RICHARD DAVID BOYLE v DIRECTOR OF PUBLIC PROSECUTIONS (CTH) [2024] SASCA 73

On Appeal from DISTRICT COURT OF SOUTH AUSTRALIA (HER HONOUR JUDGE KUDELKA) CIV-22-005551 Appellant: RICHARD DAVID BOYLE Counsel: MR S MILLSTEED KC WITH MS L GAVRANICH - Solicitor: BARBARO THILTHORPE LAWYERS Respondent: DIRECTOR OF PUBLIC PROSECUTIONS (CTH) Counsel: MR N ROBINSON KC WITH MR S GINSBOURG - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (CTH) Interested Party: THE HUMAN RIGHTS LAW CENTRE LIMITED Counsel: MR P HERZFELD SC WITH MS H RYAN - Solicitor: JOHNSON WINTER SLATTERY Hearing Date/s: 09/08/2023 File No/s: CIV-23-004375 A SUPREME COURT OF SOUTH AUSTRALIA (Court of Appeal: Civil) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. 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. -- 1 of 51 -- 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) -- 2 of 51 -- 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. -- 3 of 51 -- -- 4 of 51 -- BOYLE v DIRECTOR OF PUBLIC PROSECUTIONS (CTH) [2024] SASCA 73 Court of Appeal – Civil: Lovell, Doyle and David JJA 1 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 Act 2013 (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. 2 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 3 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. 4 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. 5 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. 6 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”. -- 5 of 51 -- [2024] SASCA 73 Lovell JA 2 7 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. 8 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. 9 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. 10 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. 11 [SUPPRESSED]. 12 [SUPPRESSED]. 13 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. 14 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 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). -- 6 of 51 -- [2024] SASCA 73 Lovell JA 3 • Uploading photographs of taxpayer information to a ProtonMail server of Mr Findlay (federal offences - counts 16-24).3 15 It is common ground that count 7 is not relevant to this appeal. 16 [SUPPRESSED]. 17 [SUPPRESSED]. 18 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. 19 [SUPPRESSED]. 20 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 21 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. 22 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. 23 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 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). -- 7 of 51 -- [2024] SASCA 73 Lovell JA 4 disclosure and his legal practitioner disclosure did not attract the immunity under s 10(1)(a) and dismissed the application. 24 The appellant appeals that decision. Grounds of appeal 25 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 -- 8 of 51 -- [2024] SASCA 73 Lovell JA 5 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) 26 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”. 27 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. 28 Section 74 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 29 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 30 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. 31 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. 32 Section 26 relevantly states: 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). 7 Public Interest Disclosure Act 2013 (Cth) s 7(1)(b). -- 9 of 51 -- [2024] SASCA 73 Lovell JA 6 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: … 33 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. 34 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). 35 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. -- 10 of 51 -- [2024] SASCA 73 Lovell JA 7 Protection of disclosers 36 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. 37 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 … 38 That is, an individual who makes a PID is immune from criminal liability for making the PID. 39 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 Investigation of disclosures 40 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 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. 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). -- 11 of 51 -- [2024] SASCA 73 Lovell JA 8 41 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 42 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. Ground 3 43 This ground of appeal raises the issue of the construction of s 10(1)(a) of the Act. Appellant’s submissions 44 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. 45 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. 46 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 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). 21 It was repealed and replaced by s 12A. 22 Macquarie Dictionary (online at 15 May 2024) ‘making’ (def 1). 23 Macquarie Dictionary (online at 15 May 2024) ‘making’ (def 2). 24 Day & Dent Constructions Pty Ltd (In Liq) v North Australian Properties Pty Ltd (1982) 150 CLR 85. -- 12 of 51 -- [2024] SASCA 73 Lovell JA 9 47 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) 48 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. 49 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. 50 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. 51 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 25 (1997) 191 CLR 1, 12 (Brennan CJ and McHugh J). 26 [2009] NSWSC 538. 27 Howell v O’Brien [2009] NSWSC 538 at [78]. 28 Public Interest Disclosure Act 2013 (Cth) s 47. 29 Public Interest Disclosure Act 2013 (Cth) s 48(1)(i)(ii). -- 13 of 51 -- [2024] SASCA 73 Lovell JA 10 52 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. 53 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. 54 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 55 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 56 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. 30 Public Interest Disclosure Act 2013 (Cth) s 53(2). 31 Subsequently repealed and replaced by s 12A. 32 Public Interest Disclosure Act 2013 (Cth) s 6. -- 14 of 51 -- [2024] SASCA 73 Lovell JA 11 57 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. 58 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. 59 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. 60 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. 61 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. 62 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. 63 The HRLC relied on three matters relating to the structure and features of the Act which it submitted supported a wider construction. 64 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. 65 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 -- 15 of 51 -- [2024] SASCA 73 Lovell JA 12 or Member of Parliament who would be reluctant, without supporting evidence, to take the matter further. 66 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) 67 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. 68 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 69 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. 70 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. -- 16 of 51 -- [2024] SASCA 73 Lovell JA 13 71 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. 72 The respondent pointed to various factors which it submitted supported such an interpretation. 73 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. 74 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. 75 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. 76 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 33 Public Interest Disclosure Act 2013 (Cth) s 26(1), table item 2, column 3, para (f). 34 Public Interest Disclosure Act 2013 (Cth) s 26(1), table item 1, column 3 and item 2, column 3, para (a). 35 ADCO Constructions Pty Ltd v Goudappel (2014) 254 CLR 1 at [29] (French CJ, Crennan, Kiefel and Keane JJ). -- 17 of 51 -- [2024] SASCA 73 Lovell JA 14 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. 77 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. 78 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. 79 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 80 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 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). -- 18 of 51 -- [2024] SASCA 73 Lovell JA 15 also reject the HRLC submission that the immunity extends to conduct “reasonably necessary” for making the disclosure. 81 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 82 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. 83 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 84 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 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). 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). 42 ADCO Constructions Pty Ltd v Goudappel (2014) 254 CLR 1 at [29] (French CJ, Crennan, Kiefel and Keane JJ). -- 19 of 51 -- [2024] SASCA 73 Lovell JA 16 is, for example, to make a cake. Alternatively, as the respondent argued, it can mean to cause or bring about a particular result. 85 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 86 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. 87 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. 88 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. 89 In particular, the legislature’s use of the phrase “reasonably necessary” in the definition of external disclosure44 strongly indicates that it was not intended that the phrase, or some similar phrase, should be read into s 10(1)(a). 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. 44 Public Interest Disclosure Act 2013 (Cth) s 26(1), table item 2, column 3, para (f). -- 20 of 51 -- [2024] SASCA 73 Lovell JA 17 90 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. 91 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. 92 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. 93 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. 94 I would dismiss Ground 3. Ground 4 95 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. 96 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. 97 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. 98 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 -- 21 of 51 -- [2024] SASCA 73 Lovell JA 18 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. 99 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. 100 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. 101 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. 102 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. -- 22 of 51 -- [2024] SASCA 73 Lovell JA 19 103 [SUPPRESSED]. 104 [SUPPRESSED]. 105 [SUPPRESSED]. 106 [SUPPRESSED]. 107 [SUPPRESSED]. 108 [SUPPRESSED]. 109 No error has been disclosed and I would dismiss Ground 4. Ground 5 110 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). 111 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. 112 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 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. 46 Public Interest Disclosure Act 2013 (Cth) s 26(1) table item 4, column 3, para (a)-(c). -- 23 of 51 -- [2024] SASCA 73 Lovell JA 20 (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. 113 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. 114 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”. 115 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. 116 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”. 117 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. 118 If either proposition is established the appellant must fail in his application for an immunity. The evidence 119 [SUPPRESSED]. 120 [SUPPRESSED]. 121 [SUPPRESSED]. -- 24 of 51 -- [2024] SASCA 73 Lovell JA 21 122 [SUPPRESSED]. 123 [SUPPRESSED]. 124 [SUPPRESSED]. 125 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). 126 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 127 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. 128 [SUPPRESSED]. 129 [SUPPRESSED]. 130 [SUPPRESSED]. 131 [SUPPRESSED]. Mr Findlay’s evidence 132 [SUPPRESSED]. 133 [SUPPRESSED]. 134 [SUPPRESSED]. 135 [SUPPRESSED]. 136 [SUPPRESSED]. Was there a disclosure of information to Mr Findlay? 137 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 -- 25 of 51 -- [2024] SASCA 73 Lovell JA 22 obtaining legal advice, or professional assistance, from the recipient in relation to the discloser having made … a public interest disclosure”.47 138 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) 139 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. 140 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 47 Public Interest Disclosure Act 2013 (Cth) s 26(1) table item 4, column 3, para (a). -- 26 of 51 -- [2024] SASCA 73 Lovell JA 23 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. 141 This finding is sufficient to dismiss Ground 5. 142 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? 143 The primary Judge found that the appellant had not discharged his evidential onus under s 23(1)(a) to adduce or point to evidence that suggests a reasonable possibility that the claim for an immunity is made out. The appellant submitted that the primary Judge erred in that finding as the evidence established, at least as a reasonable possibility, that the disclosure was made for the purpose of obtaining legal advice or professional assistance in relation to him having made a PID. 144 [SUPPRESSED]. 145 The primary Judge confined her remarks to the question of whether the appellant discharged the evidential onus pursuant to s 23(1)(a); she did not specifically consider the onus, nor was she required to given her findings, cast on the respondent under s 23(1)(b). 146 [SUPPRESSED]. 147 [SUPPRESSED]. 148 [SUPPRESSED]. 149 [SUPPRESSED]. 150 [SUPPRESSED]. 151 I would dismiss Ground 5. Order 152 Appeal dismissed. 153 DOYLE JA: The appellant is charged on a single information, filed in the District Court of South Australia by the respondent Commonwealth Director of Public Prosecutions, with 17 offences under the Taxation Administration Act 1953 (Cth) (‘the Commonwealth offences’) and seven offences under the Listening and Surveillance Devices Act 1972 (SA) (‘the State offences’). 154 The appellant was arraigned in the District Court on 11 September 2020, and pleaded not guilty to all charges. He subsequently made a claim in that Court that -- 27 of 51 -- [2024] SASCA 73 Doyle JA 24 he was immune from criminal liability pursuant to s 10(1)(a) of the Public Interest Disclosure Act 2013 (Cth) (‘the PID Act’). 155 The appellant’s claim for immunity was dismissed by the primary judge. In this appeal from that decision, the appellant relies upon five grounds of appeal. 156 Grounds 1 and 2 concern the nature of the Court’s jurisdiction, and standard of the respondent’s persuasive onus, in determining the appellant’s claim for immunity. The appellant contends that the primary judge erred in holding that determination of his claim for immunity involved civil proceedings in which the respondent bore the typical civil onus of negating the claim on the balance of probabilities. On the appellant’s argument, the immunity proceedings were criminal in nature and the respondent bore the typical criminal onus of negating the claim beyond reasonable doubt. 157 In Ground 3 the appellant contends that the primary judge erred in construing the immunity under s 10(1)(a) of the PID Act, and in particular the words “making the public interest disclosure”, as confined to the act of disclosing and hence not extending to conduct in the process of preparing or creating the disclosure (including the recording and collection of information and evidence relating to the disclosure). 158 In Ground 4 the appellant challenges the primary judge’s finding that, even if the immunity were 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. 159 Ground 5 involves a complaint that the primary judge erred in holding that the appellant’s conduct the subject of counts 16-24 did not constitute a legal practitioner disclosure as defined in s 26(1) of the PID Act. 160 The Human Rights Law Centre (‘the HRLC’) was given leave to make submissions addressing the issue as to the construction of s 10(1)(a) of the PID Act arising under Ground 3. The HRLC’s submissions were consistent with those advanced by the appellant on this issue, save that it contended for a narrower construction of s 10(1)(a). Whereas the appellant contends that the immunity under s 10(1)(a) extends to conduct anterior to the act of disclosure which reasonably formed part of the process of preparing or creating the disclosure, the HRLC contends that it extends only to conduct which was reasonably necessary for the disclosure. 161 I have had the advantage of reading a draft of Lovell JA’s reasons in relation to Grounds 3, 4 and 5. I agree with his Honour that the appeal should be dismissed. I agree generally with the reasons given by his Honour in relation to those grounds, but propose to set out my own reasons for rejecting Grounds 1, 2 and 3. In so doing, I gratefully adopt Lovell JA’s summary of the background to these -- 28 of 51 -- [2024] SASCA 73 Doyle JA 25 proceedings and the provisions of the PID Act, and will attempt to confine any repetition to what is necessary to set out my reasoning. 162 Before turning to address the individual grounds of appeal, I wish to emphasise the opening observations in the reasons of Lovell JA. As his Honour explains, it is accepted that the appellant is a whistle-blower who was entitled to an immunity from liability under s 10(1)(a) in respect of the public interest disclosure he made on 12 October 2017 (‘the October 2017 PID’). The issues arising in this appeal concern only the extent of the protection afforded by that immunity, and in particular whether it extends to the appellant’s conduct in collecting and recording information and evidence to support his disclosure. 163 The essence of the appellant’s argument, supported by the HRLC, is that the immunity should extend to such conduct because otherwise the ability to make the public interest disclosures contemplated by the PID Act would be severely hampered. The respondent, on the other hand, contends that to construe the immunity as extending this far would be to construe the legislation as permitting a putative whistle-blower to undertake an investigation of their concerns free from civil or criminal liability, whereas the regime provided for by the PID Act should be understood as contemplating that a whistle-blower be entitled to make a protected disclosure to an authorised person who will then undertake an investigation. In other words, the balance struck by the PID Act contemplates an immunity from any criminal liability in respect of disclosing information which might come to a person’s attention during the course of their work, but does not extend to permitting that person to commit criminal offences in collecting or recording information in support of, or otherwise investigating, that disclosure. 164 For the reasons to be given, the respondent’s construction of s 10(1)(a) is to be preferred. Grounds 1 & 2: jurisdiction and onus 165 As elaborated upon below, Grounds 1 and 2 involve a challenge to the primary judge’s holdings as to the nature of the Court’s jurisdiction, and the respondent’s persuasive onus, in determining the appellant’s claim for immunity from liability under s 10(1)(a) of the PID Act. 166 By way of introduction to the issues raised by these grounds, the appellant’s claim for immunity fell to be determined in accordance with s 23 of the PID Act: 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: -- 29 of 51 -- [2024] SASCA 73 Doyle JA 26 (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 (c) the court must deal with the claim in separate proceedings; and (d) the court must adjourn the primary proceedings until the claim has been dealt with; and (e) none of the following: (i) any admission made by the individual in the separate proceedings; (ii) any information given by the individual in the separate proceedings; (iii) any other evidence adduced by the individual in the separate proceedings; is admissible in evidence against the individual except in proceedings in respect of the falsity of the admission, information or evidence; and (f) if the individual or another person gives evidence in the separate proceedings in support of the claim – giving that evidence does not amount to a waiver of privilege for the purposes of the primary proceedings or any other proceedings. 167 In summary, when an individual makes a claim for immunity in civil or criminal proceedings (“the primary proceedings”), the claim for immunity must be dealt with by the court in “separate proceedings” (s 23(1)(c)), and the primary proceedings must be adjourned until that claim has been determined (s 23(1)(d)). In determining the claim for immunity, the individual bears the (evidential) onus of adducing or pointing to evidence that suggests a reasonable possibility that the claim is made out (s 23(1)(a)). If the individual discharges that (evidential) onus, then the party instituting the primary proceeding – in this case, the respondent prosecution – bears the (persuasive) onus of proving that the claim is not made out (s 23(1)(b)). 168 The primary judge held, and the parties agree, that the appellant’s evidential onus under s 23(1)(a) of the PID Act was akin to the evidential onus provided for in s 13.3(6) of the Criminal Code (Cth).48 As explained in R v Khazaal,49 the onus of “adducing or pointing to evidence that suggests a reasonable possibility” that the claim for immunity is made out reflects the general law approach to the evidential onus. It requires evidence that is capable of supporting the possibility that each element of the claim for immunity is made out.50 It is not a high standard. 48 Boyle v Commonwealth Director of Public Prosecutions [2023] SADC 27 (‘Reasons’) at [10]; referring to the Criminal Code, which is Schedule 1 to the Criminal Code Act 1995 (Cth). 49 R v Khazaal (2012) 246 CLR 601. 50 R v Khazaal (2012) 246 CLR 601 at [19] (French CJ). -- 30 of 51 -- [2024] SASCA 73 Doyle JA 27 It involves taking the evidence at its most favourable to the party bearing the onus, and may be discharged by relatively “slender” evidence.51 169 However, the parties are not agreed as to the nature or standard of the persuasive onus on the respondent prosecution under s 23(1)(b) of the PID Act, in the event that the appellant discharged his evidential onus. The appellant contends that the respondent bore the persuasive onus of proving beyond reasonable doubt that the claim for immunity was not made out. The respondent contends that it bore the persuasive onus of proving on the balance of probabilities that the claim for immunity was not made out. The former is, of course, the standard of proof typically applicable in criminal proceedings. The latter is the standard of proof typically applicable in civil proceedings. 170 In upholding the respondent’s contention, the primary judge commenced by characterising the separate proceedings under s 23(1)(c) as civil proceedings, and then reasoned from this that the persuasive onus on the respondent under s 23(1)(b) was the civil standard of the balance of probabilities. 171 The appellant challenges both steps in this reasoning. 172 In Ground 1, the appellant contends that the primary judge erred in holding that, in determining the appellant’s claim for immunity, her Honour was exercising the District Court’s civil jurisdiction. On the appellant’s argument, her Honour was exercising the Court’s criminal jurisdiction conferred under s 68(2) of the Judiciary Act 1903 (Cth) and s 9(4) of the District Court Act 1991 (SA). Whilst the claim for immunity was required to be determined in separate proceedings, it nevertheless remained an aspect of the exercise of the Court’s criminal jurisdiction in respect of the charges the subject of the primary proceedings. 173 In Ground 2, the appellant contends that the primary judge further erred in holding that, if the appellant discharged his evidentiary onus under s 23(1)(a) of the PID Act, the standard of the respondent’s persuasive onus under s 23(1)(b) was the civil standard of the balance of probabilities. On the appellant’s argument, the standard of the respondent’s persuasive onus was the criminal standard of beyond reasonable doubt. That was so both because the proceedings took their (criminal) character from the primary proceedings and, in any event, because that was the proper construction of s 23(1)(b) having regard to the protective purposes of the PID Act. 174 The starting point in addressing the District Court’s exercise of federal jurisdiction in these proceedings is that, under ss 71 and 77(iii) of the Constitution, the Commonwealth Parliament is empowered to make laws conferring federal jurisdiction upon the State courts. Pursuant to this legislative power, the State 51 R v Khazaal (2012) 246 CLR 601 at [19] (French CJ), [74] (Gummow, Crennan and Bell JJ); see also the discussion of the common law evidential onus applicable to criminal defences in Dudley v Department of Primary Industries and Regions South Australia [2018] SASCFC 23 at [73] (the Court) and Dietman v Karpany (2023) 377 FLR 307 at [41] (the Court). -- 31 of 51 -- [2024] SASCA 73 Doyle JA 28 courts are invested with federal jurisdiction in respect of matters arising under Commonwealth legislation by s 39(2) of the Judiciary Act. In addition to this general conferral of federal jurisdiction (which includes federal jurisdiction in relation to criminal matters52), the State courts are also invested with federal jurisdiction in relation to criminal matters under s 68(2) of the Judiciary Act: 68 Jurisdiction of State and Territory courts in criminal cases (1) … (2) The several Courts of a State or Territory exercising jurisdiction with respect to: (a) the summary conviction; or (b) the examination and commitment for trial on indictment; or (c) the trial and conviction on indictment; of offenders or persons charged with offences against the laws of the State or Territory, and with respect to the hearing and determination of appeals arising out of any such trial or conviction or out of any proceedings connected therewith, shall, subject to this section and to section 80 of the Constitution, have the like jurisdiction with respect to persons who are charged with offences against the laws of the Commonwealth. 175 The “like jurisdiction” conferred upon the State courts under s 68(2) has been described as the jurisdiction, or authority, to decide matters involving offences under Commonwealth laws in a manner similar to the authority of those courts to decide matters involving offences under State law, after allowance is made for the fact that the State jurisdiction arises under State laws and federal jurisdiction arises under Commonwealth laws.53 It involves the application, by analogy, of State laws and procedures in hearing and determining charges of offences under Commonwealth laws.54 Relevantly for present purposes, s 68(2) confers this “like jurisdiction” “with respect to … (c) the trial and conviction on indictment” of persons charged with offences under Commonwealth laws. 176 In cases where federal jurisdiction is conferred under both ss 39(2) and 68(2) of the Judiciary Act, an issue may arise as to whether those sources of jurisdiction operate concurrently or whether the latter, as the more specific conferral of jurisdiction in respect of criminal matters, displaces the former.55 However, it is not necessary for this Court to address this issue as nothing turns on it in the present case. 52 Attorney-General (Cth) v Huynh (2023) 97 ALJR 298 at [212] (Edelman J); Brown v The Queen (1986) 160 CLR 171 at 197 (Brennan J), 217 (Dawson J). 53 R v Gee (2003) 212 CLR 230 at [39] (McHugh and Gummow JJ); Solomons v District Court (NSW) (2002) 211 CLR 119 at [41] (McHugh J). 54 Attorney-General (Cth) v Huynh (2023) 97 ALJR 298 at [43]-[46] (Kiefel CJ, Gageler and Gleeson JJ). 55 Attorney-General (Cth) v Huynh (2023) 97 ALJR 298 at [46], [64] (Kiefel CJ, Gageler and Gleeson JJ), [212]-[213] (Edelman J). -- 32 of 51 -- [2024] SASCA 73 Doyle JA 29 177 As the primary judge held, the District Court’s jurisdiction to hear and determine the primary proceedings (that is, the prosecution of the appellant for the 24 counts with which he is charged) was conferred by s 9(1) of the District Court Act (for the State offences), and s 68(2) of the Judiciary Act in combination with s 9(4) of the District Court Act (for the Commonwealth offences). As to the latter, under s 9(4) of the District Court Act, the District Court has any criminal jurisdiction “conferred by statute”; and under s 68(2)(c) of the Judiciary Act, the District Court, as a court exercising jurisdiction with respect to the “trial and conviction on indictment” of persons charged with State offences, was conferred with the “like jurisdiction” to try and convict persons charged with Commonwealth offences. In conducting the primary proceedings, the District Court was thus exercising its ordinary State criminal jurisdiction in hearing and determining the State offences, and exercising federal criminal jurisdiction in hearing and determining the Commonwealth offences. 178 The primary judge held that the conferral of criminal jurisdiction under s 68(2) did not, however, extend to the “separate proceedings” contemplated by s 23(1)(c) for determining a claim for immunity. Rather, her Honour reasoned, those proceedings involved an exercise of civil jurisdiction, being an aspect of the District Court’s civil jurisdiction “conferred by statute” within the meaning of s 8(4) of the District Court Act. It seems that her Honour proceeded, in this respect, on the basis that this civil jurisdiction was conferred by s 23(1) of the PID Act itself.56 179 I agree with the primary judge’s reasoning and conclusion. In circumstances where s 23(1)(c) provides that “the court”, being the court hearing the primary proceedings, “must deal with the claim”, I agree with her Honour that s 23(1) of the PID Act itself conferred the District Court with jurisdiction to determine the appellant’s claim for immunity. To the extent that any further support were needed for this jurisdiction, reliance might also have been placed upon s 39(2) of the Judiciary Act. It follows that there was no need, or occasion, for the Court to rely upon s 68(2) for that conferral of jurisdiction. 180 Indeed, in my view, the appellant’s reliance upon s 68(2) of the Judiciary Act is misplaced. This is so for two reasons. 181 The first reason is that, because the exercise of jurisdiction in question involved the determination of an immunity arising under Commonwealth legislation (s 10 of the PID Act), it did not involve any attempt to apply State laws or procedures by analogy to a Commonwealth offence.57 There was therefore no occasion to have recourse to the conferral of federal jurisdiction (the “like jurisdiction”) under s 68(2) of the Judiciary Act to apply any State laws or procedures by analogy. In hearing the separate proceedings involving the 56 Reasons at [9]. 57 Cf R v Gee (2003) 212 CLR 230 where the issue was the State court’s jurisdiction under s 68(2) of the Judiciary Act to apply the State laws and procedure governing reservation of a question antecedent to trial in the context of a prosecution for Commonwealth offences. -- 33 of 51 -- [2024] SASCA 73 Doyle JA 30 appellant’s claim for immunity, the District Court was considering the application of Commonwealth legislation (s 10 of the PID Act) to the hearing and determination of State and Commonwealth offences, and not the application of any State laws or procedures to the hearing and determination of Commonwealth offences. 182 The second reason is that, even if s 68(2) were relevant in the present case, it is difficult to see how consideration of whether the immunity proceedings under s 23(1) of the PID Act fell within the scope of the “like jurisdiction” in s 68(2) could be determinative of the proper characterisation of those proceedings, let alone the standard of proof applicable to the persuasive onus in those proceedings. Addressing those issues should start with, and focus upon, a consideration of the nature of the immunity under s 10 of the PID Act, and the procedure for the determination of a claim for immunity under s 23(1) of that Act – both generally, and in the context of a claim for immunity made in the course of a criminal prosecution. It seems to me that the task of properly characterising the immunity proceedings must be undertaken first, and that this will then inform not only the standard of proof, but also the source of jurisdiction. 183 In characterising the immunity under s 10 of the PID Act, it is significant that it is not confined to an immunity from criminal liability. It is an immunity from any criminal, civil or administrative liability for making a public interest disclosure. 184 Related to this, s 23(1) provides a single procedure or mechanism for determining a claim for immunity, regardless of whether the claim for immunity is made in the context of civil or criminal proceedings (referred to as “the primary proceedings”). The provisions governing the allocation of the evidential onus and persuasive onus thus apply regardless of the civil or criminal character of the primary proceedings, and there is no textual basis for applying a different standard of proof for the persuasive onus depending upon the character of the primary proceedings. 185 Determination of the claim for immunity is, of course, logically anterior to determination of the primary proceedings against the individual claiming the immunity. This is reflected in the requirement in s 23(1)(d) that the primary proceedings be adjourned until the claim for immunity has been dealt with. 186 Further, s 23(1)(c) requires that the claim for immunity be dealt with in proceedings that are separate from the primary proceedings. Reinforcing this separation between the immunity proceedings and the primary proceedings, s 23 also provides that admissions, information and evidence obtained through the immunity proceedings are not admissible in the primary proceedings (s 23(1)(e)), and that any evidence given in the immunity proceedings does not amount to a waiver of privilege for the purposes of the primary proceedings (s 23(1)(f)). -- 34 of 51 -- [2024] SASCA 73 Doyle JA 31 187 This relationship, and in particular separation, between the immunity proceedings and the primary proceedings does not preclude the character of the primary proceedings informing the character of, and standard of proof applicable in, the immunity proceedings. However, it does tend to lessen the connection between the two proceedings, and hence the scope for this to occur. 188 In contending that the immunity proceedings should nevertheless take their character from the primary proceedings, the appellant emphasises the connection between the immunity and primary proceedings in the context of his criminal prosecution. He points to the fact that the reason or occasion for him to claim the immunity was the prosecution of him for the charged offending. He contends that not only were the criminal proceedings against him on foot when he claimed the immunity, but also, on one view, the trial against him had commenced. Certainly he had been arraigned on all charges in the District Court. More significantly, he contends that the immunity would, if available to him, operate as an answer to, and in that sense be a defence to, the offences with which he is charged. 189 In my view, these considerations carry limited weight. While it is true that the criminal proceedings against the appellant were the reason or occasion for his claim for immunity, the immunity differs in substance and form from a typical defence or answer to criminal liability. It is not only located in separate legislation from any offence provisions, but it is also not directed to any particular offence or type of offence. The preconditions to its availability do not have any textual or other connection with the elements of the alleged offending. They do not form any part of the statement of the general rules constituted by the offence provisions.58 Where available, the immunity operates more as an immunity from liability for criminal offences generally, than a defence directed to any particular offence or offences. Put another way, determining a claim for immunity involves determining an individual’s amenability to the court’s criminal jurisdiction,59 rather than determining that individual’s guilt or innocence of any particular offence or offences. 190 These considerations are consistent with my view that, as a matter of form and substance, the immunity available under s 10 of the PID Act is intended to operate as a free-standing right to an immunity from (civil, criminal or administrative) liability which exists separately from, and is to be determined anterior to, and separately from, any determination of liability. 191 Accepting this characterisation of the immunity, and the fact that there is a single procedure for its determination, with a clear specification of the allocation of the evidential and persuasive onuses, it is unlikely that the legislature intended that the character of the immunity proceedings, or the standard of the persuasive 58 Noting the analogy with the considerations relevant to determining the allocation of the persuasive onus in relation to exceptions to criminal liability: see, for example, Dietman v Karpany (2023) 377 FLR 307 at [76]–[95] (the Court). 59 Fingleton v The Queen (2005) 227 CLR 166 at [6] (Gleeson CJ), [125] (Gummow and Heydon JJ, with whom McHugh and Hayne JJ agreed), [171] (Kirby J). -- 35 of 51 -- [2024] SASCA 73 Doyle JA 32 onus, would have the protean character contended for by the appellant, and differ depending upon the character of the primary proceedings. 192 I agree with the primary judge that the better view is that, regardless of the character of the primary proceedings, the separate immunity proceedings are civil in nature, with the standard of the persuasive onus upon the party resisting the claim for immunity being the typical civil standard of proof on the balance of probabilities. Even though the immunity may fairly be described as protective and remedial in nature, I do not think this is a sufficient basis for ascribing the criminal standard of beyond reasonable doubt to the persuasive onus under s 23(1)(b) of the PID Act. 193 For completeness, I would add that, to the extent that it is relevant to have regard to the scope of the conferral of federal jurisdiction under s 68(2) of the Judiciary Act with respect to offences arising under Commonwealth laws, I do not think that it extends to determination of the appellant’s claim for immunity in respect of the Commonwealth offences with which he is charged, let alone the State offences with which he is charged. The only head of “like jurisdiction” conferred under s 68(2) that is potentially applicable is the jurisdiction “with respect to … the trial and conviction” under s 68(2)(c). Even though the introductory words “with respect to” are words of wide import,60 I do not consider that determination of the appellant’s claim for immunity under s 23 involved an exercise of jurisdiction with respect to his trial or conviction for the Commonwealth offences. In my view, this is so regardless of the fact that s 77(iii) of the Constitution empowers the conferral of criminal jurisdiction in respect of a “matter”, which may extend beyond a single set of legal proceedings;61 and regardless of whether the trial of the charges against the appellant may be said to have commenced before the primary judge.62 Given the separate and distinct nature of the immunity proceedings, as elaborated upon above, the immunity proceedings were not an element or step in the determination or adjudication of the charges faced by the appellant.63 194 It follows from the above that the appellant’s challenges in Grounds 1 and 2 to the primary judge’s approach to the nature of the Court’s jurisdiction, and to the standard of the respondent’s persuasive onus, have not been made out. Ground 3: construction of s 10(1)(a) 195 The appellant claims an immunity from criminal liability under s 10(1)(a) of the PID Act, which is in the following terms: 10 Protection of disclosers 60 R v Gee (2003) 212 CLR 230 at [39] (McHugh and Gummow JJ). 61 See, for example, R v Gee (2003) 212 CLR 230 at [37]-[38] (McHugh and Gummow JJ). 62 See the discussion of the timing of the commencement of a criminal trial in South Australia in R v Pacitti (2022) 141 SASR 482 at [119] (Doyle and David JJA). 63 R v Gee (2003) 212 CLR 230 at [69] (McHugh and Gummow JJ). -- 36 of 51 -- [2024] SASCA 73 Doyle JA 33 (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; … 196 Section 10(1)(a) confers an immunity from liability upon an individual who “makes a public interest disclosure”. If that pre-condition is met, the individual is not subject to any civil, criminal or administrative liability “for making the public interest disclosure”. 197 The meaning of “public interest disclosure” is addressed in s 26(1):64 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. 198 As explained by Lovell JA, the table that follows s 26(1) identifies four categories of public interest disclosures, being internal, external, emergency and legal practitioner disclosures. Only the first and last of these categories are relevant in these proceedings. The appellant contends that his conduct the subject of counts 1-6 and 8-15 involved him making an internal disclosure, and that his conduct the subject of counts 16-24 involved him making a legal practitioner disclosure. 199 The recipients in column 2 of the table for these categories of disclosures are an authorised internal recipient or supervisor of the discloser (for an internal disclosure), and an Australian legal practitioner (for a legal practitioner disclosure). The further requirements in column 3 of the table for these categories include: • in the case of an internal disclosure, that 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; and • in the case of a legal practitioner disclosure, 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, or proposing to make, a public interest disclosure. 64 Under PID Act, s 8 “public interest disclosure” has the meaning given by Subdivision A of Division 2 of Part 2, which includes s 26. -- 37 of 51 -- [2024] SASCA 73 Doyle JA 34 200 There is no dispute that the appellant, as the discloser, was a public official who made a public interest disclosure to an authorised internal recipient on 12 October 2017, the content of which satisfied the further requirements of an internal disclosure. The context and content of the appellant’s disclosure (referred to earlier in these reasons as the October 2017 PID) has been summarised in the reasons of Lovell JA. 201 It follows that, under s 10(1)(a), the appellant is entitled to an immunity from any criminal liability “for making the public interest disclosure”; that is, an immunity from any criminal liability for “making” his October 2017 PID. 202 The respondent contends that the immunity under s 10(1)(a) is confined to the actual disclosure of information by a public official to the authorised recipient. In other words, it only protects the public official from any liability which might attach to their conduct in disclosing – in effect, revealing or communicating – the information contained in the disclosure to the recipient. As the conduct the subject of counts 1-6 and 8-15 involved the appellant’s anterior conduct in collecting and recording information, rather than his conduct in disclosing that information, it was not protected by the immunity. Indeed, while the information the subject of these counts may well have informed and supported the appellant’s approach and disclosure in a general way, it was not included within the October 2017 PID, and so was not in fact disclosed by the appellant to any recipient. 203 The appellant, on the other hand, contends that the immunity conferred by s 10(1)(a) is not so confined. Rather, the notion of “making” a public interest disclosure extends to the process of creating the disclosure, and so extends to anterior acts that reasonably form part of that process. It thus extends to collecting and recording information and evidence which assists in the preparation or formulation of the disclosure, for example, by supporting the allegations of disclosable conduct contained therein. On this basis, the conduct the subject of counts 1-6 and 8-15 was said to reasonably form part of the process of preparing the October 2017 PID, and hence be protected by the immunity. 204 On appeal, the HRLC supported the appellant’s contentions, albeit contending for a narrower formulation of the immunity as extending only to conduct “reasonably necessary” for the disclosure. 205 At first instance, the primary judge upheld the respondent’s construction of the s 10(1)(a) immunity, holding that it was therefore not available in respect of counts 1-6 and 8-15. (The primary judge’s separate conclusion that it was not available in respect of counts 16-24 is addressed in the context of Ground 5.) 206 In so holding, the primary judge undertook a thorough and, with respect, persuasive analysis of the textual, contextual and purposive considerations relevant to the construction of s 10(1)(a), and in particular the meaning of the reference to -- 38 of 51 -- [2024] SASCA 73 Doyle JA 35 “making” a public interest disclosure.65 Rather than summarise her Honour’s reasoning, I will confine myself to mentioning those aspects of her reasoning necessary to explain the parties’ competing contentions on appeal, and my reasons for agreeing with her construction. However, several aspects of my reasons reflect quite closely her Honour’s reasons. 207 Although trite, it is appropriate to commence my analysis of the construction of s 10(1)(a) of the PID Act by observing that the proper approach to statutory construction involves having regard to not only the text of the relevant provision, but also its context and purpose. The contemporary approach to this task was summarised in the following passage from the reasons of Kiefel CJ, Nettle and Gordon JJ in SZTAL v Minister for Immigration and Border Protection:66 The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose67. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense68. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected. 208 In the same case, Gageler J described the task as one involving a “constructional choice” between the competing meanings that may be available:69 The constructional choice presented by a statutory text read in context is sometimes between one meaning which can be characterised as the ordinary or grammatical meaning and another meaning which cannot be so characterised. More commonly, the choice is from “a range of potential meanings, some of which may be less immediately obvious or more awkward than others, but none of which is wholly ungrammatical or unnatural”, in which case the choice “turns less on linguistic fit than on evaluation of the relative coherence of the alternatives with identified statutory objects or policies”.70 209 In the present case, there is a constructional choice to be made between the competing meanings of the word “making” contended for by the parties. Textual and contextual considerations 210 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 65 Reasons at [195]-[237]. 66 SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362 at [14] (Kiefel CJ, Nettle and Gordon JJ). 67 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 381-382 [69]-[71]; Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 at 46-47 [47]. 68 CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408. 69 SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362 at [38] (Gageler J). 70 Taylor v Owners – Strata Plan No 11564 (2014) 253 CLR 531 at 557 [66]. -- 39 of 51 -- [2024] SASCA 73 Doyle JA 36 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. 211 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. 212 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. 213 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. 214 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. 71 With other common light verbs being “take”, “give”, “have” and “do”. -- 40 of 51 -- [2024] SASCA 73 Doyle JA 37 215 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) … 216 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.72 217 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. 218 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. 219 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 72 Reasons at [204]. 73 Reasons at [201]. 74 Reasons at [202]. -- 41 of 51 -- [2024] SASCA 73 Doyle JA 38 “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. 220 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. 221 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 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. 222 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). 223 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. 75 Subsequently repealed, and replaced by a differently worded form of immunity for witnesses in s 12A. 76 Reasons at [207]-[209]. -- 42 of 51 -- [2024] SASCA 73 Doyle JA 39 Purposive considerations 224 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. 225 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. 226 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)). 227 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. 228 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’. 229 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 77 Reasons at [214]-[216]. -- 43 of 51 -- [2024] SASCA 73 Doyle JA 40 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. 230 In supporting a construction of the remedial provisions of the legislation under consideration in IW v City of Perth78 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.80 231 Further, as Gageler J explained in both New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act81 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. 232 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. 233 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 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). 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). -- 44 of 51 -- [2024] SASCA 73 Doyle JA 41 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. 234 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. 235 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. 236 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. 237 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- 83 Reasons at [217]-[221]. -- 45 of 51 -- [2024] SASCA 73 Doyle JA 42 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. 238 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.84 239 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. 240 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. 241 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. 242 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 84 Reasons at [223], [227]. 85 Reasons at [222]-[223]. -- 46 of 51 -- [2024] SASCA 73 Doyle JA 43 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. 243 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. 244 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. 245 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. 246 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 86 PID Act, Column 3 of Items 1 (internal disclosure) and 2 (external disclosure) of the table which follows s 26(1). -- 47 of 51 -- [2024] SASCA 73 Doyle JA 44 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. 247 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. 248 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. 249 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). 250 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. 251 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. -- 48 of 51 -- [2024] SASCA 73 Doyle JA 45 Requirement of reasonableness 252 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. 253 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. 254 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. 255 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 87 Reasons at [230]-[233]. 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). -- 49 of 51 -- [2024] SASCA 73 Doyle JA 46 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. 256 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 257 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. 258 Ground 3 has not been made out. Ground 4: conduct reasonably forming part of the process of preparing the disclosure 259 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. 260 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). 261 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 89 PID Act, s 26(1), item 2, column 3, para (f). -- 50 of 51 -- [2024] SASCA 73 Doyle JA 47 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 262 I agree with the reasons of Lovell JA in relation to this ground, and have nothing to add. Conclusion 263 For the reasons given, I agree with Lovell JA that the appeal should be dismissed. 264 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. -- 51 of 51 --