Page:AB (a pseudonym) v Independent Broad-based Anti-corruption Commission.pdf/10

Gageler CJ Gordon J Edelman J Steward J Gleeson J Jagot J Beech-Jones J

11 The Court of Appeal refused the appellants leave to appeal. The Court upheld a notice of contention filed by IBAC to the effect that the primary judge erred in construing the phrase "adverse material". The Court concluded that "adverse material" in s 162(3) refers to "a comment or an opinion which is adverse to any person" and not the material upon which the comment or opinion was based. The Court then rejected all the grounds of appeal contending that s 162(3) was not complied with. The Court found, inter alia, that "pt 5 of the draft report sets out the terms of the comments and opinions that are adverse to the [appellants] and also the substance or gravamen of the matters that IBAC took into account in formulating those comments and opinions". Whether the Court of Appeal's reasons for making that finding followed from its construction of "adverse material" in s 162(3) and how the Court otherwise construed the provision was a matter of debate in this Court. Those issues are addressed below.

12 The appellants applied for special leave to appeal to this Court. They contended that the Court of Appeal erred, firstly, in construing the phrase "adverse material" in s 162(3) and, secondly, in concluding that they were afforded a reasonable opportunity to respond to the "adverse material". The second ground of appeal assumed that the Court of Appeal's construction of "adverse material" in s 162(3) was correct.

13 On 11 August 2023, this Court granted the appellants special leave to appeal in relation to the first ground of appeal only.

The IBAC Act

14 The objects of the IBAC Act and the functions of IBAC include the identification, investigation and exposure of corrupt conduct, assisting in the