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.
Harman undertaking – a brief overview
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).
Recent cases – what do they tell us?
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.
Implications for the public sector
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.
This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed.