Page:AB (a pseudonym) v Independent Broad-based Anti-corruption Commission.pdf/7

 1 GAGELER CJ, GORDON, EDELMAN, STEWARD, GLEESON, JAGOT AND BEECH-JONES JJ. Section 162(3) of the Independent Broad-based Anti-corruption Commission Act 2011 (Vic) ("the IBAC Act") provides that, if the Independent Broad-based Anti-corruption Commission ("IBAC") intends to include in a special report "a comment or an opinion" which is adverse to any person, then IBAC must first provide that person a reasonable opportunity to respond to the "adverse material" and fairly set out each element of the response in its report.

2 The principal issue raised by this appeal is whether the "adverse material" referred to in s 162(3) is the proposed adverse comments or opinions in the special report or whether it is the evidentiary material upon which those proposed adverse comments or opinions are based. The Court of Appeal of the Supreme Court of Victoria found that it was the former. For the reasons that follow, the correct construction is the latter although, as conceded by the appellants, the obligation to provide adverse material may be satisfied by the provision of the substance or gravamen of the underlying material rather than the underlying material itself.

3 As the Court of Appeal erred in its construction of s 162(3), a further issue arises as to whether any relief should be granted to the appellants in light of the limited grant of special leave to appeal to this Court and the fact that many of the Court of Appeal's findings are not affected by its incorrect construction of s 162(3). For the reasons that follow, in light of an undertaking proffered by IBAC to this Court in relation to one part of its draft special report and the balance of the Court of Appeal's findings, no substantive relief is warranted.

Background

4 Between 2019 and 2021, IBAC conducted an investigation into allegations of unauthorised access to, and disclosure of, internal email accounts of a "public body" within the meaning of s 6(1) of the IBAC Act.

5 The second appellant, CD, is a registered organisation under the Fair Work (Registered Organisations) Act 2009 (Cth). The first appellant, AB, is a senior