ABC whistleblower reaches the Federal Court

For more than seven years, a bitter and unresolved dispute over the ABC’s decision to cancel The Checkout, its long-running consumer affairs program, has expanded into something more consequential: a test of how Australia’s national broadcaster accounts for itself, how it deals with internal dissent, and how far whistleblower protection laws can reach to protect those blowing the whistle.

What began as an internal challenge to how senior ABC executives justified the show’s cancellation later spilt into parliament, and then into the Federal Court, where a series of procedural rulings have repeatedly prevented judges from examining the substance of the allegations themselves.

At the centre of the saga is the ABC’s 2018 decision not to fund a seventh series of The Checkout, a program that regularly drew audiences of more than a million viewers.

In a letter sent to the ABC’s then managing director Michelle Guthrie in July 2018, one of The Checkout’s producers described the decision as “a failure of public broadcasting”. They warned the decision to cancel the ABC’s only consumer affairs program risked breaching the ABC Charter, a part of the Australian Broadcasting Corporation Act that outlines the broadcaster’s ongoing functions and responsibilities.

According to the producer, known in court documents as BDR21, senior ABC managers made the decision to cancel The Checkout without consulting the show’s producers. Later, the producer claims, a false internal narrative was constructed that framed the cancellation as the inevitable consequence of failed budget negotiations – negotiations BDR21 says never took place.

That version of events is set out in an account compiled by BDR21 as part of a February 2022 external public interest disclosure, which is supported by contemporaneous internal documents and emails. The PID reproduces explanations given within the ABC for the cancellation decision – explanations that would later be relied on to justify the broadcaster’s actions in oral and written answers to a Senate estimates committee.

“In July 2018, I was troubled by the fact that the ABC cited a cut to the internal ABC budget for ‘Entertainment’ programming as the reason for not funding The Checkout Series 7, but made that decision without having any discussions with the show’s producers about ways to reduce the cost of the show,” BDR21 said in the PID.

“The ABC’s Head of Non-Scripted Production … responded to this allegation within the ABC by making and circulating false claims such as: ‘this situation stemmed predominantly from the producer’s inability to negotiate the budget down for the 7th series to fit in to the priorities for 18/19 ABC budget.’ ”

The PID says the ABC claimed the producer “flat out refused to reduce the budget down at all during numerous conversations and negotiations over the phone”.

BDR21 strongly disputes this, saying there were not “numerous conversations and negotiations” in June 2018. Instead, there was “one phone call in which we discussed a tax rebate called the PDV offset”.

According to BDR21, the false internal narrative hardened over time and was edited, endorsed and circulated at increasingly senior levels within the ABC. The producer alleges such conduct was in breach of the Public Governance, Performance and Accountability Act 2013 and constituted maladministration.

BDR21 also cited an internal ABC investigation named “Project Twirl”, which in March 2021 concluded that the ABC’s claim it had asked the show to return to its Series 5 budget was not correct.

Despite this, no disciplinary action was taken against any person “for falsifying an account of the communications between the ABC and me in the leadup to the Checkout 2018 Decision”, BDR21 alleges in the PID. “I believe this was done because, faced with evidence of serious misconduct, the ABC’s preference was to sweep it under the carpet. It seems to me that concealing misconduct in this way is, itself, maladministration which involves more breaches of the PGPA Duties.”

When Anderson appeared before a Senate estimates hearing in October 2018, he was asked by then Labor senator Kristina Keneally whether ABC management did in fact approach The Checkout’s producers “about an alternative arrangement or perhaps making budget cuts and they said it wasn’t possible?”

Anderson replied: “We did. It wasn’t me specifically at the time, but we did talk to the producer about the timing of the program in that, given the budget pressures that we had, we could not do the program from the beginning of next year.”

Keneally responded: “That’s not my question. My question was: was an approach made to the producers of The Checkout to say: ‘Hey, this show is too expensive. Is there any way we can cut the cost?’ ”

Anderson replied: “I believe so. But, from the producer’s perspective, cutting the cost would mean it wouldn’t be the same show. So the producer made it quite clear that simply taking cost out of it would mean it would not be the show that you know as The Checkout.”

Anderson took a number of questions on notice relating to the timing and location of meetings between ABC managers and the producers of The Checkout.

“This possibly invokes an issue where the act of whistleblowing is protected, but the thinking about it is not.”

In written answers to those questions, provided by the ABC to the Senate in November 2018, the broadcaster said discussions about the format and budget for a seventh series of The Checkout began with a teleconference on May 15, 2018, attended by BDR21 as well as the ABC’s head of entertainment and head of distribution for entertainment and specialist content.

The written answer added that further meetings and phone calls took place over the following weeks, before ABC managers advised The Checkout’s producers on July 6, 2018, that it was unable to commission the program for a seventh series within the budget proposed by the producer.

“Subsequent meetings between the producer and the ABC explored the budget possibilities,” Anderson said. “After careful consideration, the ABC requested a return to the Series 5 budget after the program had received a one-off 3.5 per cent increase for Series 6. The producer declined to negotiate.”

In the PID, BDR21 provides an account of a phone conversation with Anderson in January 2019, after those written answers were provided to the Senate.

“The ABC Managing Director David Anderson told me … ‘My assessment is that this looks like serious misconduct … There is someone who is trying to misrepresent the situation to protect themselves,’ ” BDR21 said in the PID.

On February 6, 2019, Anderson wrote to the Senate estimates committee to amend the evidence given both to the committee and in response to Question on Notice 161.

“The producer emailed possible budget scenarios for a seventh series of The Checkout to the ABC,” Anderson wrote. “In the context of budget adjustments, the ABC did not put a specific revised budget to the producer. There was some discussion between the ABC and the producer regarding the PDV offset, however, there was no substantial negotiation of a new program budget with a view to commissioning a seventh series.”

For BDR21, Anderson’s amendment resolved only the surface issue: what had been said to the Senate. Untouched was the deeper concern that had driven the dispute from the outset: how an inaccurate internal narrative had come to be created, hardened and defended inside the ABC, and why no one appeared to be held accountable for it.

After pursuing internal complaints and making a series of public interest disclosures under the Commonwealth whistleblower regime, BDR21 began proceedings in the Federal Court, seeking to test if the ABC’s account of events was false or misleading and whether the broadcaster had breached its obligations in the way it responded.

What followed exposed a fundamental tension between whistleblower protections and the constitutional limits placed on judicial scrutiny of parliamentary proceedings.

The full Federal Court later ruled that parliamentary privilege was paramount and the court could not test the truth or falsity of what was said to parliament, even in the context of whistleblower claims.

In 2021, and again on appeal two years later, the Federal Court ruled that large parts of the producer’s case could not proceed.

The problem was not that the allegations lacked seriousness but that proving them would require a court to question the truth or motivation of evidence given to parliament. Parliamentary privilege, the judges held, operates as a hard boundary: unless parliament itself says otherwise, courts cannot test what is said in Senate proceedings. Much of BDR21’s legal action was struck out without any finding on whether the ABC’s internal account was accurate or misleading.

As the case ground on, new problems emerged that went beyond parliamentary privilege and into the mechanics of how whistleblowers are able to act.

While BDR21 received documents from the ABC during proceedings, provided under the court-ordered discovery process, the use of such material is tightly constrained.

Parties to litigation are bound by what is known as the Harman obligation, which prevents documents obtained through court processes from being used for any purpose outside the proceedings, unless they are read into evidence. Breaching that obligation can amount to contempt of court.

Because of the novelty and broader implications of the issue, the Human Rights Law Centre’s Whistleblower Project was granted leave to appear as a friend of the court – an unusual step that underscored the case’s significance beyond the parties themselves – with Federal Court Justice John Halley delivering a ruling on the Harman obligation on December 5 last year.

According to Anneliese Cooper, a lawyer with the Whistleblower Project, who was there to support BDR21, the case raises “complex questions about whether someone would be protected from liability for contempt of court, if they were to use confidential court documents to make a whistleblowing disclosure”.

In the end, the Federal Court found whistleblowers are immune from liability if they use confidential court material to make a valid whistleblowing disclosure. “This is an important decision which underscores the important role of whistleblower protection laws,” Cooper tells The Saturday Paper. “In his Honour’s judgement, Justice Halley underscored the public interest function served by whistleblowers.”

Still, Cooper says, the ruling exposes a deeper and unresolved flaw in Australia’s whistleblowing protections. “The decision also recognised an ongoing hole in Australia’s whistleblowing framework,” she says. “Because the prosecution of tax office whistleblower Richard Boyle led to a finding that whistleblower protections only protect the actual act of whistleblowing, not any prior, preparatory conduct, the judge in BDR21 raised the possibility that using court documents to consider blowing the whistle, before the actual whistleblowing, could be contempt. This possibly invokes an issue where the act of whistleblowing is protected, but the thinking about it is not.”

For Cooper, the implications stretch well beyond a single case.

“The way whistleblower protections were considered in the Boyle case, and now in BDR21, underscore the urgent need for comprehensive reform in this area,” she says. “These cases demonstrate the significant gaps and complexities in whistleblowing laws across Australia. If whistleblowers fail to follow narrow and prescriptive whistleblowing pathways, they will not be protected. That must change urgently.”

Ultimately, the most striking feature of the BRD21 v Australian Broadcasting Corporation saga is not what has been proved but what has been made difficult to prove.

The national broadcaster corrected its evidence to the Senate, yet no court has been able to examine how the original account was assembled, endorsed and defended. In that gap between parliamentary privilege and whistleblower protection, the case leaves the stubborn proposition that public institutions can meet the formal demands of accountability while the substance of their conduct remains beyond scrutiny.

The ABC provided a two-sentence response to detailed questions submitted by The Saturday Paper. “The queries raised relate to historical matters that form part of ongoing court proceedings, in which there are suppression orders,” it said. “It would therefore be inappropriate for us to provide further comment at this time.”

This article was first published in the print edition of The Saturday Paper on
January 24, 2026 as “Doesn’t checkout”.

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