Page:AB (a pseudonym) v Independent Broad-based Anti-corruption Commission.pdf/17

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

formulating the proposed adverse findings, comments or opinions intended to be included in a special report. The potentially grave consequences for an affected public body, public officer or other person from the inclusion of such findings, comments or opinions in a special report have already been described.

27 Construed against this background, s 162(2) and (3) modify the common law obligation to afford procedural fairness so as to require a connection between the "adverse material" and the proposed "adverse findings", "comment or … opinion". Otherwise, the scope and nature of IBAC's powers, considered in the context of the common law principles noted above, confirm that the phrase "adverse material" in s 162(3) refers to the "adverse information" said by IBAC to justify the proposed comments or opinions and not the comments or opinions themselves. For the opportunity provided for by s 162(2), and the reasonable opportunity provided for by s 162(3), to be effective, the person affected must be given the opportunity to respond to the material collected by IBAC which it contends justifies the adverse findings, comments or opinions in the special report.

28 In this Court, IBAC sought to support the construction adopted by the Court of Appeal for the reasons it gave. The Court of Appeal reasoned that to construe "adverse material" in s 162(3) as referring to only the adverse comment or opinion would give the provision "definite scope", whereas to construe it as referring to other material would "introduce uncertainty". However, this overlooks the fact that the obligation is only engaged when IBAC forms the intention to include the adverse comment or opinion in its special report. In formulating that adverse comment or opinion, IBAC will, or at least should, have identified the evidentiary material that justifies it. In that respect, the appellants' construction not only enhances the capacity of the affected person to respond to the proposed adverse comment or opinion, but also enhances the performance of IBAC's functions by ensuring that it identifies the material said to support the adverse comment or opinion.