AB (a pseudonym) & Anor v Independent Broad-based Anti-corruption Commission

[2023] HCATrans 103

[2023] HCATrans 103

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M7 of 2023

B e t w e e n -

AB (A PSEUDONYM)

First Applicant

CD (A PSEUDONYM)

Second Applicant

and

INDEPENDENT BROAD‑BASED ANTI‑CORRUPTION COMMISSION

Respondent

Application for special leave to appeal

KIEFEL CJ
GORDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA AND BY VIDEO CONNECTION

ON FRIDAY, 11 AUGUST 2023, AT 10.30 AM

Copyright in the High Court of Australia

KIEFEL CJ:   In accordance with the protocol for remote hearings, I will announce the appearances of the parties.

MR N.M. WOOD, SC appears with MR C.J. TRAN and MR B. BROMBERG for the applicants.  (instructed by Slater & Gordon Lawyers)

MR P.J. HANKS, KC appears with MS F.I. GORDON, SC and MR J.S. MAXWELL for the respondent.  (instructed by Independent Broad-based Anti-corruption Commission)

KIEFEL CJ:   Yes, Mr Wood.

MR WOOD:   May it please the Court.  The central issue in this case concerns the scope of a duty in the nature of procedural fairness under section 162(3) of the IBAC Act, owed by IBAC to a person whom IBAC proposed to make adverse opinions or comments in a public‑facing report before any such report is published.  The applicant’s submission is that by reason of the proper construction of the Act, IBAC must give such a person a reasonable opportunity to comment on at least the substance of the adverse evidence on which IBAC proposes to rely in making such adverse comments or opinions, importantly – for reasons I will develop – irrespective of whether that evidence, the substance thereof, is or is not set out in the body of the draft report that IBAC proposes at the time of discharging the obligation to publish.  We submit that as a matter of fact it is clear that if our propositions of construction were to be accepted, that IBAC has not complied with its duty under 162(3).

There are two distinct questions of construction that arise.  The first is the meaning of the expression “adverse material” in section 123(3).  Does it mean the adverse comments or opinions that IBAC intends to include in a special report?  Or, alternatively, does it mean the adverse evidence on which IBAC intends to rely, including such comments or opinions in a report?  The second ‑ ‑ ‑

KIEFEL CJ:   Mr Wood, the special leave questions that are identified in the materials, the first of which is clearly one of the statutory constructions to which you refer and the second is a more general procedural fairness question, is that correct?

MR WOOD:   It is correct, in a sense, but the second question, your Honour, concerns the scope of the requirement to give a reasonable opportunity, and what we will be submitting, reflecting what we have said in writing, is one of the flaws with the approach of the Court of Appeal, with respect, is that it confined the notion of what would discharge, giving an applicant – my clients – a reasonable opportunity to giving sufficient context to the proposed adverse comments or opinions as is set out in the draft report – rather than going ‑ ‑ ‑

KIEFEL CJ:   So, is that second question largely a question of fact or construction?

MR WOOD:   No, it is a question of construction – for reasons I will seek to persuade the Court.  So, that is the second question – assuming that “adverse material” says what the Court of Appeal said it meant – in other words, the adverse comments or opinion.  What about the reasonable opportunity?  In particular, can a person who . . . . . defend themselves be confined to receiving only whatever evidence IBAC elects in the exercise of its discretionary power to include in a special report that it proposes to publish?

Both questions are important, given the subject matter and consequences of the publication of material of this kind, but the second question, though, is of particular importance, including for a reason effectively identified by our learned friends at footnote 6 on page 166 of the application book.  Our friends identify a long list of analog legislation of other jurisdictions, including the Commonwealth, the substance of which, subject to minor variations in the wording, requires an opportunity to be given to a person in the position of my clients to comment on the adverse findings in a proposed report.

GORDON J:   I had understood, Mr Wood, that footnote 6 was directed at the contrary, identifying that it was different in its terms.  Does it not say:

is not a “nationally significant subject” –

MR WOOD:   The tenor of the point made against us, your Honour, is that the question of the construction of the expression “adverse material” is unique to Victoria and perhaps the Northern Territory.  The point that IBAC is making in footnote 6 is that the analog legislation of other jurisdictions requires an opportunity, or reasonable opportunity for comment be given to the proposed adverse finding and it is the extent of what a reasonable opportunity to comment on a proposed adverse finding is that is the subject of the second matter, which I will turn to and spend most of my time on.

So, to start – obviously, pursuant to section 164 of the Act, after conducting an investigation IBAC has discretionary powers to do one or a number of things.  The relevant thing here is to publish a special report.  It has discretionary power whether to publish a report, but also what that report is to include.  But it cannot discharge that – cannot exercise that power unless it has first complied with the constraints in the balance of 162.  We say, obviously, the compliance with 162(3) not only discharges a meaningful objective in ensuring fairness to a person about whom adverse comments are proposed to be made, but also serves to improve the quality of the report, if any, that IBAC chooses to publish.

Very briefly, contrary to the position of IBAC in its response to this Court at application book 172, paragraph 38, in assessing whether IBAC has complied with the duty in 162(3), there is no basis to speculate that IBAC might delete any parts of the draft report at issue in this application.  That proposition was – that was held by Justice Ginnane in the second Woodman Case [2022] VSC 753 at paragraph [15], which judgment IBAC did not appeal.

Very briefly in terms of the first constructional question, which we accept is specific to Victoria, and perhaps the Northern Territory with a very similar provision, we say that the meaning of the expression “adverse material” is ambiguous.  It is the subject of well‑developed arguments on both sides in writing about which, subject to any questions from the Court, I do not intend to rehearse.

The Court of Appeal accepted that it was at the very least an ambiguous expression at paragraph 126 of its judgment.  For the reasons we have already explained in writing, we submit that our construction, whereby “material” refers to evidence or information is a more natural reading textually; it better promotes the apparent purpose of the provision; importantly, it coheres with what one might call the presumptive common law position explicated in cases such as In re Pergamon Press and, indeed, the NCSC Case of this Court some time ago, and ‑ ‑ ‑

GORDON J:   May I ask just one question about that construction that you propound, Mr Wood?

MR WOOD:   Yes.

GORDON J:   The Court of Appeal at paragraphs 134, 135, and 138 at application book 114 and 115 give some significance to the interaction between section 162(3) and 166, which is a confidentiality regime, and identify “adverse consequences” that they say would flow from the adoption of your proposed construction.  May I ask three questions.  The first is, do you take issue with those adverse consequences both in terms of the fact that they are consequences that flow from your construction, or do you take issue with the weight that is given to them by the Court of Appeal in their reaching the conclusion that the one they adopt is the preferred construction?

Another way of putting it might be to ask you, if your construction is adopted, are we left with a gap in relation to confidentiality that is not addressed by the Act?

MR WOOD:   Can I attempt to answer the question this way.  Those particular paragraphs that your Honour has identified are highly revelatory, in our submission, of where the Court of the Appeal has gone wrong.  Because the premise to the Court of Appeal’s reasoning in 134 and 135 is essentially that because 166 provides automatic protection from the disclosure of the contents of the draft report, the idea is that it would be surprising if there were a gap such that any information that IBAC might be obliged to provide in discharge of 162(3), there would not be protection.

Now, there would be protection because IBAC, as we have explained, would have the capacity to give a confidentiality notice under section 42 of the Act.  But passing over that for a moment, one of the profound difficulties, we say, with the Court of Appeal’s construction is this, that in those particular paragraphs – 134, 135 and 138 – that informs the Court of Appeal’s approach that all that a person in my client’s position is entitled to is whatever context and whatever evidence that IBAC has otherwise chosen to set out in its draft report.  But, of course, IBAC has a discretionary power as to not only whether it publishes a report to Parliament, but also what it includes in that report.

So, if the Court of Appeal’s construction were correct, the IBAC could, in its discretion, include de minimis, if any, evidence by way of context that might assist someone in my client’s position to respond to the raw or bare finding because that material is not in the draft report.  If the suggested answer to that from our friends is, well, necessarily, therefore, IBAC is obliged to include more information in the report, then one is back to the touchstone of saying, well, what would IBAC be obliged to include in report?  The touchstone would be credible, relevant, and significant information in order to enable my clients to respond.  But either way, the answer cannot be that whatever IBAC chooses in the exercise of its discretion to include in the draft report will be sufficient.

Elsewhere in the Court of Appeal’s reasons, the Court of Appeal accepted that it would not be sufficient and it would not discharge, effectively, the purpose of the provision of 162(3) for IBAC simply to provide someone in my client’s position with bare conclusions.  But that would be the logical extension of the Court of Appeal’s position if I, back in a given case, chose to give minimal context in the balance of its draft report that might explain the conclusions that it proposes to come to.

The reality is, in a case like this, as in any case, one is left not with the most stark and extreme approach that might conceivably be taken on the Court of Appeal’s analysis, but somewhere down the spectrum, but we say for reasons I will be able to elaborate shortly that it is quite clear that what my clients did not get is sufficient context or nature of the underlying evidence on which IBAC had proposed to rely in making the findings that it proposed to make.  I will not belabour, then, the adverse material construction.  I would say it is more natural, textually; it coheres with the presumptive position at common law, including cases that I have just mentioned.

The second question is the reasonable opportunity.  To some extent, the questions I have been asked by the Court have drawn me into this debate.  As I said, the Court of Appeal went part of the way to accepting that it would not be sufficient to discharge the obligation in 162(3) to simply give the bare conclusions – that is recorded at paragraph 164.  But, consistently, with paragraphs 134, 135, and 138, to which, Justice Gordon, you took me, what the Court of Appeal says at 164 is that:

Rather, a reasonable opportunity required IBAC to also provide any other contents of the draft report which disclose the basis upon which IBAC formed the adverse comments and opinions –

there again tying or confining the concept of the reasonable opportunity to whatever material might otherwise be contained in the draft report that IBAC proposes to publish.  If a person in my client’s position is confined to only receiving whatever context IBAC chooses to publish, they clearly might not get sufficient of the substance of the evidence that has persuaded IBAC on a preliminary basis to its proposed adverse findings, because there is an entirely contingent relationship there.

That is what Justice Ginnane effectively held in Woodman (No. 1) [2022] VSC 684, where his Honour held that there was no reason to suppose that sufficient evidence to give a person a reasonable opportunity to respond to adverse comments will be discharged by giving them a draft report, because that simply supposes that that evidence will be set out in the draft report, and that is not an assumption that can be made, particularly in light of the discretionary power conferred on IBAC under 162(1).

With the remaining time, if it would assist the Court, what I propose to do is to demonstrate why the flaws with the Court of Appeal’s construction, be it of the expression “adverse material” or the confined approach that the Court of Appeal took to the question of giving a reasonable opportunity to comment not just on the bare conclusions but on the context, to take the Court to – and I hope the Court has a copy of it – the redacted version of the draft report that was provided to my clients.

I hasten to add that in taking the Court to this, I certainly do not propose to read out or convey the substance of the detail of that report in light of the prohibition in 166, but we thought it would be useful for the Court, rather than simply taking the Court to the occasional paragraphs in the judgments below where particular parts of the draft report are summarised, to take the Court to examples.  Paragraph 171 of the Court of Appeal’s judgment.  The Court of Appeal held – in the public version of that judgment, I hasten to add – that:

in some instances, pt 5 of the draft report records the evidence of some witnesses without giving much detail about the incidents or events that informed that witness’s evidence.  That is not surprising, as much of the evidence consists of opinions about intangible matters –

and I will come back to that notion in a moment.  But, if I can take the Court – if the Court has a copy of the draft report, and being mindful not to reveal the content of it, if I can ask the Court to turn to page 27 of the draft report, and in particular if I can ask the Court to look at the second full paragraph that appears on page 27 of the draft report, and in particular, the second sentence.  The first part of the second sentence has been redacted in the draft that was given to my clients, but the balance of that second sentence in the second full paragraph in that page, when one reads it, plainly demonstrates – I think, to avoid any risk, I will just simply let the Court read that sentence.

The point, obviously, that I am seeking to advance, is that this is illustrative, that sentence, of what the Court of Appeal held that my clients were not given detail about the incidents or events that informed witnesses’ evidence.  Applying the ordinary developed standards for what procedural fairness would require, we say it is plain that, therefore, the draft report did not, contra the reasoning of the Court of Appeal at 165 and 167 in particular, provide our clients with sufficient of the credible relevant and significant evidence that persuades IBAC, on a preliminary basis, to form adverse views about our clients.

GORDON J:   Can I ask three questions about that, Mr Wood?  Do we not read that in the context of Part 4?  Secondly, what is wrong with the response of the Court of Appeal in 171 where they, as you quite correctly identify, explain that the witnesses were not given much detail about the incidents but go on to explain that they could respond, themselves, in the way in which is set out at the foot of application book 122 and over to 123.

MR WOOD:   As we have said in writing, your Honour, we say there is a meaningful and important difference between being given an opportunity to respond to a high level abstract conclusion that is formed by a body such as IBAC and saying, you, applicant, give us your perspective on that conclusion by reference to your own experience on the one hand and, on the other hand – as we say was required – giving a person in the position of my client some of the detail of the incidents, because if that is not done, then a person in the position of my client simply does not have the opportunity, for example, to rebut or contextualise the particular events or conduct that is said to support the adverse conclusion that is proposed to be made.

We have given – again, at some risk of giving an extreme example – in our written submissions, the proposition that, taken to its extreme, the approach of the Court of Appeal would enable IBAC to publish evaluative conclusions to not give the evidence or an account of the substance of the evidence said to support those conclusions in its report, but simply to say to the person the subject of the proposed adverse findings, all of those conclusions, right or wrong, over to you.  That is a greatly diminished version of what the law would, ordinarily, expect in discharge of a procedural fairness duty.

We say that – I think I have dealt with the balance of 171, we say a similar flaw permeates 173.  At 175 of the Court of Appeal’s judgment, we accept, of course, there is a distinction between documents and the substance and gravamen of the contents of documents, albeit we invoke the warning that this Court and your Honour Justice Gordon yourself gave in a case called Plaintiff M7 about sometimes context being quite critical.  This was not a case where there was evidence advanced by the IBAC to the effect that there was no more contextual information that could be provided.  The evidence fell well short of that.

Finally, we say at 177 that the court makes a clear error.  Again, it supposes that an unparticularised adverse comment in a draft report can be responded to simply by asserting that.  We say that for our client to criticise a highly general unparticularised adverse comment in a report is something that it might well do, but fairness cannot be confined to only allowing a person to criticise the highly general adverse finding.  Fairness would require opportunity to be given to a person in my client’s position to say that the finding simply should not be made because, for example, the evidence might not support it, or the evidence that is considered by IBAC to support it is wrong or it needs to be contextualised.  That paragraph 177 of the Court of Appeal’s judgment is also very difficult to reconcile with the Court of Appeal’s conclusion at 164 that:

it would not be sufficient for IBAC to provide to the applicants adverse comments and opinions in bare, conclusionary form.

If it please the Court, in addition to our written material, those are the submissions of the applicants.

KIEFEL CJ:   Yes, thank you, Mr Wood.  Yes, Mr Hanks.

MR HANKS:   In short – pardon me, your Honour, I think my voice has become a little hoarse – two points, really.  You have two potential grounds of appeal.  As your Honours know, we say in respect of ground 1 that the construction adopted by the Court of Appeal is obviously correct and that there can be no doubt about that construction.  As to ground 2, we say that essentially it raises no question of principle for this Court.

KIEFEL CJ:   Does that mean, Mr Hanks, that you concede that there might be a question of principle involved in ground 1?

MR HANKS:   Subject to one important qualification, yes.  And the important qualification is that ground 1 by itself cannot support the relief that the applicants seek from this Court.  If this Court were to hold that section 162(3) should be construed in the way for which the applicants contend, so that adverse material included not only the adverse comments and opinion expressed in the section, but also some range of underlying material, if the Court were to include that, in our submission, no consequence would follow unless the Court came to the conclusion that ground 2 succeeded.

Ground 2 is where the real debate would have to be held.  It is not enough, in our submission, for this Court to say more material should have been provided by IBAC to the applicants so as to allow them to make representations.  That is only significant if the failure to provide that material meant that there was a denial of procedural fairness.  In our submission, the Court will not come to that conclusion without interrogating ground 2 and asking whether, as a practical matter, the applicants have been denied procedural fairness.

KIEFEL CJ:   Mr Hanks, the two grounds are intertwined, are they not, as a matter of statutory construction?

MR HANKS:   Ground 1 ‑ ‑ ‑

KIEFEL CJ:   If you look at the orders sought, 2(c)(i) really captures both.  It has to be a reasonable opportunity to respond to something in particular; that is, adverse material.  But it is still, in the language of the section, reasonable opportunity.  I accept that there is a separate question about whether, in fact, a reasonable opportunity has been given, or, as Mr Wood says, a mixed question of fact and law.

MR HANKS:   May I ask your Honour just to look at what we said in writing, briefly, in paragraph 11 of our response, on page 166 of the court book.  Your Honour can see what we said there.  We say that ground 1 does not raise a question of principle.

KIEFEL CJ:   It might not raise a question of national principle, but it is a question of public importance in Victoria, and I think New South Wales has a very similar provision, has it not?

MR HANKS:   Yes.  It uses the word, or the adjective, “adverse”, your Honour, but not the same noun.  I doubt that we would accept that it is that similar, sufficiently similar to create that analogue which would justify this Court’s intervention.  Fundamentally, what we say about ground 1 is that there is no error, no obvious error, no subtle error, even, in the construction adopted by the Court of Appeal, supported by the text and the context and the apparent purpose of the Act, and we develop all of those arguments in our written submission to the Court, and I do not propose to recanvas them.

What I do want to do is draw attention to the way that subsection 162(3) is built on two concepts.  The first of those is the concept of adverse material.  So, that is the operative aspect of subsection 162(3), that is, there must be a “reasonable opportunity to respond” to something.  What is the something?  Adverse material.

But the second concept is the phrase that I have just mentioned – the “reasonable opportunity to respond”.  And, in our submission, the real work that subsection 162(3) performs is found in that language.  The obligation that is cast on IBAC is to provide a “reasonable opportunity to respond”, and, ultimately, compliance or failure to comply with that obligation will be tested against that proposition – has that “reasonable opportunity to respond” been provided?  And there will be cases where – and the Court of Appeal identified one of these cases here – there will be cases where the material provided by IBAC in the draft report or accompanying the draft report has not given that “reasonable opportunity”.

Can I just ask your Honours to put a place marker against that, briefly?  The obligation to provide the reasonable opportunity is one that is not a once and once only opportunity.  It is a continuing obligation found in subsection (3).  Our client, IBAC, is subject to that continuing obligation.  One of the peculiarities of the way this case has developed is that the applicants have not yet taken up, having been provided with the draft report, have not yet taken up with IBAC their concern about the inadequacy of the opportunity that they had been given.  They were invited to make submissions.  Rather than do that, they have commenced proceedings in the Supreme Court, and it is those proceedings that bring us here today.

Your Honours will have noted that we make the point in our submission that the Court’s engagement with this question is premature – premature in the sense that there has not yet been an established failure to provide that reasonable opportunity.  For example, the applicants had an opportunity to make a submission.  IBAC has an obligation to respond to that submission, and its response could take one of several forms:  IBAC might provide additional material in response to the submission; IBAC might decide to significantly change the final form of the report – all of those are possibilities.  But the point has not yet been reached where it can be said that our client has failed to discharge the obligation in subsection (3).

The other point I wanted to make about the proposed second ground of appeal – this case does not, in our submission, provide a suitable vehicle for the Court to consider whether there has been a failure to provide that “reasonable opportunity”.  In order to make good that proposition, I need to spend a minute tracing the course of this litigation.  When the case was argued before the primary judge, Justice Ginnane, the applicants’ case – as revealed by their originating motion and their written and oral submissions – was a general one, namely, that IBAC had denied them natural justice by not providing them with all of the evidentiary material underlying the adverse findings.

Your Honours can see that in the application book, in the judgment of the Court of Appeal, at application book 90 to 91, and also at application book 122, and there, referring to the paragraphs in the Court of Appeal’s judgment, 50 to 54 and 168.  Our clients responded to the case as advanced before the primary judge by putting on evidence which addressed, in general terms, the importance of witness confidentiality.  Your Honours will see how the primary judge dealt with that evidence, summarised that evidence and considered it, in paragraphs 106 and 107, at application book page 44.

So, there was a widely‑framed case presented by the applicants, responded to by our client, with evidence, and then in the Court of Appeal the case changed quite significantly.  The applicants then focused, for the first time, on five particular passages in the draft report.  Your Honours will see in the Court of Appeal’s judgment, paragraphs 85 and later – 168 – what those five passages were.  It is those five passages which presumably are still in play because it is now said that the Court of Appeal fell into error.  The Court of Appeal was only asked to address those five passages, so they must frame any consideration that this Court were to give to the same point.

Now, the difficulty is that if the Court were to address that ground 2 and those five passages, the Court will not have before it any specific evidence that focuses on critical issues such as what further information IBAC might have about those passages and whether disclosure of further information would raise confidentiality issues.  The Court will not have that, because the time for the giving of evidence was before the primary judge and that evidence had a particular broad focus.  So that, if the Court were to undertake that exercise of looking at ground 2 and asking whether, in respect to the five passages identified before the Court of Appeal, IBAC failed to give the applicants a reasonable opportunity to respond, there would be a substantial risk, in our submission, that IBAC would be denied the opportunity to explain and to justify the omission to provide access to additional information.

I should say one more thing about ground 2.  In our submission, what it asks – or would ask – this Court to do is undertake, for a third time, a detailed assessment of the adequacy of the information in the draft report to discharge the obligation of providing a reasonable opportunity to respond.  That is an exercise that has been undertaken by the primary judge, Justice Ginnane.  His Honour found that IBAC had discharged the obligation for all of the negative comments or opinions – adverse comments or opinions – in the draft report.  The exercise was undertaken again by three members of the Court of Appeal in their joint judgment.  They came to the same conclusion.

KIEFEL CJ:   Mr Hanks, what would you say to the possibility that the leave be limited to ground 1?

MR HANKS:   In our submission, your Honour, an appeal in this Court on ground 1 alone would effectively be – if it were successful – would lead only to a declaration that had no practical consequences.  It would not lead, in our submission ‑ ‑ ‑

KIEFEL CJ:   The same declarations sought could be made, though, in relation to ground 1, could they not?

MR HANKS:   Yes, a declaration could be made, yes.

KIEFEL CJ:   Why do you say that they have no practical effect?

MR HANKS:   They have no practical effect on the outcome of the appeal against the orders made by the Court of Appeal.  It would not justify, by itself, the conclusion that the applicants were denied a reasonable opportunity to respond to the draft report.

GORDON J:   Mr Hanks, just so I understand your answer to the Chief Justice, I thought you said that there would be a basis for the same declarations being made, a declaration that the respondent has failed to

provide.  That is the order that is sought; on application book 132, paragraph 32(c)(i).

MR HANKS:   I am grateful to your Honour for drawing my attention to the precise terms of the declaration.  No, your Honour, it would not justify that declaration . . . . . it would – I was in error – by itself it would not.  The question would still remain, if “adverse material” has that wider reach, what is the consequence of not providing that wider scope of adverse material in this case?  That must depend on whether that led to a denial of the reasonable opportunity to respond to the draft report.  In our submission, the answer to that will be, no, not by itself.

I think those are our answering submissions.  Although could I reinforce one of those made most recently – the primary judge adopted the construction of “adverse material” for which the applicants now contend.  His Honour went on to find that there had been no denial of the reasonable opportunity required by section 162(3).  It is essentially the point I was attempting to make in answer to Justice Gordon.

I thank your Honours.

KIEFEL CJ:   Yes, thank you, Mr Hanks.  Do you have anything by way of reply, Mr Wood?

MR WOOD:   I do, thank you, your Honour.  Just a couple of brief points.  First of all, the notion of “prematurity”, that somehow the application had been brought too early, is simply wrong.  Under 162(3) it says:

If the IBAC intends to include in a report under this section a comment or an opinion which is adverse –

and so forth, then IBAC must do certain things.  The only way that that power ever – that the duty ever arises is where the intention exists, consistently with the reasoning of Justice Ginnane in Woodman (No. 2) at 15.  It is a perfectly crystallised debate.  IBAC has never written to us and said, we are not going to include this or that paragraph.  So, there is no point about prematurity.

With respect to the second attempt to the complete answer to the case, Mr Hanks argues that the case is not a suitable vehicle.  It is, your Honours.  It was always part of my client’s case both at trial and before the Court of Appeal that there had not been compliance by IBAC with section 162(3).  One finds an articulation in the Court of Appeal’s judgment at page 107 of the application book, of the grounds of appeal, about which I understand there was no debate about procedural fairness or the like.  In particular, it is ground 8 and ground 12 that are relevant.

What has happened is that aspects of the case have become narrowed over time.  Grounds that were directed to the conduct of the investigation are not being agitated.  Rather, what the applicants are doing is persisting with the contention that they have always advanced, that there was noncompliance with 162(3).  What emerged in the Court of Appeal, as I understand, although I was not there, and I understand as well without any complaint from IBAC, is that particular examples were explored in arguendo with the members of the court, no suggestion being at that point in time that somehow IBAC was denied fairness or the like.

There are many examples, and I have taken the Court to one on page 27, where we say it is demonstrable that a reasonable opportunity was no given, whether on the Court of Appeal’s construction of adverse material or whether on ours.  The third point I wanted to make is about construction.  If the Court were – plainly, the debate about adverse material is one that can be had, it has been had in writing and the Court of Appeal accept it is an ambiguous expression.  If “adverse material” is construed the way that my clients suggest, that is plainly apt to expand the nature of the obligation under 162(3).

The reasonable opportunity, however, connects with it, so I agree with Mr Hanks that one cannot slice and dice 162(3) up.  It is a compound requirement, a reasonable opportunity to be afforded – a reasonable opportunity to comment on adverse material, but plainly, if adverse material were to be construed in the way that we suggest we would contend, including in light of the examples we have given in writing and orally, that a reasonable opportunity was not provided to comment on the adverse material in the sense of evidence, for reasons we have explained and which are hard to elaborate in more detail orally in the circumstances.

But even if we are wrong, again, about the adverse material point one is left with what is, in truth, a mixed question of fact and law but an important one about the reasonable opportunity, because we submit it is clear that the Court of Appeal has taken an approach whereby the limit of the opportunity is defined by reference to whatever content is in the draft report, and we have sought to explain why that gives rise to serious difficulties.  That in particular is the question that arises in common to other jurisdictions, including New South Wales, where, albeit in slightly different forms, many other jurisdictions, including New South Wales and the Commonwealth’s new legislation, require an opportunity or reasonable opportunity to comment on the adverse findings.

And this underlying question emerges, well, does one therefore go beyond the content of the draft report and into the evidence, and that is an important question, in our submission.

KIEFEL CJ:   Yes, thank you.  The Court will adjourn to consider the course it will take.

AT 11.15 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.19 AM:

KIEFEL CJ:   There will be a grant of special leave in this matter limited to ground 1.  What is your estimate of time, Mr Wood?

MR WOOD:   I think it can be done in half a day, your Honour.

KIEFEL CJ:   Mr Hanks?

MR HANKS:   I agree, your Honour.

KIEFEL CJ:   You agree with that?

MR HANKS:   I do.  I do agree.

KIEFEL CJ:   Yes, thank you.  The Court will now adjourn until 11.30 am.

AT 11.20 AM THE MATTER WAS CONCLUDED