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

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.