at the same time permitting them to engage in criminal acts in pursuit of an investigation of the matters disclosed, represents an appropriate balancing of the competing objectives and considerations addressed above.
Requirement of reasonableness
Apparently in response to the concern that his construction of the immunity might permit wide-ranging, and potentially egregious, criminal conduct by whistle-blowers, the appellant sought to limit the scope for such conduct by submitting that the s 10(1)(a) immunity should be read as (implicitly) confined to an immunity for conduct which “reasonably” forms part of the process of making a public interest disclosure. The appellant submits that this concept of reasonableness involves a consideration of not only whether the public official’s conduct formed part of the process of making the disclosure, but also whether it was reasonable in that context, having regard to the seriousness of the disclosable conduct and the gravity of the public official’s conduct.
Like the primary judge,[87] I am not satisfied that there is any basis for construing s 10(1)(a) as subject to this limitation, or that it would assist in achieving the purpose or objects of the PID Act. As to the former, there is nothing in the text or context of s 10(1)(a) which provides any basis for implying this limitation upon the immunity. As to the latter, whilst it might operate to reduce the scope for egregious criminal conduct by a public official prior to making a disclosure, it would introduce a degree of uncertainty as to the scope of the immunity. Not only is it unlikely that the legislature would have intended to introduce an immunity of uncertain scope, but also the existence of this uncertainty might undermine the capacity for the immunity to encourage public officials to make disclosures. While the putative whistle-blower might be encouraged by knowing that they have some ability to engage in some investigative-type conduct that would otherwise attract criminal liability, they might remain reluctant to record or collect information or evidence for fear that their conduct might not meet the requirement of reasonableness.
[87] Reasons at [230]-[233].
The HRLC contended for a narrower extension of the immunity beyond the act of disclosure, namely that it extends to conduct which is “reasonably necessary” for the disclosure. In support of this implicit limitation upon the immunity, the HRLC relied, by way of analogy, upon authorities which treat a conferral of power as a conferral of power to do all things reasonably necessary to give effect to the exercise of power.[88] The HRLC argues that, because the s 10(1)(a) immunity is, in effect, a power to make a disclosure free from any criminal or civil liability, it should be construed as a power to do all things reasonably necessary to give effect to that disclosure free from any criminal or civil liability.
[88] Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2018) 262 CLR 157 at [40] (Kiefel CJ), [52] (Gageler J), [114]-[115], [118] (Keane, Nettle and Gordon JJ).
Again, I am not persuaded that there is a proper basis for construing s 10(1)(a) as extending to acts “reasonably necessary” for making the public interest disclosure. In addition to the absence of any apparent need or basis for implying those words, the fact that the legislature expressly included these words when describing the requirements of an external disclosure,[89] yet did not do so in the related context of describing the breadth of the immunity, tends against the implication contended for.
[89] PID Act, s 26(1), item 2, column 3, para (f).
In any event, insofar as the implication of those words might be understood merely as ensuring that all aspects of the disclosure itself are covered by the immunity, they are unnecessary and would, in any event, not assist the appellant in the present case. And insofar as they might be understood as extending beyond the act of disclosure to anterior conduct such as collecting and recording information and evidence, then they would give rise to similar difficulties as those associated with the construction contended for by the appellant.
Conclusion
For the reasons given, the immunity for “making” a public interest disclosure under s 10(1)(a) of the PID Act is confined to an immunity for the act of disclosing information in accordance with that section. The primary judge was correct to hold that the immunity does not extend to the appellant’s conduct in recording and collecting information that is the subject of counts 1-6 and 8-15.
Ground 3 has not been made out.
Ground 4: conduct reasonably forming part of the process of preparing the disclosure
Ground 4 involves a challenge to the primary judge’s finding that, even if the immunity were to be construed as extending to acts reasonably forming part of the process of preparing the disclosure, the appellant’s conduct the subject of Counts 1-6 and 8-15 fell outside the scope of the immunity.
In circumstances where I have rejected the appellant’s challenge to the breadth of the immunity under Ground 3, it is not strictly necessary to deal with this ground. Indeed, there is a difficulty in doing so in that, having rejected the submission that the immunity in s 10(1)(a) extends beyond the act of disclosure, it is somewhat artificial to attempt to address in any detail the precise metes and bounds of the immunity contended for by the appellant. It would also be somewhat artificial to attempt to identify the extent to which the appellant’s formulation of the immunity (that is, conduct which reasonably forms part of the process of making a public interest disclosure) extends beyond the HRLC’s formulation of the immunity (that is, conduct which is reasonably necessary for making the public interest disclosure).
That said, I agree generally with Lovell JA’s reasons for rejecting this ground. In particular, I agree that the primary judge did not err in having regard to other lawful steps that were available to obtain the information collected and recorded by the appellant. I also agree that the primary judge did not err in having regard to the fact that various aspects of the information collected and recorded did not directly reveal any disclosable conduct. These matters were relevant in the primary judge’s assessment of the connection between the steps taken and the nature and content of the disclosure ultimately made. Having regard to the limited connection in time, necessity and purpose between the appellant’s charged conduct and the disclosure made, in the context of the primary judge’s detailed findings as a whole, I agree with Lovell JA that the appellant has not demonstrated error in the primary judge’s conclusion that the appellant’s charged conduct fell outside the immunity. While her Honour was addressing the appellant’s construction of the immunity, her conclusion would apply a fortiori to the HRLC’s construction of the immunity.
Ground 5: legal practitioner disclosure
I agree with the reasons of Lovell JA in relation to this ground, and have nothing to add.
Conclusion
For the reasons given, I agree with Lovell JA that the appeal should be dismissed.
DAVID JA: I agree that the appeal should be dismissed. In relation to Grounds 1 and 2, I agree with the reasons of Doyle JA. In relation to Grounds 3, 4 and 5, I agree with the reasons of Lovell JA, and have nothing to add.