15 July 2024
18 min read
#Government, #Dispute Resolution & Litigation
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The legal obligation known as the ‘implied undertaking’ or the ‘Harman undertaking’ has been in the spotlight due to the ongoing litigation surrounding Bruce Lehrmann. In recent months, Mr Lehrmann was accused of passing confidential and privileged documents that were protected by a Harman undertaking to Channel Seven during his defamation trial. Justice Lee of the Federal Court of Australia ultimately found that Mr Lehrmann disclosed protected information in violation of his Harman undertaking owed to the Court.
What is it?
The term ‘Harman undertaking’, also referred to as the ‘implied undertaking’, was coined in the English case Harman v Secretary of State for Home Department [1983] 1 AC 280. Essentially, the obligation (owed to the Court) prevents parties from using documents obtained in Court proceedings in other settings, unless it was in evidence and therefore publicly available. That is, documents can only be used for the purposes of the litigation in which they were obtained.
What purpose does it serve?
The primary purpose is to protect the privacy of the party who is the subject of the information and to preserve the integrity of the legal process. To use information covered by the implied undertaking in a different legal proceeding, there must be a “sufficient connection” between the original proceeding in which the information was gained and the proceeding in which the party wishes to use the information.
The implied undertaking is “implied” because there is no formal recorded commitment, the obligation simply arises on receipt of the documents.
What does it apply to?
Implied undertakings are not only confined to court proceedings, they may also arise in respect of information gained through tribunals and arbitrations. Some legislation governing regulatory and investigative powers, such as commissions of inquiries (to which the implied undertaking would not ordinarily apply), contain provisions that mimic the implied undertaking for information provided during those processes.
When does it come to an end?
The implied undertaking ceases to operate when the information is made public (through a court process or otherwise).
There have been three recent cases that provide some timely reminders on how the implied undertaking will apply and some pitfalls to be aware of.
Lehrmann v Network Ten Pty Ltd [2024] FCA 369
In the recent defamation proceedings brought by Mr Lehrmann against Network Ten and others, the alleged protected documents included SMS messages and phone extracts provided to the Australian Federal Police for the purposes of building the previously aborted criminal case against Mr Lehrmann. The respondents were granted leave to reopen evidentiary proceedings on the basis that new evidence had become available which could show that Mr Lehrmann had adduced evidence in the defamation trial that should be inadmissible as it was provided in breach of his implied undertaking.
In his judgement, Lee J did not find it necessary to discuss Mr Lehrmann’s breach of the implied undertaking. His Honour was satisfied that Mr Lehrmann “wrongly provided access to the [undertaking-protected] information” and subsequently made false representations about upholding his obligations under the implied undertaking. His Honour also left it open to the respondents to pursue Mr Lehrmann for this breach. If successful, Mr Lehrmann could face further penalties for being in contempt of court.
La Mancha Africa SARL v Commissioner of Taxation [2021] FCA 1564
In La Mancha, Ernest Henry Mining Pty Ltd had produced sensitive documents to the applicant, La Mancha, pursuant to a subpoena. Ernest Henry then intervened in proceedings between the applicant and the Commissioner of Taxation to seek orders and undertakings by the Commissioner that would limit the use of the subpoenaed documents to those proceedings only. The Commissioner sought to use the undertaking-protected information for the purposes of determining the tax liability of Ernest Henry. In this case, neither party contested that the information in question was covered by the implied undertaking.
The Federal Court of Australia considered whether the implied undertaking could constrain the Commissioner of Taxation from exercising statutory powers which would necessarily involve the use of information obtained during a court process. The Court ultimately found that the implied undertaking was inherently inconsistent with the relevant statutory power and the application was dismissed. The relevant provision, section 166 of the Income Tax Assessment Act 1936 (Cth), required the Commissioner to act on all the information in their possession regardless of how it was obtained.
This case affirmed the principle that the implied undertaking “must yield to inconsistent statutory provisions and to the requirements of curial process in other litigation”.
Re Mokbel (No 2) [2024] VSC 39
In this case, Mr Mokbel sought to adduce evidence that was originally given by witnesses in the Royal Commission into the Management of Police Informants, known as the Lawyer X Commission. Mr Mokbel sought to use the information in proceedings before the Victorian Court of Appeal. Mr Mokbel wished to adduce the evidence to impeach the credibility of the witnesses who gave the evidence in the Lawyer X Commission. Those witnesses were not parties to the proceedings.
The evidence was covered by section 40 of the Inquiries Act 2014 (Vic) which protects information gained through Victorian Royal Commissions from being used against the person who provided the information in any other proceedings. Section 14A of the Commissions Inquiry Act 1950 (Qld) is similarly worded to the Victorian provision.
The Victorian Supreme Court considered the operation and limitations of the Inquiries Act provision in the context of proceedings which the witnesses (whom the provision protected) were not party to. The Court ultimately ruled in favour of Mr Mokbel, stating that the provision should be construed narrowly and held that the evidence from the Lawyer X Commission was admissible. The primary reasoning for this decision was that the proceedings were not brought “against the [witnesses]” who gave the evidence and that the provision will only provide immunity where the witness’ liability is in question.
Government entities who are often party to investigations, commissions of inquiry and litigation processes are likely to come into possession of information and documents which may be relevant or foundational to other courses of action and investigation.
The reasoning in both La Mancha and Mokbel (No 2) shows a trend towards a narrower interpretation of the implied undertaking, specifically in the context of exercising executive and legislative investigation powers. By having knowledge of the Courts’ current interpretation of implied undertakings and their legislative counterparts, government bodies can avoid evidence being rendered inadmissible under these legal obligations.
As was seen in La Mancha, government entities may be able to exercise statutory powers regardless of the use of undertaking-protected information if the nature of the power is directly inconsistent with the implied undertaking. It is conceivable that similar provisions to those considered in La Mancha could be interpreted in a similar way, however this will depend heavily on the precise wording of the provision.
Public sector entities looking to utilise this principle must pay close attention to the wording used in the empowering statute to ensure that the power is sufficiently inconsistent with the implied obligation. This may be a powerful regulatory tool if used correctly, but public sector bodies must also be extremely cautious in relying on this principle as its interpretation in Queensland has not yet been tested.
Government entities should also note that evidence given by witnesses in Royal Commissions and similar investigations may be admissible in proceedings against individuals who are not the witness that gave the evidence (as was the case in Re Mokbel (No 2)). This has useful applications for regulatory bodies, and government entities should be mindful of this during pre and post investigation stages as well as throughout the process itself.
Alternatively, government entities may be able to use litigation processes or exercise regulatory powers to obtain protected information without breaching the implied undertaking. For example, by initiating valid separate proceedings against a party in possession of the information and receiving the documents through that process.
Conversely, all government entities must be mindful when voluntarily giving evidence in litigation and regulatory inquires that it may also be admissible in alternate proceedings using the same methods outlined above.
It is important to obtain legal advice when considering complex legal principles such as implied undertakings. If you have any questions on the applications of Harman undertakings, please get in touch with partner Joanne Jary or special counsel Alexandra Hollings. Our local team has extensive experience in helping public bodies navigate their legal rights and obligations.
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As of 1 July 2024, the former Queensland Fire and Emergency Services (QFES) has become the Queensland Fire Department (QFD). The new department will encompass Queensland Fire and Rescue and Rural Fire Service Queensland. The Minister for Fire and Disaster Recovery, Nikki Boyd, has stated that the launch of the QFD will bring the benefit of increased funding, more equipment, training and resourcing for both QFR and RFSQ (1 July 2024). Read more here…
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Workplace Health and Safety Queensland have advised that the ban of engineered stone, first agreed to nationally in December 2023, has now come into effect as of 1 July 2024. This means that even if contracts containing the use of the engineered stone were entered into prior to the ban, work must cease. ‘Work’ includes the manufacturing, supply, processing and installation of benchtops, panels and slabs Queensland, in considering the dangers to workers, did not elect to adopt a transition period for the use of the stone (2 July 2024). Read more here…
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Rachel Vagg has been appointed the new Queensland Auditor-General. Ms Vagg is the 24th Auditor-General in one hundred and sixty-four years. Her appointment marks the first female to be appointed to the position. The Auditor-General is tasked with providing assurance to the Parliament and Queensland community on the presentation of financial and performance audit of all public sector entities (9 July 2024). Read more here…
Queensland breaks ground on CopperString Project
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AAT Bulletin Issue No. 12/2024 17 June 2024
The AAT Bulletin is a fortnightly publication containing information about recently published decisions and appeals against decisions in the AAT’s General, Freedom of Information, National Disability Insurance Scheme, Security, Small Business Taxation, Taxation & Commercial and Veterans’ Appeals Divisions. Read more here.
AAT Bulletin Issue No. 13/2024 1 July 2024
The AAT Bulletin is a fortnightly publication containing information about recently published decisions and appeals against decisions in the AAT’s General, Freedom of Information, National Disability Insurance Scheme, Security, Small Business Taxation, Taxation & Commercial and Veterans’ Appeals Divisions. Read more here.
Workplace investigations (Directive 01/24)
A new Workplace Investigations Directive and Period Reviews Guide have been issued by Queensland’s Public Sector Commission. The new directive is effective as of 10 June 2024. Read more here.
Rolfe v State of Queensland (Children's Health Queensland Hospital and Health Service) and Ors (No. 3) [2024] QIRC 150
HUMAN RIGHTS – DISCRIMINATION – REFERRAL OF COMPLAINT – where the complainant was employed on a fixed term temporary contract – where the complainant's employment was not renewed – whether the respondents discriminated against the complainant on the basis of sex and pregnancy – whether victimisation occurred – whether the respondents made an unlawful
DU v Jackson (DCJ) [2024] QCA 122
ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – JURISDICTIONAL ERROR – where the appeal the first respondent conducted was an appeal pursuant to s 168 of the Domestic and Family Violence Protection Act 2012 (Qld) – whether this is an appeal by way of rehearing – whether there was an arguable case that the first respondent did not conduct a real review of the evidence and did not form his own view of it – whether the appellant demonstrated an arguable case that the first respondent misapprehended the nature of his task on appeal such that there was jurisdictional error
Reef House Property Pty Ltd v Commissioner of Liquor and Gaming Regulation [2024] QCA 121
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KLT v Director-General, Department of Justice and Attorney-General [2024] QCAT 271
ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – review of decision to issue a negative notice
Acts assented to
Economic Development and Other Legislation Amendment Act 2024 No. 32 – Assent 18 June 2024
Help to Buy (Commonwealth Powers) Act 2024 No. 31 – Assent 18 June 2024
Mineral and Energy Resources and Other Legislation Amendment Act 2024 No.33 – Assent 18 June 2024
Resources Safety and Health Legislation Amendment Act 2024 No. 34 – Assent 18 June 2024
Revenue and Other Legislation Amendment Act 2024 No. 35 – Assent 18 June 2024
State Financial Institutions and Metway Merger Amendment Act 2024 No. 36 – Assent 18 June 2024
Proclamations commencing Acts made
Proclamation No. 1 – Health and Other Legislation Amendment Act 2024 (commencing certain provisions)
Acts repealed
Births, Deaths and Marriages Registration Act 2003
Subordinate legislation notified
Appeal Costs Fund Regulation 2024
Building Industry Fairness (Security of Payment) and Other Legislation Amendment Regulation 2024
Casino Control (Supervision Levy) Amendment Regulation 2024
Civil Liability and Other Legislation Amendment Regulation 2024
Civil Liability Indexation Notice 2024
Disability Services (Fees) Amendment Regulation 2024
Health and Other Legislation Amendment Regulation 2024
Information Privacy and Other Legislation Amendment Regulation 2024
Motor Accident Insurance Indexation Notice 2024
Personal Injuries Proceedings Indexation Notice 2024
Proclamation No. 1 – Health and Other Legislation Amendment Act 2024 (commencing certain provisions)
Proclamation No. 5 –Justice and Other Legislation Amendment Act 2023 (commencing certain provisions)
Professional Standards (Bar Association of Queensland Professional Standards Scheme) Notice 2024
Professional Standards (Law Society of Western Australia Professional Standards Scheme) Notice 2024
Transport Legislation (Fees) Amendment Regulation (No. 2) 2024
Energy (Renewable Transformation and Jobs) Amendment Regulation 2024
Exhibited Animals (Fees) Amendment Regulation 2024
Fire and Emergency Services Amendment Regulation 2024
Gaming Machine Amendment Regulation 2024
Medicines and Poisons (Medicines) Amendment Regulation (No. 2) 2024
National Energy Retail Law (Queensland) Amendment Regulation 2024
Nature Conservation Legislation Amendment Regulation (No. 2) 2024
Planning (Prescribed Amounts) Amendment Regulation 2024
Safety in Recreational Water Activities (Code of Practice) Amendment Notice 2024
Safety in Recreational Water Activities Regulation 2024
Uniform Civil Procedure and Other Rules Amendment Rule 2024
Waste Reduction and Recycling Amendment Regulation 2024
Work Health and Safety (Engineered Stone) Amendment Regulation 2024
Subordinate legislation repealed
Births, Deaths and Marriages Registration Regulation 2015
Appeal Costs Fund Regulation 2010
Professional Standards (Bar Association of Queensland Professional Standards Scheme) Notice 2019
Professional Standards (Law Society of Western Australia Professional Standards Scheme) Notice 2019
Workers’ Compensation and Rehabilitation (QOTE) Notice 2023
Disclaimer
The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this newsletter is accurate at the date it is received or that it will continue to be accurate in the future.
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