Federal Court: February 2026

PRACTICE AND PROCEDURE 

Intersection of Hearne v Street obligation (also known as Harman obligation) and disclosures under Public Interest Disclosure Act 2013 (Cth)  – where applicant seeks release from Hearne v Street obligation in relation to discovered documents to facilitate a ‘public interest disclosure’

BDR21 v Australian Broadcasting Corporation (No 3) [2025] FCA 1535 was a decision regarding an application seeking a declaration that the applicants were not prevented from relying on documents discovered in the proceeding in making a public interest disclosure by reason of the Hearne v Street obligation (also known as the Harman obligation).

The respondent (‘ABC’) had provided extensive discovery to the applicants pursuant to orders made in the proceeding, including documents produced by the ABC in response to subpoenas issued in a Supreme Court proceeding.

The applicants contended that the information in the discovery documents tended to show ‘disclosable conduct’ under the Public Interest Disclosure Act 2013 (Cth) (‘PID Act’), they wished to make a public interest disclosure under the PID Act that included the discovery documents, and this would initiate a formal process which could identify misconduct within the ABC and an appropriate remedial response. The applicants also contended they would experience adverse consequences if they provided the information in the discovery documents and wanted to have the protections provided in Part 2 of the PID Act for public interest disclosures.

The relief sought by the applicants raised for consideration the intersection between the Hearne v Street obligation and the making of public interest disclosures pursuant to the PID Act.

The Human Rights Law Centre sought and obtained leave to make written submissions and appear at the hearing of the application as amicus curiae.

All parties unequivocally accepted the Hearne v Street obligation did not prevent the applicants from making a public interest disclosure under the PID Act. Further, the applicants only pressed for a release of the first applicant from the Hearne v Street obligation with respect to the specific documents identified in the application and did not press for a general release from the Hearne v Street obligation.

The Court’s findings

The Court granted the first applicant a release from the Hearne v Street obligation with respect to the specific discovery documents and affidavits identified in the application, to permit their use for the purpose of attempting in good faith to make a public interest disclosure under the PID Act.

In doing so, Halley J considered the Hearne v Street obligation and confirmed it prohibits the use of documents for purposes that are unrelated or unconnected with a proceeding or litigation (Northbuild Construction Pty Ltd v Discovery Beach Project Pty Ltd (No 4) [2011] QCA 345 at [38], Deputy Commissioner of Taxation v Karas [2012] VSC 143 at [43] and Gavan v FSS Trustee Corporation [2019] NSWSC 667 at [89]-[90]) (at [12]-[13]).

Breach of the obligation constitutes a contempt of court (Credit Suisse Virtuoso SICAV-SIF v Insurance Australia Limited (No 2) [2024] FCA 1308 at [7]) and the obligation must yield to inconsistent statutory obligation and the curial process (Esso Australia Resources Ltd v Plowman [1995] HCA 19 at [33]) (at [14]-[15]).

His Honour then considered the relevant sections of the PID Act, including the immunity provided by section 10(1), the definitions of ‘public interest disclosure’ and ‘disclosable conduct’ in sections 8, 26(1) and 29(1), and the exceptions to the immunity in sections 11, 11A and 12 (at [16]-[20]). His Honour noted:

• the Hearne v Street obligation does not fall within the scope of the exceptions to the immunity (at [20]);
• a valid public interest disclosure may only be made in narrow circumstances (at [21]);
• a person is not entitled to claim the immunity unless they have communicated information to an appropriate recipient (at [23]); and
• the immunity provision in the PID Act ought to be construed as reflecting a balance between encouraging appropriate disclosure and not unduly interfering with the ordinary scope of criminal and civil liability—rather than simplistically assuming the broadest meaning it can bear (Boyle v Director of Public Prosecutions (Cth) [2024] SASCA 73 at [234]-[235]) (at [24]).

The intersection between the PID Act immunity and the Hearne v Street obligation was then addressed with his Honour noting the following:

• Section 10(1) provides immunity from liability for making a valid public interest disclosure—not a release from one’s obligations not to disclose information, including the Hearne v Street obligation.  It does not have the effect of extinguishing the Hearne v Street obligation or relieving a person from the obligation. Rather the person remains subject to the Hearne v Street obligation but is immune from liability for any breach of that obligation with respect to the disclosure of documents or information in a valid public interest disclosure under the PID Act (at [25]).
• The immunity only extends to the information or documents that have become the subject of a valid public interest disclosure and only applies to disclosing the information, not the gathering of it. This presents a whistleblower who has received documents/information pursuant to a compulsory process with a dilemma as the Hearne v Street obligation prohibits a person, without leave of the court, to ‘use’ documents for any purpose other than that for which they were produced, unless they are received into evidence in the proceeding (at [27]-[28]).
• Since no valid public interest disclosure under the PID Act had yet been made by the applicants, the immunity in the PID Act had no operation (at [29]).
• A court can grant release from the Hearne v Street obligation where there are special circumstances and the court has a broad discretion to do so when shown good reason, taking into consideration the nature of the document, the attitude of the author of the document, the nature of the information in the document, and the likely contribution of the document to achieving justice in the other proceeding (Liberty Funding Pty Ltd v Phoenix Capital Ltd [2005] FCAFC 3 at [31] and Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217 at 225) (at [30]-[32]).
• The modification or release from the Hearne v Street obligation should be no greater than is ‘necessary or appropriate to meet the interests of the administration of justice or the public interest’ and, generally, it will be necessary ‘to identify with precision the documents to be released and the purpose of that release’ (Australian Securities and Investments Commission v Marshall Bell Hawkins Ltd [2003] FCA 833 at [13]) (at [33]).
• Specification of the document for which the release is sought is ‘fundamental’ (Ambridge Investments Pty Ltd v Baker (No 3) [2010] VSC 545 at [52]), and necessary to assess whether there is good reason to grant the release (Gavan v FSS Trustee Corporation [2019] NSWSC 667 at [125]) (at [33]).

Taking into account the objectives of the PID Act, the Court found the applicants’ foreshadowed use of the specified documents in connection with their proposed public interest disclosure advanced the policy objectives of the PID Act and was for a confined and discrete purpose. Therefore, the conclusion there were special circumstances justifying a release from the Hearne v Street obligation was supported. In making its findings, the Court considered any prejudice suffered by the ABC and found disclosure of the specified documents was unlikely to lead to any material invasion of privacy and confidentiality of the ABC’s affairs (at [37]-[45]).

Vincci Chan is a barrister at University Chambers.