Page:AB (a pseudonym) v Independent Broad-based Anti-corruption Commission.pdf/18

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

29 IBAC also contended that its proposed construction was supported by the use of the definite article in s 162(3) (ie, "the" adverse material). However, the use of the definite article only serves to confirm that s 162(2) and (3) do not confer a reasonable opportunity to respond to all material held by IBAC that is adverse to the affected public body or person, but only to "the" adverse material said to justify the adverse findings, comments or opinions IBAC intends to publish in its special report.

30 Like the Court of Appeal, IBAC sought to rely on the fact that the confidentiality restrictions in s 166 of the IBAC Act only applied to a draft report rather than adverse material not included in such a report that might be provided to a public body or person pursuant to s 162(2) or (3). While it was accepted that such adverse material could be the subject of a confidentiality notice, IBAC contended that it was highly improbable Parliament would have intended that s 162(3) require IBAC to disclose a category of information or documents beyond that proposed to be included in a draft report without expressly protecting its confidentiality. However, in oral argument in this Court, IBAC conceded that the provision of a reasonable opportunity in accordance with s 162(3) might require the disclosure of material beyond that included in the Draft Report. Such material would not be protected by s 166.

31 In any event, IBAC's reliance on s 166 loses force once it is accepted that, if "adverse material" is construed as referring to the material said to justify the adverse findings, comments or opinions, it does not necessarily mean that s 162(2) and (3) will always oblige IBAC to provide the affected public body or person with copies of that material. Both before the Court of Appeal and in this Court, the appellants correctly accepted that a "reasonable opportunity" to respond to the adverse material could be afforded in this case by an opportunity to respond to the "gravamen or substance" of the adverse material, rather than the material itself. Further, while it is understandable that Parliament might conclude that the contents of, inter alia, a draft report should always remain confidential lest its release compromise IBAC's investigation or Parliament's response to the report, it is also