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AB (a pseudonym) v Independent Broad-based Anti-Corruption Commission

AB (a pseudonym) v Independent Broad-based Anti-Corruption Commission

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HIGH COURT OF AUSTRALIA
GAGELER CJ,
GORDON, EDELMAN, STEWARD, GLEESON, JAGOT AND BEECH-JONES JJ
AB (A PSEUDONYM) & ANOR APPELLANTS
AND
INDEPENDENT BROAD-BASED ANTI-CORRUPTION
COMMISSION RESPONDENT
AB (a pseudonym) v Independent Broad-based Anti-corruption Commission
[2024] HCA 10
Date of Hearing: 7 December 2023
Date of Judgment: 13 March 2024
M63/2023
ORDER
1.Appeal allowed.
2.Set aside orders 1 and 4 made by the Court of Appeal of the Supreme Court of Victoria on 15 December 2022 and, in their place, order that:
(a)the application for leave to appeal be granted;
(b)orders 1 and 2 made by Ginnane J on 4 October 2022 be set aside and in their place:
(i)note the undertaking given by the respondent to the High Court of Australia on 7 December 2023 that it will not transmit to the Parliament of Victoria a report pursuant to the Independent Broad-based Anti-corruption Commission Act 2011 (Vic) containing the proposed comment or opinion set out in the sixth paragraph on page 32 of the appellants' Book of Further Materials filed in the High Court of Australia;

(ii)order that each party pay their own costs of the proceedings; and
(iii)order that the proceedings otherwise be dismissed;

(c)each party pay their own costs of the application for leave to appeal to the Court of Appeal; and
(d)the appeal otherwise be dismissed.

3.The respondent pay the appellants' costs of the appeal to this Court.

On appeal from the Supreme Court of Victoria
Representation
N M Wood SC with C J Tran and B Bromberg for the appellants (instructed by Slater & Gordon Lawyers)
P J Hanks KC and F I Gordon KC with J S Maxwell for the respondent (instructed by Independent Broad-based Anti-corruption Commission)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

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.
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.[1] 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.
[1]

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2024] HCA 10
Decision Date: 13 March 2024

CaseChat Overview and Summary

The High Court of Australia heard an appeal from the Court of Appeal of Victoria concerning the interpretation of section 162(3) of the *Independent Broad-based Anti-corruption Commission Act 2011* (Vic). The appellants, AB and CD, challenged decisions made by the Independent Broad-based Anti-corruption Commission (IBAC) during an investigation into unauthorised access to and disclosure of internal email accounts. IBAC had provided the appellants with a redacted draft special report containing proposed adverse findings but refused to supply the underlying evidentiary material, arguing that providing the substance or gravamen of the adverse material was sufficient to comply with its statutory obligations.

The central legal issue before the High Court was the proper construction of section 162(3) of the IBAC Act. Specifically, the Court had to determine whether the term "adverse material" referred to the proposed adverse comments or opinions themselves, or to the evidentiary material upon which those comments or opinions were based. The Court also considered whether the provision of the substance or gravamen of the adverse material was sufficient to satisfy the statutory requirement for a reasonable opportunity to respond, and whether any substantive relief was warranted given the limited grant of special leave and the nature of the Court of Appeal's findings.

The High Court allowed the appeal, finding that the Court of Appeal had erred in its construction of section 162(3). The Court held that "adverse material" in section 162(3) refers to the evidentiary material upon which IBAC's proposed adverse comments or opinions are based, not merely the comments or opinions themselves. Consequently, IBAC must provide a person with a reasonable opportunity to respond to the evidentiary material that supports any proposed adverse findings. Despite this finding, the High Court noted that due to an undertaking provided by IBAC to the Court regarding a specific part of its draft report, and the fact that many of the Court of Appeal's findings were not affected by its misconstruction of section 162(3), no substantive relief was warranted. The Court set aside the orders of the Court of Appeal and made orders for each party to pay their own costs of the proceedings in the High Court and the Court of Appeal, with IBAC ordered to pay the appellants' costs of the appeal to the High Court.

Orders

Orders of the court

1. Appeal allowed.

2. Set aside orders 1 and 4 made by the Court of Appeal of the Supreme Court of Victoria on 15 December 2022 and, in their place, order that:

(a) the application for leave to appeal be granted;

(b) orders 1 and 2 made by Ginnane J on 4 October 2022 be set aside and in their place:

(i) note the undertaking given by the respondent to the High Court of Australia on 7 December 2023 that it will not transmit to the Parliament of Victoria a report pursuant to the Independent Broad-based Anti-corruption Commission Act 2011 (Vic) containing the proposed comment or opinion set out in the sixth paragraph on page 32 of the appellants' Book of Further Materials filed in the High Court of Australia;

(ii) order that each party pay their own costs of the proceedings; and

(iii) order that the proceedings otherwise be dismissed;

(d) the appeal otherwise be dismissed.

3. The respondent pay the appellants' costs of the appeal to this Court.

Background

Background to the litigation

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 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. The second appellant, CD, is a registered organisation under the Fair Work (Registered Organisations) Act 2009 (Cth). The first appellant, AB, is a senior officer of CD and an employee of the public body. During the investigation, AB gave evidence to IBAC in a private examination. On 6 December 2021, IBAC provided AB with a redacted version of its draft special report prepared under Pt 7 of the IBAC Act and requested his response by 20 December 2021 ("the Draft Report").[2] Part 4 of the Draft Report contained proposed findings adverse to AB (and others) in relation to the unauthorised access and disclosure of information and reasons for those findings. Part 5 of the Draft Report contained proposed findings adverse to the appellants (and others) in relation to the workplace culture of the public body and reasons for those findings. [2]AB [2022] VSCA 283 at [4] per Emerton P, Beach and Kyrou JJA. On 12 December 2021, AB's solicitor replied to IBAC seeking an extension of time in which to respond, the transcript of his examination, transcripts of the examinations of other witnesses referred to in the Draft Report and copies of other documentary material relied upon to support the proposed adverse findings. On 14 December 2021, IBAC agreed to the extension of time and provided the transcript of AB's examination as well as copies of the documents shown to him during his examination. However, IBAC did not agree to provide the transcripts of the other witness examinations or the other requested documents.[3] [3]AB (a pseudonym) v Independent Broad-based Anti-corruption Commission [2022] VSC 570 at [11] per Ginnane J; AB [2022] VSCA 283 at [41]-[42] per Emerton P, Beach and Kyrou JJA. In January 2022, AB commenced proceedings in the Supreme Court of Victoria. CD was later joined as a plaintiff. The appellants sought declaratory relief to the effect that IBAC had failed to comply with s 162(3) of the IBAC Act and an order, described as being "in the nature of prohibition" but in substance an injunction, restraining IBAC from transmitting the Draft Report to each House of Parliament and otherwise publishing it.[4] [4]AB (a pseudonym) v Independent Broad-based Anti-corruption Commission [2022] VSC 570 at [18] per Ginnane J.The decisions below

Evidence

Evidence Before The Court

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Decision

Reasons for decision

GAGELER CJ, GORDON, EDELMAN, STEWARD, GLEESON, JAGOT AND BEECH-JONES JJ

In January 2022, AB commenced proceedings in the Supreme Court of Victoria. CD was later joined as a plaintiff. The appellants sought declaratory relief to the effect that IBAC had failed to comply with s 162(3) of the IBAC Act and an order, described as being "in the nature of prohibition" but in substance an injunction, restraining IBAC from transmitting the Draft Report to each House of Parliament and otherwise publishing it.[4] [4]AB (a pseudonym) v Independent Broad-based Anti-corruption Commission [2022] VSC 570 at [18] per Ginnane J.The decisions below Before the primary judge, Ginnane J, the appellants contended, inter alia, that IBAC had contravened s 162(3) of the IBAC Act by failing to provide them with a reasonable opportunity to respond to the adverse findings in the Draft Report. His Honour construed the reference to "adverse material" in s 162(3) as meaning "the material upon which IBAC's adverse comments or opinions contained in the Draft Report were based".[5] However, his Honour did not accept that, to comply with s 162(3), IBAC had to provide that evidentiary material to the appellants, but instead found it was sufficient if IBAC provided "the substance or gravamen of the adverse material".[6] His Honour concluded that the redacted version of the Draft Report contained the "substance of the adverse material upon which the adverse comments or opinions about the [appellants] ... were based".[7] His Honour also found that, by providing the appellants an opportunity to respond to the Draft Report, IBAC afforded them the reasonable opportunity referred to in s 162(3).[8] [5]AB (a pseudonym) v Independent Broad-based Anti-corruption Commission [2022] VSC 570 at [147] per Ginnane J.[6]AB (a pseudonym) v Independent Broad-based Anti-corruption Commission [2022] VSC 570 at [151], [154] per Ginnane J.[7]AB (a pseudonym) v Independent Broad-based Anti-corruption Commission [2022] VSC 570 at [168], [171] per Ginnane J.[8]AB (a pseudonym) v Independent Broad-based Anti-corruption Commission [2022] VSC 570 at [173], [175]-[176] per Ginnane J. The appellants sought leave to appeal from the primary judge's decision. Their application for leave to appeal to the Court of Appeal raised various grounds that invoked s 162(3), including a contention that, even if s 162(3) could be complied with by providing the "substance and gravamen of the adverse material", the primary judge erred in concluding that was included in the Draft Report. This contention was confined to adverse comments or opinions set out in five passages in Pt 5 of the Draft Report.[9] [9]See AB [2022] VSCA 283 at [87] per Emerton P, Beach and Kyrou JJA. The Court of Appeal refused the appellants leave to appeal. The Court upheld a notice of contention filed by IBAC to the effect that the primary judge erred in construing the phrase "adverse material". The Court concluded that "adverse material" in s 162(3) refers to "a comment or an opinion which is adverse to any person" and not the material upon which the comment or opinion was based.[10] The Court then rejected all the grounds of appeal contending that s 162(3) was not complied with.[11] The Court found, inter alia, that "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".[12] Whether the Court of Appeal's reasons for making that finding followed from its construction of "adverse material" in s 162(3) and how the Court otherwise construed the provision was a matter of debate in this Court. Those issues are addressed below. [10]AB [2022] VSCA 283 at [126] per Emerton P, Beach and Kyrou JJA.[11]AB [2022] VSCA 283 at [159] per Emerton P, Beach and Kyrou JJA.[12]AB [2022] VSCA 283 at [167] per Emerton P, Beach and Kyrou JJA.

Ratio Decidendi

Legal Principle Established

Established by: GAGELER CJ, GORDON, EDELMAN, STEWARD, GLEESON, JAGOT AND BEECH-JONES JJ

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