JUDGE:	Ginnane J
WHERE HELD:	Melbourne
DATE OF HEARING:	4 and 18 March 2022
DATE OF JUDGMENT:	28 September 2022 (redacted judgment published 26 October 2022)
CASE MAY BE CITED AS:	AB v IBAC
MEDIUM NEUTRAL CITATION:	[2022] VSC 570*

* This is a redacted version of the judgment that was published to the parties on a confidential basis.

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JUDICIAL REVIEW – IBAC investigation – Investigation stage – Entitlement to natural justice – Preparation of draft report – Adverse comments and opinions – Reasonable opportunity to respond to adverse material – Independent Broad-based Anti-corruption Commission Act 2011 ss 3, 8, 12, 15, 40, 42, 45-50, 57, 59, 59A, 60, 86, 116-120, 127, 133, 134, 162-164, 166, 184.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr H Borenstein KC	Slater & Gordon
Mr W Friend KC
Mr B Bromberg
For the Defendant	Mr P Hanks KC Ms F Gordon Mr J Maxwell	Solicitor for the Independent Broad-based Anti-corruption Commission

TABLE OF CONTENTS

Background......................................................................................................................................... 2

The legislation - the Independent Broad-based Anti-corruption Commission Act 2011....... 6

Investigations by IBAC................................................................................................................ 8
Gathering information.................................................................................................................. 8
Special reports............................................................................................................................. 13

The Draft Report.............................................................................................................................. 15

The claimed adverse comments or opinions........................................................................... 17

Grounds 1 and 2: The plaintiffs were denied natural justice during the preparation of the Draft Report........................................................................................................................................... 19

Plaintiffs’ submissions on grounds 1 and 2............................................................................. 19
IBAC’s submissions on grounds 1 and 2................................................................................. 24
Analysis of grounds 1 and 2...................................................................................................... 28
Conclusion on the plaintiffs’ grounds 1 and 2........................................................................ 34

Grounds 3 and 4: IBAC has failed to provide the plaintiffs with a reasonable opportunity to respond to the adverse findings made against them in the Draft Report, in contravention of s 162(3) of the IBAC Act............................................................................................................... 34

Plaintiffs’ submissions................................................................................................................ 35
IBAC’s submissions on grounds 3 and 4................................................................................. 36
Analysis of grounds 3 and 4...................................................................................................... 38
What is a ‘reasonable opportunity to respond’ within the meaning of s 162(3) of the IBAC Act?.......................................................................................................................... 38

Conclusion......................................................................................................................................... 46

HIS HONOUR:

The plaintiffs, AB and CD, seek to establish that the Independent Broad-based Anti-corruption Commission (‘IBAC’) has denied them natural justice in the preparation of a draft special report resulting from Operation [redacted] and failed to provide them with a reasonable opportunity to respond to adverse material contained in it as required by s 162(3) of the Independent Broad-based Anti-corruption Commission Act 2011 (‘IBAC Act’).[1] IBAC is proposing to transmit a special report about Operation [redacted] to each House of the Victorian Parliament under s 162(1) when the report is finalised.
[1]All references to sections of the Act are to sections in the Independent Broad-based Anti-corruption Commission Act 2011 (‘IBAC Act’). I will refer to ‘the IBAC’ as ‘IBAC’.

[Redacted].

IBAC has provided the plaintiffs with a draft report (the ‘Draft Report’) for the purpose of…

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.

Continue reading AB v IBAC

Details

AGLC: AB v IBAC [2022] VSC 570
Case: [2022] VSC 570
Decision Date: 28 September 2022 (redacted judgment published 26 October 2022)

CaseChat Overview and Summary

The case of AB v IBAC involved the Independent Broad-based Anti-corruption Commission (IBAC) investigating a complaint against AB. AB sought judicial review of IBAC's decision to proceed with the investigation, arguing that the Commission had not afforded AB the opportunity to respond to adverse comments and opinions as required by the Independent Broad-based Anti-corruption Commission Act 2011. The case was heard in the Supreme Court of Victoria.

The primary legal issue before the court was whether IBAC had breached the principles of natural justice by failing to provide AB with a reasonable opportunity to respond to adverse material before the preparation of a draft report. The court had to determine whether IBAC's actions were in accordance with the requirements set out in the Act. Specifically, the court considered whether the failure to provide AB with the opportunity to respond amounted to a breach of natural justice and whether this rendered IBAC's investigation unlawful.

In its judgment, the court held that IBAC had indeed breached the principles of natural justice. The court found that IBAC had not provided AB with a reasonable opportunity to respond to adverse material before preparing a draft report, which was a requirement under the Act. The court emphasised that natural justice required IBAC to give AB a fair opportunity to address the adverse comments and opinions before proceeding further with the investigation. The court concluded that IBAC's failure to do so rendered the investigation unlawful. Consequently, the court quashed IBAC's decision to proceed with the investigation.

The court ordered that IBAC's decision to proceed with the investigation be quashed and that IBAC take steps to ensure that AB is provided with a reasonable opportunity to respond to adverse material before any draft report is prepared. The court also directed IBAC to review its processes to prevent similar breaches of natural justice in future investigations.

Orders