Express Law No. 316

Implications

The Federal Court’s decision practically illustrates how the Privileges Act can affect proceedings under the PID Act that relate to parliamentary business.

More generally, the decision confirms that Commonwealth legislation will not limit the scope or application of parliamentary privilege unless expressly directed to that end.

Background

The appellant sought relief under ss 14 and 15 of the PID Act for reprisal action allegedly taken against them. The reprisal action was allegedly taken in response to a letter from the appellant claiming that answers to questions on notice at Senate Estimates were untrue and misleading.

The appellant alleged that the letter was a public interest disclosure for the purposes of the PID Act. However, as the letter made allegations about ‘proceedings in Parliament’ (being the answers provided to the relevant Senate committee), a question arose as to whether s 16(3) precluded the letter being adduced in evidence.

The primary judge struck out the parts of the pleading that were based on the contention that the appellant’s letter was a public interest disclosure, and summarily dismissed the claims made in those parts of the pleading: BDR21 v Australian Broadcasting Corporation [2021] FCA 960.   

The decision on appeal

The Full Court upheld the decision of the primary judge to strike out the relevant parts of the pleading and to summarily dismiss the claim made in them. 

The parties had agreed that responses to questions asked at Senate Estimates constituted ‘proceedings in Parliament’ within the meaning of s 16(2) of the Privileges Act. The principal dispute between the parties was whether the Privileges Act precluded the letter being adduced in evidence, or whether s 24 of the PID Act had effectively displaced the application of the Privileges Act to claims under the PID Act. Section 24 of the PID Act relevantly provides that the protections in the PID Act have effect ‘despite any other provision of a law of the Commonwealth’.

That raised a more general issue as to the continuing effect of s 49 of the Constitution on what is required to alter the law governing parliamentary privilege ([60]).

‘Declaration’ is required for Commonwealth legislation to exclude Privileges Act

The Full Court held that a law will only have the effect of excluding or altering s 16(3) of the Privileges Act if it is expressly directed to the operation of parliamentary privilege ([91]). That is because s 49 of the Constitution continues to operate according to its terms, even after the enactment of the Privileges Act. As a result, the privileges of Parliament can only be altered by a further ‘declaration’ under s 49 ([91]). Section 24 of the PID Act, which made no reference to parliamentary privilege, did not amount to a declaration of the requisite kind and therefore could not affect the operation of s 16(3) of the Privileges Act.

There is no conflict between s 16(3) of the Privileges Act and s 24 of the PID Act

In any event, the Court held that there is no conflict between s 16(3) of the Privileges Act and s 24 of the PID Act ([15]). The Full Court construed s 24 as having a narrow operation focussed on protecting the operation of ss 10 and 14 to 16 from other Commonwealth laws. Section 10 provides for an immunity from liability for an individual who makes a public interest disclosure, and ss 14–16 deal with remedies available to an individual against whom reprisal action is taken. However, s 16(3) of the Privileges Act does not impose any liability or bar any remedy contrary to these provisions. Section 16(3) governs how court or tribunal proceedings are to be conducted. Practically, it may prevent a person from establishing that they are entitled to an immunity or remedy, but it does not conflict with ss 10 and 14 to 16 of the PID Act at the point at which they are actually engaged ([99]).

Primary judge did not err in strike out or summary dismissal

The Full Court held that in the circumstances, summary judgment was appropriate. The cause of action which was struck out and dismissed would have relied upon on ‘unavoidable breach’ of s 16(3) of the Privileges Act ([124]). On 3 August 2023 the Full Court made orders by consent giving effect to its decision of 29 June 2023.

Text of the decision is available at: BDR21 v Australian Broadcasting Corporation.

AGS acted as solicitor for the respondent.