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)
