Page:AB (a pseudonym) v Independent Broad-based Anti-corruption Commission.pdf/22

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

"premature" to now conclude that IBAC had failed to comply with its obligations when it had not been asked to provide details about the "exception". However, compliance with s 162(3) is only an iterative process if IBAC's intentions in relation to the publication of a special report change over time. The obligation imposed on IBAC by s 162(3) was engaged in December 2021 when it formed the intention to include the relevant adverse comments or opinions about the appellants in its special report. Between that time and up to the hearing in this Court, IBAC's intentions did not alter.

40 The combination of the correct construction of s 162(3) set out above and the Court of Appeal's findings in relation to the "exception" was sufficient to conclude that the provision was not complied with in relation to one of the adverse comments or opinions about the appellants in Pt 5 of the Draft Report, namely, the statement that "[o]ther concerns were also raised about providing evidence against [CD] or [AB]". The fact that the appellants could respond to it by criticising the lack of detail provided, requesting that further detail be included in the Draft Report or seeking the deletion of the proposed statement does not detract from the conclusion that IBAC had not complied with its obligation under s 162(3).

41 However, during the hearing of the appeal, IBAC undertook to this Court that it would not transmit to Parliament a report containing the comment or opinion the subject of the above statement (ie, the "exception"). The effect of that undertaking was that IBAC abandoned the intention referred to in s 162(3) in relation to that comment or opinion. This meant that IBAC was no longer failing to comply with s 162(3).

Relief

42 Notwithstanding that it erred in construing s 162(3) of the IBAC Act, the Court of Appeal's findings in relation to Pt 5 of the Draft Report meant that, with the exception of the above statement the subject of IBAC's undertaking, the appellants failed to establish that IBAC did not comply with s 162(3). In relation to that exception, the appellants have the benefit of the undertaking such that there is no utility in now granting declaratory relief in relation to IBAC's past non-compliance. It follows that, other than noting the undertaking, no substantive relief is warranted.

43 In relation to costs, although the parties' respective cases have varied since the litigation commenced, one constant feature has been their dispute about the proper construction of the phrase "adverse material" in s 162(3). The appellants