Page:AB (a pseudonym) v Independent Broad-based Anti-corruption Commission.pdf/20

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

to respond to the adverse comments or opinions. IBAC relied on the Court of Appeal's finding that Pt 5 of the Draft Report included the "substance or gravamen" of the matters IBAC took into account in formulating its adverse comments or opinions about the appellants. The appellants responded by contending that the Court of Appeal's finding was affected by its incorrect construction of "adverse material".

35 To address these contentions, it is necessary to place the Court of Appeal's findings about Pt 5 of the Draft Report in context. Their Honours found:

""A public official who conducts an investigation which may result in the publication of a report containing adverse findings about a person may afford that person a reasonable opportunity to be heard in a variety of ways. One way is to provide the person with the substance or gravamen of the matters that are adverse to him or her and give him or her a reasonable opportunity to respond to that material before the public official forms final views. The substance or gravamen of adverse matters may be disclosed to a person by giving him or her a draft report which discusses those matters and sets out proposed findings in relation to them …

In the present case, the method [just noted] is not only consistent with the applicable statutory framework, it is facilitated by s 162(3) of the IBAC Act. In accordance with that section, 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." (emphasis added; footnote omitted)"

36 This passage identifies a method of affording an affected person a reasonable opportunity that is said to conform with s 162(3) of the IBAC Act by providing them with the "substance or gravamen of the matters that are adverse to him or her" and then affording them "a reasonable opportunity to respond to that material". The balance of the passage makes it clear that "the matters" and "that material" are distinct from the "proposed findings" ("in relation to"). Thus, the method of complying with s 162(3) in the above extract assumes that the "adverse