Page:AB (a pseudonym) v Independent Broad-based Anti-corruption Commission.pdf/21

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

material" is not the "proposed findings", but the "matters" or "material" available to IBAC upon which the "proposed findings" are based. This reasoning is curious, as that is the construction of "adverse material" that was adopted by the primary judge but rejected by the Court of Appeal in upholding IBAC's notice of contention. Putting that curiosity aside, this means that, subject to one exception, the Court of Appeal's finding concerning Pt 5 of the Draft Report was not affected by its incorrect construction of "adverse material".

37 The exception was identified later in the reasons of the Court of Appeal as follows:

""That exception is the statement [in Pt 5 of the Draft Report that] '[o]ther concerns were also raised about providing evidence against [CD] or [AB]' … That statement is so general and lacking in content that it is impossible for the [appellants] to respond to it. However, the inclusion of that statement in the draft report does not mean that IBAC has denied the [appellants] a reasonable opportunity to be heard. That is because, in their response to IBAC, the [appellants] may make the same criticism of that statement that we have made, and request that IBAC either provide details of the 'other concerns' to enable them to respond to them or delete the statement.""

38 This treatment of the "exception" confirms that the Court of Appeal did not adopt the construction of s 162(3) ascribed to it by IBAC in this Court. According to the Court of Appeal's approach, if the contents of a draft report did not provide sufficient detail to enable an affected person to respond to an adverse comment or opinion, the person would only obtain further details of the matters or material justifying that comment or opinion if they were subsequently included in the draft report.

39 In their submissions in this Court, the appellants contended that the relief they sought followed from an acceptance of their proposed construction of s 162(3) and the Court of Appeal's finding that the statement the subject of the "exception" was "so general and lacking in content that it is impossible … to respond to it". IBAC contended that this part of the Court of Appeal's reasons contemplated that compliance with s 162(3) by IBAC is an iterative process and that it was