AB v IBAC

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2022 00229

AB (a pseudonym)	First Plaintiff
CD (a pseudonym)	Second Plaintiff
v
INDEPENDENT BROAD-BASED ANTI-CORRUPTION COMMISSION	Defendant

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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 them responding to the adverse material on which the adverse comments and opinions about the plaintiffs in it are based. The plaintiffs’ case is that IBAC denied them natural justice in its investigation and in the preparation of the Draft Report and has not provided them with a reasonable opportunity to respond to the ‘adverse findings’ on which the adverse comments and opinions are based.[2] The plaintiffs relied on the following grounds
[2]For the sake of uniformity, I have used the term natural justice throughout the judgment rather than procedural fairness. To the extent there is a difference between the two concepts it is not material in this proceeding: see Mark Aronson, Matthew Groves and Greg Weeks, Judicial Review of Administrative Action and Government Liability (Thomson Reuters, 7^th ed, 2022) 399 n 1.

(a) AB was denied natural justice during the preparation of the Draft Report;

(b) CD was denied natural justice during the preparation of the Draft Report;

(c) IBAC had failed to provide AB with a reasonable opportunity to respond to the adverse findings made against him in the Draft Report, in contravention of s 162(3); and

(d) IBAC had failed to provide CD with a reasonable opportunity to respond to the adverse findings made against it in the Draft Report, in contravention of s 162(3).

Although the plaintiffs’ grounds 3 and 4 refer to ‘adverse findings’, s 162(3) gives the plaintiffs a right to respond to adverse material and the parties’ submissions were directed to whether they had been given that right by the provision of the Draft Report.

Background

In June 2018, [redacted] notified IBAC under s 57(1) of [redacted]. Section 57(1) provides that the relevant principal officer may notify IBAC of matters that the notifier believes on reasonable grounds constitute corrupt conduct.[3] [Redacted]. IBAC commenced Operation [redacted] as a preliminary inquiry into the matters notified, but expanded its scope to include further allegations of [redacted]. IBAC commenced an investigation under s 60, gathered information and conducted private examinations of witnesses between 2019 and 2021.
[3]‘Relevant principal officer’ is defined in s 3(1) of the IBAC Act.

On 7 August 2019, IBAC served a confidentiality notice on AB in relation to Operation [redacted]. IBAC can serve confidentiality notices if, during an investigation, it considers that the disclosure of restricted matters would be likely to prejudice that investigation, the safety or reputation of a person, or the fair trial of a person who has been, or may be, charged with an offence.[4] IBAC may cancel the confidentiality notices if, at any time, it considers on reasonable grounds that the disclosure of the restricted matters would no longer be prejudicial.[5]
[4]IBAC Act s 42(1).
[5]IBAC Act s 42(5).

The confidentiality notice listed the following restricted matters that AB was not permitted to disclose, subject to certain exceptions:[6]
[6]See Exhibit GB-8 to the Affidavit of Geoffrey Borenstein dated 28 February 2022, 9 (‘Second Borenstein Affidavit’).

1. What is this notice?
This confidentiality notice is issued under section 42 of the Independent Broad-based Anti-corruption Commissioner Act 2011 in respect of the following restricted matters:
- Any evidence or information given to, or obtained by, the IBAC;
-The contents of any document, or a description of any thing, produced to, or obtained by, the IBAC;
-The contents of any document, or a description of any thing, which the IBAC has made a copy of or seized under Division 3 or Division 4 of Part 4;
-The existence of, any information about, a confidentiality notice or a witness summons;
-The subject matter of an investigation in relation to which a witness summons has been issued;
-Any information that could enable a person who has been, or is proposed to be, examined by, or who had produced, or may produce, any document or thing to, the IBAC, to be identified or located; and
-The fact that a person has been, or is proposed to be, examined by, or has produced, or may produce, any document or thing to, the IBAC.

IBAC summonsed AB, who gave evidence in a private examination on 4 and 5 November 2020. The summons stated that he was required to give evidence about the following matters:[7]

[Redacted].

[7]Exhibit CJA-1 to the Affidavit of [redacted] dated 2 February 2022 (‘First [redacted] Affidavit’).

Upon the conclusion of the investigation, IBAC, acting under ss 162(1) and 164(1)(c), prepared the Draft Report setting out its findings and recommendations. It proposes to transmit a special report to each House of the Victorian Parliament once it has received and considered responses from those to whom the Draft Report has been sent.

On 6 December 2021, a senior lawyer of IBAC caused an email forwarding the Draft Report to be sent to seven persons, including AB, and one public body. Each person was provided with a redacted version of the Draft Report, revealing parts relevant to them or which were necessary to provide them with context. Each recipient was required to respond to the Draft Report by 20 December 2021. IBAC’s letter to AB accompanying the Draft Report stated:[8]
[8]Exhibit GB-1 to the First Borenstein Affidavit (emphasis in original).

Dear [AB]
Draft Special Report – Operation [redacted] – For Natural Justice Review
As you are aware, IBAC has [redacted] (Operation [redacted]). IBAC has concluded this investigation and prepared a draft special report (Draft Report) under section 162 of the Independent Broad-based Anti-corruption Commission Act 2011 (IBAC Act).
The purpose of this letter is to make a redacted copy of the Draft Report available to you for your review and response. IBAC is making a redacted Draft Report available to you because it contains comments or opinions that may be considered adverse to you. These comments or opinions are unredacted.
Please provide any response to the Draft Report to IBAC by close of business on Monday 20 December 2021. If IBAC has not received a response from you by this date, we will take this to mean that you do not wish to comment. If this is the case, your decision not to respond to the Draft Report will not be the subject of adverse comment in the final special report.
….
The Draft report is provided to you in strict confidence. You are prohibited from making copies or disclosing any of its contents except for the purpose of obtaining legal advice or representation. We draw your attention to section 166 of the IBAC Act which imposes criminal penalties for unauthorised disclosure of any information contained in a report, a draft or part of a proposed report prior to its publication.
Once IBAC has considered all feedback to the Draft Report, the special report will be finalised and provided to Parliament for tabling. Depending on comments received by IBAC in response to the Draft Report, the final version might differ in some respects.

On 12 December 2021, AB’s solicitor wrote to IBAC requesting the transcript of his witness examination, the transcripts of examinations of other persons referred to, and relied upon, in the Draft Report, and copies of the secondary material, reports and other documents, cited and relied on in the Draft Report. The solicitor also sought until the end of March 2022 to provide a response to the Draft Report. On 14 December 2021, IBAC granted an extension until 7 January 2022 and agreed to provide the transcript of AB’s examination, which it did three days later, but did not agree to provide the transcripts of other witnesses. IBAC granted further extensions of time until 4 February 2022.

On 19 January 2022, AB requested IBAC to allow him to seek the assistance of persons employed by CD in preparing his response to the Draft Report. IBAC refused this request because the Draft Report was confidential and provided to AB in his personal capacity. On 21 January 2022, AB’s solicitor sent an email to IBAC stating that AB considered that he had been denied a reasonable opportunity to respond to the adverse material, and would be commencing court proceedings.

AB commenced this proceeding on 31 January 2022.

At an interlocutory hearing on 3 February 2022, IBAC undertook that, in the event of the Originating Motion being dismissed, it would allow AB five business days to make a response to the Draft Report under s 162(3). IBAC also undertook to the Court that it would not finalise the Draft Report, or send the finalised report to the Parliament of Victoria, until after final judgment in this proceeding.

On 10 February 2022, AB’s solicitor informed the Court that:

Subsequent to the hearing last week, IBAC provided [CD] with a copy of the draft report for its review and response under s 162(3) of the Independent Broad-based Anticorruption Commission Act 2011.
Now that [CD] has received and is aware of the draft report, [CD] objects to the draft report on the same grounds as the plaintiff and seeks to be joined as a plaintiff in this proceeding.

On 21 February 2022, an IBAC senior investigator sent an email to the plaintiffs’ solicitor attaching a letter from the Deputy Commissioner of IBAC to AB about the confidentiality notice, which stated in part:[9]

[Redacted].

[9]See Exhibit GB-7 to the Second Borenstein Affidavit, 4-6.

The Court of Appeal decision referred to was Beckingham v Browne,[10] which decided that confidentiality notices in an unrelated matter were invalid.
[10][2021] VSCA 362.

After AB commenced this proceeding, CD was joined as a plaintiff and leave granted to file an Amended Originating Motion which seeks the following judicial review remedies:

1) An order in the nature of prohibition, restraining the Defendant, by itself, its servants and agents from transmitting the Special Report entitled ‘Operation [redacted], Special Report’ to each House of Parliament, and from publishing the report by any other means, including on its website.
2) Declarations that the Defendant had failed to afford AB and CD procedural fairness in the preparation of the Special Report entitled ‘Operation [redacted], Special Report’.
3)Declarations that the Defendant had contravened s 162(3) of the Independent Broad Based Anti-Corruption Commission Act 2011 by failing to provide the AB and CD with a reasonable opportunity to respond to adverse findings made against them in the Special Report entitled ‘Operation [redacted], Special Report’.

The parties presented their cases on the basis that the Draft Report contained comments or opinions which were adverse to AB and CD and they are described later in this judgment.

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

IBAC is established under s 12. The objects of the Act are stated in s 8 to be:

8        Objects of Act
The objects of this Act are to—
(a)       provide for the identification, investigation and exposure of—
(i)        corrupt conduct; and
(ii)       police personnel misconduct;
(aa)provide for the IBAC to prioritise the investigation and exposure of serious corrupt conduct or systemic corrupt conduct;
(b)assist in the prevention of—
(i)corrupt conduct; and
(ii)police personnel misconduct;

(c)facilitate the education of the public sector and the community about the detrimental effects of corrupt conduct and police personnel misconduct on public administration and the community and the ways in which corrupt conduct and police personnel misconduct can be prevented;
(d)assist in improving the capacity of the public sector to prevent corrupt conduct and police personnel misconduct;
(e)provide for the IBAC to assess police personnel conduct.

Section 15 confers functions on IBAC including to identify, expose and investigate corrupt conduct and police personnel misconduct; assess police personnel conduct; receive complaints and notifications related to corrupt conduct; conduct preliminary inquiries; and hold examinations and make referrals to other persons or bodies.[11] Section 15(5) and (6) confers education and prevention functions on IBAC. Section 15(5)-(7) states:
[11]IBAC Act s 15(2)-(3).

(5)The IBAC has education and prevention functions for the purpose of achieving the objects of this Act.
(6)Without limiting the generality of subsection (5), the IBAC has the following functions under subsection (5)—
(a)to examine systems and practices in the public sector and public sector legislation;
(b)to provide information to, consult with and make recommendations to, the public sector;
(c)to assist the public sector to increase capacity to prevent corrupt conduct and police personnel misconduct by providing advice, training and education services;
(d)to provide information and education services to the community about the detrimental effects of corruption on public administration and ways in which to assist in preventing corrupt conduct;
(e)to provide information and education services to members of police personnel and the community about police personnel conduct, including the detrimental effects of police personnel misconduct and ways in which to assist in preventing police personnel misconduct;
(f)to publish information on ways to prevent corrupt conduct and police personnel misconduct.

(7)For the purpose of achieving the objects of this Act, the IBAC has the following functions –
(a)to receive information, conduct research and collect intelligence, and to use that information, research and intelligence in support of investigations;
(b)to report on, and make recommendations as a result of, the performance of its duties and functions.

Investigations by IBAC

IBAC may conduct investigations in accordance with the powers and procedures contained in Part 3. Section 59A empowers it to conduct a preliminary inquiry for the purpose of determining whether to dismiss, refer or investigate a complaint or a notification to it. If IBAC suspects on reasonable grounds that the conduct about which it has received a complaint, or been notified of, constitutes corrupt conduct, then it may conduct an investigation in performance of its corrupt conduct investigative functions.[12] IBAC may also conduct an investigation on its own motion.[13]
[12]IBAC Act s 60.
[13]IBAC Act s 60(1)(c).

Section 59(1) and (2) permits IBAC to notify the person who made a complaint of the action that it takes as a result of that complaint, and it must do so in the case of a public interest complaint. However, IBAC must not so notify the complainant if it considers that notifying them would not be in the public interest or in the interests of justice, would put a person’s safety at risk, would cause unreasonable damage to a person’s reputation, would prejudice an investigation under the Act, or by Victoria Police or the person or body to which the referral was made, or would otherwise contravene any applicable statutory secrecy obligations or would involve the unreasonable disclosure of information relating to any person’s personal affairs.[14]
[14]IBAC Act s 59(4).

IBAC may also provide information about the commencement, conduct or results of an investigation, to the relevant principal officer, the responsible Minister or the Premier, but again, not if it considers that the provision of the information would put a person’s safety at risk, would prejudice an investigation or would lead to the identification of a person who has made an assessable disclosure.[15]
[15]IBAC Act s 163(4)-(5).

Gathering information

Parts 4, 5 and 6 of the IBAC Act provide IBAC with powers to gather information for the purposes of the investigation. IBAC may issue a witness summons requiring a person to attend to give evidence at an examination or to produce documents or other things to IBAC or requiring the person to do both.[16] A person who is examined must be provided with a copy of the video recording of their examination and any transcript created of it, unless IBAC considers on reasonable grounds that it would prejudice an investigation.[17] There is no provision allowing a person to obtain the transcript of other witnesses’ examinations. Subject to IBAC’s direction to the contrary, a witness may be represented at an examination by an Australian legal practitioner.[18]
[16]IBAC Act s 120.
[17]IBAC Act s 133(4).
[18]IBAC Act s 127.

Section 117 creates the default position that witness examinations are to be held in private, and not open to the public, unless IBAC considers on reasonable grounds that it is in the public interest to hold a public examination and that a public examination can be held without causing unreasonable damage to a person’s reputation, safety or wellbeing. It is an offence for a person, other than an IBAC Officer or a Victorian Inspectorate Officer, to be present at an examination that is not open to the public except in limited circumstances.[19]
[19]IBAC Act s 118.

Sections 116 and 119 deal with procedures for examinations and state:

116 Conduct of examinations
In holding an examination, the IBAC—
(a) is not bound by the rules of evidence; and
(b) subject to any requirements under this Division, may regulate the procedure of the examination as the IBAC considers appropriate.

…
119 The IBAC may give directions
(1) The IBAC may give directions as to the persons who—
(a) may be present during an examination or part of an examination;
(b) must not be present during an examination or part of an examination.

(1A) For the purposes of subsection (1), a direction under subsection (1) may provide that a person may be remotely present during an examination or part of an examination.
(2) A direction under subsection (1) must not prevent the presence, when evidence is being taken at an examination, of—
(a) subject to section 127(2), an Australian legal practitioner representing a person attending in accordance with a witness summons; or
(b) an IBAC Officer; or
(c)a Victorian Inspectorate Officer; or
(d) any other person authorised to be present under this Act or any other law.

The Act protects IBAC officers and specified other persons engaged by IBAC, who have taken an oath or made an affirmation under s 37, from being compelled to disclose information received in the course of their engagement.[20] These protected persons cannot be compelled to disclose any matter or thing of which they have knowledge as a result of the performance of their duties and functions or the exercise of their powers, unless IBAC certifies in writing that the giving of evidence by the protected person is in the public interest.[21]
[20]IBAC Act ss 45, 50.
[21]IBAC Act s 50(2).

The Act provides protection for witnesses at IBAC, or persons who provided it with information, by providing that IBAC cannot be compelled to produce or allow inspection of a ‘protected document or other thing’ in civil or criminal proceedings, except in limited circumstances. A ‘protected document or other thing’ includes a document or thing, the production or inspection of which is likely to reveal the identity of, or endanger the safety of, a person who has appeared as a witness in an examination or provided IBAC with information relating to an investigation, to place an investigation at risk, or to have other adverse consequences.[22] IBAC officers must not disclose any information acquired in the performance of their duties, functions and powers, subject to limited exceptions.[23]
[22]IBAC Act s 46.
[23]IBAC Act s 40.

In any legal proceeding, other than a criminal proceeding, protected persons are not compellable to produce or permit the inspection of any document or other thing that they have created, or that has come into their possession or control in the performance of their duties and functions or the exercise of their powers, if IBAC certifies in writing that in its opinion the document or thing is a protected document or other thing.[24] If, in a criminal proceeding, a subpoena is issued for a protected person to produce any such document and they object to doing so, they must give notice to each party to the criminal proceeding of the objection and apply to the court hearing the criminal proceeding to determine the application by confidential affidavit, in closed court, or at a hearing excluding one or more of the parties or by a combination of those methods.[25] If the court is not satisfied that the proposed method is not in the public interest, it may determine the application by one of the other methods, taking into account specified considerations. The Court must take into account the public interest in protecting the confidentiality of any secret investigative method used by IBAC, the Victorian Inspectorate, a law enforcement agency or an integrity agency and documents and other things in the possession or control of IBAC. It must also take into account the extent to which the method of determining the objection which is the subject of the application may disclose information that may reveal the identity of informers, witnesses, persons who have provided information, persons whose name appears in evidence or information provided to IBAC or who have been the subject of an investigation, or would put any of those person’s safety at risk, or would place at risk an ongoing investigation by the Victorian Inspectorate, a law enforcement agency or an integrity body, or would place at risk the disclosure of a secret investigative method used by IBAC, the Victorian Inspectorate, a law enforcement agency or an integrity agency, or would otherwise not be in the public interest to disclose.[26] The court may appoint a special counsel to represent the interests of a party to the proceeding at the hearing.[27]
[24]IBAC Act s 47(2).
[25]IBAC Act s 48(2)(b).
[26]IBAC Act s 48(3)-(4).
[27]IBAC Act s 49.

Section 163(1) and (2) empowers IBAC to provide a complainant with information about the results of an investigation and it must do so if the investigation relates to a corrupt conduct complaint or police personnel complaint in relation to a police officer or protective services officer or a protected disclosure complaint. However, IBAC is prohibited from disclosing information under those sections if it considers that it would not be in the public interest or in the interests of justice; would put a person’s safety at risk; would cause unreasonable damage to a person’s reputation; would prejudice an investigation under this Act or an investigation by Victoria Police; would be likely to lead to the disclosure of any secret investigative method used by IBAC or police personnel; or would otherwise contravene any applicable statutory secrecy obligations or would involve the unreasonable disclosure of information relating to the personal affairs of any person.[28] Information given to a complainant under s 163(1) or (2) must include a written statement advising that it is an offence under s 184 to disclose the information.[29] It is an offence for a person to disclose information that it receives from IBAC under ss 59 or 163, subject to certain exceptions.[30]
[28]IBAC Act s 163(4).
[29]IBAC Act s 163(8).
[30]IBAC Act s 184.

Section 184 creates the crime of disclosing the taking of specified actions, being IBAC’s investigation of a complaint or notification, or the referral of the complaint or notification, of which the person has been notified under s 59(1) or (2), except in specified circumstances.[31] It also creates a crime if a complainant who receives information under s 163(1) or (2), which, as mentioned, deals with notification of a complainant of the commencement, conduct or results of an investigation, discloses that information except in specified circumstances.[32] A person who receives such information in any of the circumstances specified in s 184(5) commits a crime if they disclose that information except in the circumstances specified in that subsection.[33] Any person who receives information referred to in s 163(1)-(3), other than a person referred to in subsection (3), commits a crime if they disclose that information except in the circumstances specified in s 184(5).[34]
[31]IBAC Act s 184(1).
[32]IBAC Act s 184(2).
[33]IBAC Act s 184(3).
[34]IBAC Act s 184(4).

Special reports

Part 7 of the IBAC Act provides for IBAC’s recommendations, actions and reports. Under s 159, IBAC may, at any time, in relation to a matter that arises out of an investigation, make recommendations about any action that it considers should be taken by a relevant principal officer, the responsible Minister or the Premier.[35] After an investigation has been conducted, IBAC may transmit a special report to each House of Parliament under s 162 or take any other steps contained in s 164.
[35]IBAC Act s 3(1) (definition of ‘relevant principal officer’).

Section 162 provides for special reports and requires IBAC to provide persons who will be the subject of comment or opinion which is adverse to them in a special report with a reasonable opportunity to respond to the adverse material. IBAC sought to comply with its obligations under s 162(3), which it described as the ‘natural justice process’, by providing the Draft Report to persons including AB and CD. Section 162 states:

162 Special reports
(1)The IBAC may at any time cause a report to be transmitted to each House of the Parliament on any matter relating to the performance of its duties and functions.
(2)If the IBAC intends to include in a report under this section adverse findings about a public body, the IBAC must give the relevant principal officer of that public body an opportunity to respond to the adverse material and fairly set out each element of the response in its report.
(3)If the IBAC intends to include in a report under this section a comment or an opinion which is adverse to any person, the IBAC must first provide the person a reasonable opportunity to respond to the adverse material and fairly set out each element of the response in its report.
(4)If the IBAC intends to include in a report under this section a comment or an opinion about any person which is not adverse to the person, the IBAC must first provide that person with the relevant material in relation to which the IBAC intends to name that person.
(5)If the IBAC is aware of a criminal investigation or any criminal proceedings or other legal proceedings in relation to a matter or person to be included in a report under this section, the IBAC must not include in the report any information which would prejudice the criminal investigation, criminal proceedings or other legal proceedings.
(6)The IBAC must not include in a report under this section a statement as to—
(a)a finding or an opinion that a specified person is guilty of or has committed, is committing or is about to commit, any criminal offence or disciplinary offence; or
(b)a recommendation that a specified person be, or an opinion that a specified person should be, prosecuted for a criminal offence or disciplinary offence.

(7)The IBAC must not include in a report under this section any information that would identify any person who is not the subject of any adverse comment or opinion unless the IBAC—
(a)is satisfied that it is necessary or desirable to do so in the public interest; and
(b)is satisfied that it will not cause unreasonable damage to the person’s reputation, safety or wellbeing; and
(c)states in the report that the person is not the subject of any adverse comment or opinion.

(8)The IBAC must not include in a report under this section any information that—
(a)discloses the identity of a person to whom, or in respect of whom, a direction has been given under—
(i) Division 1 of Part 9 of this Act;
(ii) Part 5 of the Victoria Police Act 2013; or
(b)is likely to lead to the identification of a person who has made an assessable disclosure.

(9)However, the IBAC may in a report under this section include information to which section 53(2)(a), (c) or (d) of the Public Interest Disclosures Act 2012 applies.
(10)The clerk of each House of the Parliament must cause the report to be laid before the House of the Parliament on the day on which it is received or on the next sitting day of that House of the Parliament.
(11)If the IBAC proposes to transmit a report to the Parliament on a day on which neither House of the Parliament is actually sitting, the IBAC must—
(a)give one business day’s notice of intention to do so to the clerk of each House of the Parliament; and
(b)give the report to the clerk of each House of the Parliament on the day indicated in the notice; and
(c)publish the report on the IBAC's Internet website as soon as practicable after giving it to the clerks.

(12) The clerk of each House of the Parliament must—
(a)notify each member of the House of the Parliament of the receipt of the notice under subsection (11)(a) on the same day that the clerk receives that notice; and
(b)give a copy of the report to each member of the House of the Parliament as soon as practicable after the report is received under subsection (11)(b); and
(c)cause the report to be laid before the House of the Parliament on the next sitting day of the House of the Parliament.

(13)A report that is given to the clerks under subsection (11)(b) is taken to have been published by order, or under the authority, of the Houses of the Parliament.
(14)The publication of a report by the IBAC under subsection (11)(c) is absolutely privileged and the provisions of sections 73 and 74 of the Constitution Act 1975 and any other enactment or rule of law relating to the publication of the proceedings of the Parliament apply to and in relation to the publication of the report as if it were a document to which those sections applied and had been published by the Government Printer under the authority of the Parliament.

A person who receives a proposed IBAC report is prohibited from disclosing any of the information contained in it, subject to certain exceptions.[36]
[36]IBAC Act s 166; Transcript of Proceedings (Supreme Court of Victoria, S ECI 2022 00229, Ginnane J, 4 and 18 March 2022) 123-4 (‘T’).

The Draft Report

IBAC prepared a draft special report for Operation [redacted] containing its findings and recommendations. The Draft Report contains [redacted]. The plaintiffs’ claims for judicial review remedies mainly concern section 5: ‘[redacted]’.[37]
[37]T 58.

The introduction to the Draft Report states that [redacted].

[Redacted].

[Redacted].

[Redacted].

[Redacted].

[Redacted].

[Redacted].

[Redacted].

[Redacted].

[Redacted].

[Redacted].

[Redacted].

[Redacted].

[Redacted].

[Redacted].

[Redacted].

[Redacted].

[Redacted].

[Redacted].

[Redacted].

[Redacted].

[Redacted].

[Redacted].

[Redacted].

[Redacted].

The claimed adverse comments or opinions

The plaintiffs contended that section 5 of the Draft Report contained a number of conclusions which were adverse to their reputations. IBAC accepted that based on [redacted], the Draft Report contained comments and opinions that were adverse to AB and CD, such as:[38]

[Redacted].

[38]Defendant’s Outline of Submissions dated 16 February 2022 (‘Defendant’s Outline of Submissions’) [26].

The plaintiffs’ solicitor made an affidavit about the Draft Report describing conclusions, comments or opinions which were considered to be adverse to them and to which they had not been given an opportunity to respond.[39] He stated that the Draft Report contained a large number of factual assertions based on witness evidence which were not in all cases attributed to a named person, with in some cases the name being redacted. In many instances only brief selected comments by the witness were cited. [Redacted].
[39]First Borenstein Affidavit, [27]-[46].

[Redacted].

The solicitor stated that he had been informed by AB that at no time was he or CD informed that IBAC was preparing the Draft Report nor given any opportunity to test the evidence referred to by cross-examination or even to be present when this evidence was taken by IBAC.[40]
[40]First Borenstein Affidavit, [29].

The solicitor was present on 4 and 5 November 2020 during AB’s witness examination and said that AB was not asked to respond to any of the evidence or materials upon which the Draft Report relied about [redacted] upon which the Draft Report expressed opinions adverse to them.

The plaintiffs’ solicitor, based on AB’s instructions, described the information AB and CD would have provided IBAC about the matters it was investigating if they had been given the opportunity. [Redacted].

The solicitor detailed matters referred to in the Draft Report, which he said were not put to AB during his witness examination, including the following. [Redacted].

[Redacted].

The events recorded in section 4.2 of the Draft Report, [redacted], were not raised with AB in his examination to allow him to answer the imputations against CD made in the Draft Report. He could not respond now because no specifics of the alleged events, including the names of the persons involved, had been provided. Similarly, he could not respond to the following paragraph concerning this incident:

[Redacted].

The solicitor also referred to section 5.1 of the Draft Report, where IBAC described the evidence on which it based its conclusions. The solicitor described this evidence as being all from management’s side. The plaintiffs were not informed of this evidence and given an opportunity to respond to it. None of it was put to AB in his examination and AB and CD were still unaware of the identity of the witnesses on whose evidence IBAC relied and were therefore unable to include in any response material which might question the veracity of that evidence. [Redacted].

The solicitor contended that the ‘vice’ in IBAC’s unqualified acceptance of the management evidence appeared in its references to two reports. [Redacted].

[Redacted]. Neither AB nor CD were given prior notice by IBAC that it proposed to make use of the two reports and neither were given an opportunity to provide evidence about the matters they canvassed, or the circumstances in which they were written, so as to provide context to their conclusions.

The solicitor stated that the Draft Report’s treatment in section 5.2 [redacted] also suffered from the vice of reliance on one sided evidence from unidentified witnesses, none of which was put to AB. [Redacted].

[Redacted].

[Redacted].

Grounds 1 and 2: The plaintiffs were denied natural justice during the preparation of the Draft Report
Plaintiffs’ submissions on grounds 1 and 2

The plaintiffs submitted that the Draft Report contained adverse findings and adverse comments or opinions about them. Therefore, IBAC was obliged to accord them natural justice in the preparation of the Draft Report, but it did not do so.

The plaintiffs described the preparation of the Draft Report as containing two stages, being the information gathering process, and the response process once the report had been drafted and provided to affected persons. IBAC had to provide them with natural justice at both stages. The plaintiffs relied on Mason CJ, Deane and McHugh JJ’s statement in Annetts v McCann (‘Annetts’) that:[41]

[i]t can now be taken as settled that, when a statute confers power upon a public official to destroy, defeat or prejudice a person’s rights, interests or legitimate expectations, the rules of natural justice regulate the exercise of that power unless they are excluded by plain words of necessary intendment.

[41](1990) 170 CLR 596 (‘Annetts’), 598 (citations omitted).

Mason CJ, Deane and McHugh JJ in Annetts,[42] referring to the statements of Dixon CJ and Webb J in Commissioner of Police v Tanos,[43] described what legislation must contain in order to demonstrate an intention to exclude natural justice in the exercise of a statutory power as follows:[44]

…that an intention on the part of the legislature to exclude the rules of natural justice was not to be assumed nor spelled out from ‘indirect references, uncertain inferences or equivocal considerations’. Nor is such an intention to be inferred from the presence in the statute of rights which are commensurate with some of the rules of natural justice.

[42]Ibid.

[43](1958) 98 CLR 383, 396.

[44]Annetts, 598.

The plaintiffs contended that the Act did not expressly exclude natural justice at either stage as it contained no ‘clear manifestation of a contrary statutory intention’.[45]
[45]Kioa v West (1985) 159 CLR 550, 585 (Mason J).

The plaintiffs described s 162(3) as conferring an additional right, which entitled them to comment on IBAC’s provisional views contained in the Draft Report. But their right to natural justice was not so confined because by the time the Draft Report was prepared, IBAC had formed opinions and the opportunity to give evidence and call witnesses had passed. Natural justice gave them a right to be heard at a time when the decision-maker was open to persuasion and not to be left to seek to dissuade IBAC of its adverse prima facie conclusions, a task that may have been possible during his examination, and before those conclusions were reached.

Alternatively, if IBAC was not required to provide natural justice to them at the information gathering stage, then s 162(3) should be interpreted as requiring the provision of a broader version or content of natural justice once the Draft Report was completed.

AB was first made aware of Operation [redacted] on 6 December 2021, when he received the letter from IBAC’s senior lawyer and a redacted copy of the Draft Report. Prior to that, IBAC had not notified the plaintiffs that it was undertaking a wide ranging psycho-social behavioural study into [redacted] culture, and at no point was AB, or any other representative of CD, questioned about that culture or asked to address it.[46] This was despite AB being summonsed and questioned by IBAC for two days as part of the investigation. Because the plaintiffs were not given notice of the investigation, they could not seek the exercise of IBAC’s discretion under s 119 to allow them to attend the examination of other witnesses and seek to cross-examine them. They do not know if they would have exercised that right because they were not provided with the transcripts of other witnesses’ evidence.
[46]Plaintiffs’ Outline of Submissions in Reply dated 28 February 2022, [13], [76] (‘Plaintiffs’ Outline of Submissions in Reply’).

To comply with the requirements of natural justice in the investigation stage, IBAC should have notified AB and CD of what Operation [redacted] was investigating; should have provided them with all relevant materials supporting any allegations made against them; should have given them the opportunity to provide evidence about matters being investigated and should have permitted them to attend the examination of witnesses and to apply to cross-examine them. They relied on the proposition that if a right to be heard is worth anything, it must carry with it the right to know the case that has to be met.[47] They did not suggest that IBAC should provide them with access to ‘an open file’, but by not giving them that notice and those materials, IBAC did not provide them with an opportunity to address the allegations and provide supporting material before IBAC made adverse findings in the Draft Report. As the special report was being prepared for the purposes of education and prevention, natural justice required IBAC to provide them with an opportunity to test the evidence that underpinned the adverse findings made in the Draft Report.
[47]Mark Aronson, Matthew Groves and Greg Weeks, Judicial Review of Administrative Action and Government Liability (Thomson Reuters, 7^th ed, 2022) 517, citing Lord Denning in Kanda v Government of Malaya [1962] AC 322, 337.

The plaintiffs’ second point was again based on IBAC’s failure to provide them with the transcripts of other witnesses’ private examinations and other documents and reports cited and relied upon by IBAC in making adverse findings about them. That prevented them from assessing and challenging the credibility of the unidentified witnesses. Because of that, IBAC should re-consider whether to include such evidence in the special report. Similarly, IBAC had not given them other documents and reports relied on in the Draft Report so that they might respond to them. Because of that they were unable to provide IBAC with a response in accordance with s 162(3).

The provision of the transcripts of other witnesses’ examinations would have permitted the plaintiffs to address the parts of their evidence which was not extracted in the Draft Report; their credibility and reasons why their evidence should not be accepted; and any context which bore on that evidence. Witnesses will differ in their perceptions of events, particularly in addressing workplace culture. [Redacted].

The plaintiffs’ third point, which was related to the second, was that they had been denied the important right to cross-examine witnesses who had given evidence to IBAC, because:[48]

[w]hen the credit of a witness is important to a determination as to whether certain events were as reported and as to the colour and importance of particular happenings, conversations or events, procedural fairness may require the investigator to permit cross examination.

[48]Edwardes v Kyle (1995) 15 WAR 302, 317, citing City of Brighton v Selpam Pty Ltd [1987] VR 54, 61 (Vincent J).

The plaintiffs also argued that IBAC’s failure to give them an opportunity to call their own witnesses prejudiced their ability to respond to the Draft Report in a manner that would dissuade IBAC from maintaining its draft conclusions. AB had been precluded from speaking with other persons employed by CD who could have assisted him to prepare his response.

The plaintiffs argued that the evidence relied upon in the Draft Report to support adverse findings against them was not put to AB in his witness examination.

In support of its entitlement to natural justice during the investigation, the plaintiffs relied upon the High Court’s decision in National Companies and Securities Commission v News Corporation Limited (‘News Corporation’),[49] in which Gibbs CJ stated that:[50]

… It is hardly likely that at the hearing the Commission will fail to call witnesses from the respondent companies, and since the Commission has indicated that such witnesses may be represented by counsel, who may re-examine them, the respondents’ case will in all probability be made known to the Commission during the course of the hearing. Further, when the Commission said that it would give the respondents an opportunity to be heard, it must have meant a proper opportunity, and there is no reason to think that the Commission will not give to the respondents adequate notice of any adverse conclusion which it has tentatively reached, or of any criticism which it tentatively proposes to make, or that it will not listen with an open mind to whatever material is then put before it by the respondents and give full weight to such material. Having regard to the nature of the hearing, it seems to me that what the Commission had proposed is all that fairness requires.

[49](1984) 156 CLR 296 (‘News Corporation’).

[50]Ibid 316. The plaintiffs also referred to the judgment of Mason, Wilson and Dawson JJ at 322.

The plaintiffs submitted that the content of the natural justice to which they were entitled should reflect that IBAC was performing its education and prevention functions, and not investigating corrupt or criminal conduct. Confidentiality was less important when performing such functions. But to perform them properly and to ensure the intellectual merit and utility of its special report, IBAC needed to receive all relevant evidence [redacted]. It needed to fairly and accurately identify the circumstances and causes of the [redacted]. Otherwise the report was of no value.

The plaintiffs submitted that the statutory restrictions on which IBAC relied did not justify IBAC’s refusal to provide them with documents and information or preventing their participation in witness examinations. Section 117 gave IBAC a discretion to hold witness examinations in public, and s 119 enabled it to decide who could be present during an examination. Section 116 gave IBAC broad powers to decide its procedures in holding examinations.

The plaintiffs disputed IBAC’s claims that the fear of identification by witnesses or interviewees justified limiting the plaintiffs’ participation in the investigation or providing information to them. [Redacted], bearing in mind its education and prevention purpose. [Redacted]. The plaintiffs relied on the withdrawal of the confidentiality notice and the naming of some witnesses in the Draft Report as indicating that IBAC no longer considered it necessary to protect the investigation, its evidence or the identity of the persons who had given it.

The present situation differed from that in Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (‘VEAL’)[51] upon which IBAC relied. First, IBAC has extensive coercive powers to gather information and compel witnesses to give evidence. It did not need to encourage witnesses to come forward and cooperate. Secondly, in VEAL the visa applicant was provided with a summary of the adverse letter which relayed the substance of the adverse evidence against him, but in this case nothing similar has occurred.
[51](2005) 225 CLR 88 (‘VEAL’).

The plaintiffs disputed IBAC’s submission that their proceeding was premature, arguing that if they did not raise the procedural fairness issues prior to the report being published, it would be too late as they had no right to see the final report prior to its publication. Once it was published, their reputations would be damaged and they would have no effective remedy or redress.[52]
[52]Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 (‘Ainsworth’); Plaintiffs’ Outline of Submissions in Reply, [32].

The plaintiffs argued that providing the natural justice rights they sought would not hamper IBAC’s performance of its functions, but would protect and enhance IBAC’s integrity.

IBAC’s submissions on grounds 1 and 2

IBAC’s case relied on the following propositions. First, it accepted that it was required to provide natural justice because of the potential consequences for the reputations of persons mentioned in the Draft Report. Secondly, that the IBAC Act addressed that issue by requiring that a person the subject of adverse comment or opinion be given a reasonable opportunity to respond to the adverse material. Thirdly, that it had discharged those obligations by providing the plaintiffs with the Draft Report for their response. Fourthly, the content of the plaintiffs’ claims for procedural fairness was fundamentally at odds with IBAC’s investigative and other functions, and more appropriate to the adversarial processes of a court proceeding.

IBAC argued that its obligations to provide the plaintiffs with natural justice arose when a draft report had been prepared. Section 162(3) was the Act’s expression of the content of the natural justice hearing rule. IBAC’s obligations arose:

(3)If the IBAC intends to include in a report under this section a comment or an opinion which is adverse to any person…

When IBAC formed that intention, it:

… must first provide the person a reasonable opportunity to respond to the adverse material and fairly set out each element of the response in its report.

IBAC relied on the sequence in which it performed its functions as establishing that it was not required to provide natural justice during the investigatory stage. First, IBAC commenced the investigation, with s 60(1) empowering it to conduct an investigation into corrupt conduct and s 15(2) defining its principal functions as including investigating corrupt conduct and s 15(5) and (6) conferring education and prevention functions. Secondly, IBAC conducted the investigation by gathering information using its powers in Parts 4 and 6, including the power to summons people to attend witness examinations. Thirdly, IBAC concluded the investigation and IBAC could submit a special report to each House of the Parliament. As the investigation stage of Operation [redacted] had concluded, IBAC proposes to transmit a special report to each House of the Parliament under s 162(1).

IBAC argued that the content of natural justice that it was required to provide depended on the circumstances, which included the statutory context, the nature of the inquiry and the interests at stake.[53]
[53]Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation (1963) 113 CLR 475, 504 (Kitto J).

IBAC also relied on the High Court’s decision in News Corporation.[54] That case concerned an investigation, including private hearings, conducted by the National Companies and Securities Commission to determine whether the Companies Act 1981 (Cth) had been breached in connection with the acquisition of shares in a company. The relevant legislation required the Commission at a hearing to observe the rules of natural justice.[55] News Corporation Ltd, which was one of the companies being investigated, argued that the rules of natural justice entitled it, and its legal representatives, to be present throughout the private hearings, to cross-examine witnesses, to give evidence in reply, and to make submissions before the Commission made any findings. The High Court rejected that argument because the rights claimed would frustrate the Commission’s performance of its statutory functions.[56] Gibbs CJ explained:[57]

[i]f the Commission were to accord to all the persons whose reputation might possibly be affected by the hearing a right to cross-examine the witnesses and call evidence as though they were in a court of law, the hearing might become so protracted as to render it practically futile. In these circumstances, with all respect, I find it quite impossible to say that the rules of natural justice require the Commission to proceed as though it were conducting a trial.

[54](1984) 156 CLR 296. IBAC also relied on Brooks v Easther [2017] TASFC 12 and Reece v Webber (2011) 192 FCR 254.

[55]National Companies and Securities Commission Act 1979 (Cth) s 38.

[56]News Corporation, 314 (Gibbs CJ), 323-4 (Mason, Wilson and Dawson JJ), 326 (Brennan J).

[57]Ibid 314.

Mason, Wilson and Dawson JJ stated:[58]

…when pursuing an investigation, it follows that the form of the hearing and the requirements of natural justice in respect of it will reflect that purpose.
…
There is considerable force in the Commission’s claim that to comply with the directions of the Federal Court [to allow News Corporation to be present and cross-examine witnesses in private examinations] would frustrate the purpose of the hearing. It is of the very nature of an investigation that the investigator proceeds to gather relevant information from as wide a range of sources as possible without the suspect looking over his shoulder all the time to see how the inquiry is going. For an investigator to disclose his hand prematurely will not only alert the suspect to the progress of the investigation but may well close off other sources of inquiry.

[58]Ibid 322, 323-4 (Mason, Wilson and Dawson JJ).

IBAC argued that the News Corporation decision showed that it was not too late at the Draft Report stage to provide the present plaintiffs with natural justice by giving them a right to respond to any adverse comments or opinions in it. In that regard Gibbs CJ stated:[59]

Whether the course proposed would place a heavy burden on the respondents depends of course on the circumstances. However, as common judicial experience shows, minds may remain open and impartial although they have given consideration to a matter and reached tentative conclusions upon it; and it will be enough in the present case if the respondents are given a fair opportunity to correct or contradict any relevant material prejudicial to them.

[59]Ibid 315-6 (citations omitted).

In opposition to the plaintiffs’ claims that they were entitled to see all the documents upon which IBAC’s conclusions were based, IBAC relied on Minister for Local Government v South Sydney City Council,[60] which concerned a challenge to a proposal to change local government boundaries. Mason P stated that fairness in administrative processes is not grafted to ‘the prism of adversarialism’[61] and that:[62]

… To conclude, as Talbot J appears to have done on one reading of his judgment, that an affected council is entitled to see and respond to any and every ‘adverse’ submission sent to the Commission is unsupported by principle or precedent and unworkable in practice. …
…
An obligation with such content cannot be accepted. It effectively converts the examination and report stage of the process into a full-blown adversarial trial (see Kioa v West (at 628–9)).

[60](2002) 55 NSWLR 381 (‘South Sydney City Council’).

[61]Ibid 437 [256] (Spigelman CJ and Ipp AJA agreeing).

[62]Ibid 435 [245], 436 [251].

IBAC argued that in determining what content of natural justice it was required to provide, the Act’s protection of the confidentiality of information was relevant. The Act was designed to secure the confidentiality of matters that arose during the investigation and the confidentiality of witnesses and persons who had assisted IBAC in its investigation. It recognised that the disclosure of information about an investigation may prejudice it and endanger people involved in it. That recognition was evident in the Act’s restriction on the disclosure of information about IBAC’s investigations or about those who assist them. The disclosure of information about the investigation was only permitted in limited circumstances. IBAC did not have to disclose all information collected in the investigation, or have an open file policy that would have ‘the effect of disclosing every submission or piece of evidence to an affected party’.[63] To adopt that approach would run counter to protecting the safety and welfare of persons who give IBAC information, protecting the integrity of the investigation and performing its statutory functions.
[63]Defendant’s Outline of Submissions [23], quoting Coutts v Close [2014] FCA 19, [114] (Griffiths J), quoting Minister for Local Government v South Sydney City Council (2002) 55 NSWLR 381.

The provision of natural justice did not require that IBAC provide the plaintiffs with the transcripts of all witness examinations or source documents, as that would reveal the identities of witnesses who had assisted IBAC. Witness examinations are usually held in private because witnesses often feared reprisal personally and professionally.[64] IBAC depends on persons providing them with confidential complaints and information. There is no common law right to cross-examine witnesses in tribunal hearings. A person could not disclose information received in a draft report.[65]
[64]See T 142; First [redacted] Affidavit, [7].
[65]IBAC Act s 166(1).

IBAC submitted that [redacted] for assisting it was sufficient reason not to disclose their identity, or the substance of the evidence they gave when examined. IBAC’s senior lawyer stated in her affidavit:[66]

[Redacted].

[66]First [redacted] Affidavit, [7].

IBAC submitted that the reasons for the withdrawal of the confidentiality notice had no bearing on its obligations to provide natural justice to the plaintiffs. The withdrawal meant that AB was free to talk about the fact that he had participated in an investigation, but it said nothing about AB’s right to receive other information.

IBAC also relied on the burdens it would bear if it had to provide persons, such as the plaintiffs, with witness examination transcripts and source documents. It would first have to review and redact transcripts and source documents and circulate them to persons potentially affected by their release, which would hamper its ability to discharge its statutory functions in a timely manner. Mason P described the consequences of such an obligation in South Sydney City Council as follows:[67]

[t]o posit a right for all ‘affected’ parties to see all of the ‘adverse’ submissions of all other persons putting in submissions would be unworkable, because it would lead to an infinite regression of counter-disputation.

[67](2002) 55 NSWLR 381, 439 [267].

If the plaintiffs make a response, IBAC will consider it and, if it does not accept the response, it will fairly set out each element of it in the special report. If it does accept the response it will correct or alter the report accordingly. That process completes IBAC’s obligations to accord natural justice.

IBAC submitted that the report served several purposes in addition to education and prevention. It was directed to exposing corrupt conduct, assisting in its prevention, and educating the public sector and the community about the detrimental effects of corrupt conduct.

Analysis of grounds 1 and 2

The first issue is whether the plaintiffs were entitled to natural justice during the preparation of the Draft Report and the investigation. The plaintiffs were concerned to avoid a report containing adverse findings about them being presented to Parliament and published, leaving as their only remedy the commencement of a court proceeding to seek a declaration of the report’s invalidity. This had occurred in Ainsworth, where Brennan J stated:[68]

… an obvious danger against which the rules of natural justice are designed to protect is the production and publication of a report that might damage a person's reputation leaving that person with no remedy save a prospect of persuading the Parliamentary Committee to re-examine the matter and express for itself a conclusion contradictory of the finding by the Commission. Even if the Parliamentary Committee rejects an adverse finding in a Commission report, that finding, having been published, may continue to inflict damage on the reputation.

[68]Ainsworth, 594 (Brennan J).

I accept the plaintiffs’ argument that as comments or opinions that IBAC includes in the special report may destroy, defeat or prejudice their reputations, the rules of natural justice regulate the exercise of IBAC’s power to investigate and to provide a special report to Parliament, unless they are excluded by plain words of necessary intendment. CD is a body corporate, but it also has an interest in protecting its reputation.

I do not consider that the Act excludes natural justice in respect of IBAC’s actions when conducting an investigation. The question that arises in respect of the plaintiffs’ first two grounds, rather is, what is the content of the natural justice that IBAC must provide during the investigation. In answering that question the statutory scheme is critical. As Brennan J stated in Kioa v West:[69]

the contents of natural justice range from a full-blown trial into nothingness.

[69]Kioa v West (1985) 159 CLR 550, 615, quoting G Johnson, ‘Natural Justice and Legitimate Expectation in Australia’ (1985) 15 Federal Law Review 39, 71.

The content of natural justice required in a particular case involving the exercise of statutory power will depend on the statutory context. This is especially the case with statutory investigations. As Brennan J, although finding it not necessary to decide the point, stated in News Corporation:[70]

…Once it is clear that it is no part of the Commission’s function to publish adverse findings, conclusions or evidence after a hearing of the kind proposed in the present case, it is unnecessary to consider what the rules of natural justice might require if such a publication were one of its functions. For my part, I should prefer to reserve consideration of that question until an appropriate case arises. At the forefront of the factors for consideration at that time will be the statutory provision which creates that function. If a statute were enacted to authorize an administrative agency to publish matter reflecting adversely upon the reputation of a person after an inquiry into that person’s conduct, the statute might be expected to specify the procedural protection which the agency would be required to accord to that person. When the limits of a statutory function are ascertained the interests which are apt to be affected by the performance of the function can be identified. Then it is possible for a court to say – in the absence of express statutory provision – what has to be done to be fair to those whose interests are apt to be affected by the performance of the function. The terms of the statute which creates the function, the nature of the function and the administrative framework in which the statute requires the function to be performed are material factors in determining what must be done to satisfy the requirements of natural justice: see F.A.I Insurances Ltd. v Winneke; Reg. v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group.

[70]News Corporation, 326.

As the High Court stated in VEAL:[71]

…the particular content of the obligation to accord procedural fairness was to be identified having regard not only to the particular provisions of the Act that regulated the Tribunal’s work but also to the scope and objects of the Act as a whole.

[71](2005) 225 CLR 88, 98 [23].

Similarly, the High Court stated in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs:[72]

It has long been established that the statutory framework within which a decision-maker exercises statutory power is of critical importance when considering what procedural fairness requires. It is also clear that the particular content to be given to the requirement to accord procedural fairness will depend upon the facts and circumstances of the particular case. As Kitto J said in Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation:
[T]he books are full of cases which illustrate both the impossibility of laying down a universally valid test by which to ascertain what may constitute such an opportunity [‘to correct or contradict any relevant statement prejudicial to their view’] in the infinite variety of circumstances that may exist, and the necessity of allowing full effect in every case to the particular statutory framework within which the proceeding takes place.

[72](2006) 228 CLR 152, 160–1 [26] (emphasis in original) (citations omitted). Compare Chief Commissioner of Police v Nikolic (2016) 338 ALR 683.

Immediately following the passage quoted, Kitto J stated that:[73]

By the statutory framework I mean the express and implied provisions of the relevant Act and the inferences of legislative intention to be drawn from the circumstances to which the Act was directed and from its subject-matter: cf. Ridge v. Baldwin. As Tucker L.J. said in Russell v. Duke of Norfolk, in a passage approved by the Privy Council in University of Ceylon v. Fernando, there are no words which are of universal application to every kind of inquiry and every kind of tribunal: ‘the requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject matter that is being dealt with, and so forth.’

[73]Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation (1963) 113 CLR 475, 504 (Kitto J), quoting Russell v Duke of Norfolk [1949] 1 All ER 109, 118 (citations omitted).

The Act modifies or restricts aspects of the common law hearing rule during the conduct of investigations. It contains a compromise between confidentiality of the investigative process and natural justice. As I have summarised previously, it modifies the right to be notified of the investigation,[74] the right to be present at witness examinations,[75] and the right to cross-examine witnesses. On the other hand, it does provide for witnesses being examined to be given the right to be represented by a lawyer and the right to obtain a video recording and transcript of the witnesses’ evidence.
[74]IBAC Act s 59.
[75]IBAC Act ss 118(1)(c), 119.

The Act leaves it to IBAC to determine how the investigation should proceed. IBAC may direct that persons can be present at a private examination, but it does not provide any general right of cross-examination. Nor does it contain any right to obtain documents or transcripts of other witnesses’ evidence. Those features suggest that the content of natural justice during the investigative stage does not include the rights that the plaintiffs seek.

An important aim of the Act is to protect the identity of persons who give evidence or provide information to IBAC and who may fear reprisal as a result. [Redacted]. The Act creates criminal offences for breaching confidentiality provisions, or disclosing information provided by IBAC. IBAC depends on the assistance of members of the public to discharge its functions.

In the case of a statutory investigation, especially a confidential investigation, the requirement to give natural justice is usually satisfied by giving persons affected a reasonable opportunity to respond to adverse comments or allegations about them before final conclusions are formed. It will usually be sufficient that the substance of the adverse comments or opinions is given to the person who may be affected and that they are given an opportunity to respond to them before a final report is completed. I consider that to be IBAC’s obligation during Operation [redacted]. The common law does not require that a confidential investigation be conducted like a trial. It does not require that notice be given to people who may be the subject of investigation, or that witnesses be provided with the transcripts of other witness examinations conducted in private hearings or documents relied on in preparing a report.

I do not consider that the provision of redacted witnesses’ transcripts in an attempt to remove identifying features is likely to be possible. In Operation [redacted], most of the witnesses are likely to have been employed by the same employer and many may be working in the same work place and will be known to each other, whether directly or indirectly. It will be difficult to avoid the risk that the provision of even redacted transcripts of witness examinations will enable the identification of persons who have assisted IBAC.

Investigations have particular features that often make much of the content of natural justice inapplicable. The allegations may not be formulated, or the persons they affect may not be known until well into the investigation. It may commence with nothing more than the notification of the complaint.[76] The investigators may not want to ‘show their hand’ and the details of the matter being investigated may only emerge during the investigation. The nature of an investigation makes natural justice most applicable at its final stages. These matters were discussed by Gibbs CJ in News Corporation in the following passage:[77]

Let it be assumed that as a result of the hearing the reputation of the respondents may in some way be affected. The question would then be what natural justice requires when a hearing, publicly announced but held in private, is held only for the purpose of investigation, the hearing being one in the course of which no issue can be determined, and as a result of which no right, interest or legitimate expectation can be affected, although the reputation of the respondents may be damaged. That question has to be answered in the light of a statutory framework which expressly recognizes the need for expedition and gives the Commission power to decide who may attend and who may intervene at the hearing. If the Commission were to accord to all the persons whose reputation might possibly be affected by the hearing a right to cross-examine the witnesses and call evidence as though they were in a court of law, the hearing might become so protracted as to render it practically futile. In these circumstances, with all respect, I find it quite impossible to say that the rules of natural justice require the Commission to proceed as though it were conducting a trial. It seems to me in no way unfair that, at a hearing of the kind which I have described, the respondents should not be entitled to cross-examine such witnesses as the Commission may call, or to call evidence of their own. If proceedings are subsequently brought in the Supreme Court against the respondents, they will of course be able to test by cross examination the evidence adduced, and to call evidence themselves.

[76]In re Pergamon Press Ltd [1971] 1 Ch 388, 401.

[77]News Corporation, 313-4 (Gibbs CJ).

Mason, Wilson and Dawson JJ explained the point as follows:[78]

It is of the very nature of an investigation that the investigator proceeds to gather relevant information from as wide a range of sources as possible without the suspect looking over his shoulder all the time to see how the inquiry is going. For an investigator to disclose his hand prematurely will not only alert the suspect to the progress of the investigation but may well close off other sources of inquiry. Of course, there comes a time in the usual run of cases when the investigator will seek explanations from the suspect himself and for that purpose will disclose the information that appears to require some comment. Having regard to the express statutory injunction of s. 38(1)(d) of the NCSC Act, it would clearly be a denial of natural justice if the Commission in the present hearing received evidence adverse to News Corporation without providing an opportunity to News Corporation to be heard. An effective examination of such persons would require that the substance of the adverse information received during the investigation be disclosed to them. Legal representation would be permitted to such witnesses with the opportunity for their further examination by counsel and for submissions to be made touching matters covered by the examination. There is no reason why the Commission should not welcome, time permitting, any request by News Corporation that further persons be called to give evidence. A hearing conducted along these lines, subject to what we have to say in a moment about the publication of the Commission’s views, would in our opinion be fair in all the circumstances.

[78]Ibid 323-4 (Mason, Wilson and Dawson J).

As I later decide in respect of the plaintiffs’ grounds 3 and 4, I do not consider that IBAC is obliged to provide the plaintiffs with the rights discussed in the last five sentences of the passage from the judgment of Gibbs CJ in the paragraph quoted immediately above. The purpose and content of the IBAC Act are quite different from the legislation considered in News Corporation.

I do not accept the plaintiffs’ submission that the Draft Report was only prepared in performance of IBAC’s education and prevention functions and that the greater need for confidentiality necessary in a report about corruption did not apply. Page 37 of the Draft Report does include the following passage:

[Redacted].

However, I do not accept that IBAC was just performing its education and prevention functions as Operation [redacted] commenced as an investigation under s 60 which concerns investigations into corrupt conduct. The processes by which IBAC may conclude an investigation are governed by Part 7 of the Act, ‘Recommendations, actions and reports’. They do not provide different conclusions to an investigation for education and prevention functions, than for the performance of other functions.

Conclusion on the plaintiffs’ grounds 1 and 2

I conclude that the plaintiffs were not denied natural justice during the investigation and preparation of the Draft Report. They had no right to be notified of the investigation, to receive the transcripts of other witnesses’ evidence or documents on which IBAC relied, to cross-examine other witnesses or to call witnesses. The question whether the plaintiffs have been given a reasonable opportunity to respond to the adverse material on which comments and opinions adverse to them in the Draft Report were based arises in respect of their third and fourth grounds, which I next consider.

Grounds 1 and 2 are not established.

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

The parties’ submissions about grounds 3 and 4 overlap to some extent with those made about grounds 1 and 2. So the summary of them involves some necessary repetition in order to understand the issues that grounds 3 and 4 raise.

Plaintiffs’ submissions

The plaintiffs submitted that, if IBAC was only required to provide them with natural justice by giving them the opportunity to respond under s 162(3), then at that stage they were entitled to all the rights of natural justice.

The plaintiffs argued that IBAC did not provide them with natural justice as it did not give them a reasonable opportunity to respond to the adverse material on which the Draft Report’s adverse comments or opinions about them were based. Section 162(3) was a minimum requirement. IBAC had not met its obligations by giving them the Draft Report. The reasonable opportunity IBAC was obliged to provide them had to be meaningful and substantive enabling them to challenge the evidence it relied on and to provide their own evidence directed at persuading IBAC that its provisional findings were incorrect. The adverse material which IBAC was obliged to provide them was everything of substance upon which it had based its adverse comments and opinions. That might include transcripts, documents, reports and witness statements. But that material had not been provided and the plaintiffs were expected to respond without first having access to it. The plaintiffs could not respond to unidentified, untested evidence, which had been gathered in secret from partisan sources when IBAC had not received their account of events. IBAC gave the plaintiffs the transcript of AB’s witness examination, and the plaintiffs have a ‘number of identified reports’ referred to in the Draft Report.[79] However, the plaintiffs believe that IBAC may have considered other documents and reports, which were unknown to them, without identifying them.
[79]T 90-1.

IBAC failed to give the plaintiffs an opportunity to call their own witnesses, including AB, to dissuade IBAC from maintaining its draft conclusions. Nor did it give them an opportunity to cross-examine the witnesses on whose evidence it relied for its adverse comments or opinions or to challenge their credibility on issues such [redacted].

IBAC failed to question AB during his private examination about the comments, opinions and conclusions concerning the plaintiffs that it expressed in the Draft Report. [Redacted]. If AB had been given the opportunity, he would have been able to give the ‘other side of the story’ on those issues. The plaintiffs had been left with the task of attempting to dissuade IBAC of its adverse draft conclusions, rather than allowing AB to answer IBAC’s questions on these issues before the Draft Report was prepared as should have occurred.

IBAC’s evidence that [redacted] was untested and not supported by objective evidence. Providing the plaintiffs with the complete witness transcripts would not expose those witnesses to risk of harm or undermine the objects of the Act. The report was not about criminal conduct or allegations of corruption, so concerns for witnesses’ safety should not be paramount. In fact, a number of people were named in section 4 of the Draft Report. In addition, IBAC had withdrawn the confidentiality notice and no restriction now existed on any person producing information that might identify a witness or a person who had assisted IBAC in Operation [redacted].[80]
[80]Exhibit GB-8 to the Second Borenstein Affidavit.

The plaintiffs had not been given a reasonable time in which to respond to the adverse material. Prior to IBAC providing CD with a copy of the Draft Report, AB was not permitted to speak with employees of CD who could have assisted him in preparing his response to the Draft Report.

IBAC’s submissions on grounds 3 and 4

IBAC argued that it had complied with the requirements of s 162(3) by providing the plaintiffs with the Draft Report which contained proposed adverse comments or opinions about them. It had also provided the exhibits put to AB in his witness examination. That was all that s 162(3) required.

The Draft Report contained sufficient information to give the plaintiffs a reasonable opportunity to respond to any adverse material contained in it. [Redacted].

The plaintiffs could provide affidavit evidence, but not require that witnesses be recalled to be cross-examined. They could raise their concerns about comments or opinions in the Draft Report in their response. IBAC would seriously consider the plaintiffs’ responses to the Draft Report with an open mind and respond constructively to them.

IBAC must fairly set out the plaintiffs’ responses in the final report. Without pre-empting what it would do, it could: (a) add information to the report about particular comments or opinions or the evidence supporting them; (b) remove or alter particular comments or opinions; or (c) provide a further draft of the report to the plaintiffs for their response with any such amendments. IBAC’s senior lawyer expanded on these possible steps and described IBAC’s usual natural justice process in relation to special reports. The senior lawyer stated that as at 16 February 2022, the date of her affidavit, she was considering all responses and deciding whether any amendments or deletions should be made to the Draft Report. Where a person raises matters in a response about adverse material in the draft report, IBAC will consider that response and determine whether it should amend or alter the draft report or any adverse opinion. There may be instances where the draft report changes as a result of a person’s response. If IBAC does not consider that the person’s response should give rise to a change to the draft report, each element of the person’s response will be set out as part of the final version of the draft report in accordance with s 162(2) and (3) of the Act.[81]
[81]Affidavit of [redacted] dated 16 February 2022, [17]-[21] (‘Second [redacted] Affidavit’).

But the plaintiffs’ proceeding was premature because IBAC had not yet received their responses. The time for the discharge of IBAC’s natural justice obligations has not yet expired.

IBAC argued that the provision of witness transcripts and other information sought by the plaintiffs would expose witnesses to the risk of reprisals, which was a fear expressed by some persons and noted in the Draft Report. IBAC relies on people providing information in order to perform its functions and the Act seeks to protect their safety and welfare and to protect the integrity of the information they provide. A senior lawyer at IBAC made an affidavit stating that [redacted]. The Draft Report stated:

[Redacted].

[Redacted].

IBAC argued that the plaintiffs had been given a reasonable time to respond to the Draft Report, which is forty pages in length. The initial time was extended.

Analysis of grounds 3 and 4
What is a ‘reasonable opportunity to respond’ within the meaning of s 162(3) of the IBAC Act?

Section 162(3) contains Parliament’s statement of the contents of natural justice that is to be given at the draft report stage when the report contains adverse comments or opinions.[82] The opening words of s 162(3), ‘[i]f the IBAC intends to include in a report…’, suggest that once IBAC has formed the intention to include adverse comments or opinions about a person in its special report, its natural justice obligations are enlivened.
[82]Kioa v West (1985) 159 CLR 550, 584 (Mason J).

In my opinion, on the ordinary meaning of the words, the ‘adverse material’ referred to in s 162(3) means the material upon which IBAC’s adverse comments or opinions contained in the Draft Report were based.[83]
[83]Macquarie Dictionary (8^th ed, 2020) ‘material’ (def 5).

Section 162 deals in different ways with the inclusion of findings, comments or opinions in special reports. Section 162(2) refers to ‘adverse findings’ about a public body, which through its principal officer must be given a reasonable opportunity to respond to the adverse material. Section 162(3) requires that when IBAC intends to include a comment or opinion which is adverse to any person, it must provide them with a reasonable opportunity to respond. In both cases IBAC must fairly set out each element of the response in its report. Section 162(4) requires IBAC, before including in a report a comment or opinion about any person which is not adverse to that person, to ‘first provide that person with the relevant material in relation to which the IBAC intends to name that person’.

Section 162 also contains further instances where the Act requires aspects of investigations to be kept confidential. Section 162(7) provides that IBAC must not include in a special report any information that would identify any person who is not the subject of any adverse comment or opinion unless satisfied that it is necessary or desirable to do so in the public interest, that it will not cause unreasonable damage to the person’s reputation, safety or wellbeing and that the report states that the person is not the subject of any adverse comment or opinion. Section 162(8) provides that IBAC must not include in a special report any information that discloses the identity of a person to whom, or in respect of whom, a direction has been given under Division 1 of Part 9 of the Act, concerning alcohol and drug testing of IBAC officers, or under Part 5 of the Victoria Police Act 2013, concerning alcohol and drug testing, or is likely to lead to the identification of a person who has made an assessable disclosure.

Section 162(3) does not require that a draft report be provided to persons about whom adverse comments and opinions are made but I accept that the provision of a draft report is one way of giving a reasonable opportunity to respond to the adverse material on which those adverse comments and opinions are based. There are other ways that a reasonable opportunity to respond could be provided. But the provision of a draft report appears to be anticipated or assumed as s 166 places restrictions on the disclosure of information by persons who have been provided with the proposed report, presumably as part of the s 162(3) natural justice process.

At common law the requirement to accord natural justice to a person who may be detrimentally affected by adverse comments in a confidential report or similar document, which is credible, relevant or significant,[84] is often satisfied by providing them with the substance or gravamen of the allegations. I consider that approach applies to the obligations contained in s 162(3) and that it is sufficient that IBAC provides the plaintiffs with the substance or gravamen of the adverse material. The two cases to which I next refer are examples of that line of authority which accepts that the nature of confidential investigations may permit a limited content of natural justice to be provided. The first is Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs,[85] which concerned an adverse letter about an applicant for a protection visa sent to the Department and provided to the decision-maker and, on review, to the Refugee Review Tribunal, but not to the applicant. The Tribunal stated that it had been unable to test the claims made in the letter and therefore gave it no weight. The High Court decided that the Tribunal failed to accord the applicant procedural fairness by not informing him of the substance of the allegations made in the letter before reaching its decision. However, the Tribunal was not required to provide a copy of the letter to the applicant or to disclose any information that may have revealed the identity of the author. The Court explained that conclusion in the following passage:[86]

It follows from this second proposition that the steps the Tribunal was bound to take in order to afford procedural fairness are not necessarily to be identified with the steps that should be taken by a court deciding a matter by adversarial procedures.
…
The appellant submitted that procedural fairness further required that he be given the letter because, if he did not know who had written the letter, one obvious form of answer to the allegations made in it would be denied to him. He could not say that the author of the letter was not to be believed. That is, he could not attack the credibility of the informer unless he knew who the informer was.
So much may readily be accepted. But it by no means follows that the Tribunal was bound to give the appellant a copy of the letter, or tell him who had sent, or even tell him that the information had been sent in written form. To give the appellant a copy of the letter or tell him who wrote it would give no significance to the public interest in the proper administration of the Act which, as pointed out earlier, required that those entitled to a visa be granted one and those not entitled be refused. It is in aid of that important public interest that, so far as possible, there should be no impediment to the giving of information to authorities about claims that are made for visas. That public interest, and the need to accord procedural fairness to the appellant, could be accommodated. They were to be accommodated, in this case, by the Tribunal telling the appellant what was the substance of the allegations made in the letter and asking him to respond to those allegations. How the allegations had been given to the Tribunal was not important. No doubt the appellant’s response to the allegations would then have to be considered by the Tribunal in light of the fact that the credibility of the person who made the allegations could not be tested. And that may well leave the Tribunal in a position where it could not decide whether the allegations made had substance. But the procedure outlined would be fair to the appellant and it would be a procedure which accommodated what Brennan J described in Kioa as the ‘problem of confidentiality’. Although it may be accepted that the Tribunal sought to act fairly, the procedure it in fact adopted was not fair.

[84]VEAL, 96 [17].

[85](2005) 225 CLR 88.

[86]Ibid [24], [28]-[29].

The plaintiffs sought to distinguish VEAL, but it is an example of a compromise between natural justice and confidentiality that has relevance in this case. The fact that IBAC has wide powers of investigation not possessed by the decision-maker in VEAL does not diminish the importance of it being able to assure confidentiality to persons who provide it with information which may assist it perform its functions.

A second case is Coutts v Close,[87] which concerned an investigation which led to the termination of a police officer’s employment. Griffiths J stated that the general requirement that adverse material which is credible, relevant and significant to the decision which may adversely affect a person be disclosed to that person did not require that a decision-maker must always disclose verbatim copies of the adverse material. In some circumstances, it was sufficient if the affected person was informed of the substance or gravamen of the issue.[88] Griffiths J decided that there were ‘good and substantial reasons for preserving confidentiality’[89] to redact the names of interviewees whose evidence was relied on. It was possible that such persons might have had a future working relationship with the applicant in the hierarchical structure of the police force.
[87][2014] FCA 19, [118].
[88]Ibid.
[89]Ibid [124].

In my opinion, when IBAC has conducted a confidential investigation with private examinations of witnesses, the requirements of s 162(3) are satisfied by the provision of the substance of the adverse material in a draft report to the affected persons. So are the requirements of common law natural justice which are that a person who may be the subject of adverse allegations or findings in a confidential statutory investigation must be given a reasonable opportunity to respond to them.

This conclusion is supported by the scheme of the Act which provides a default position of private examination of witnesses and contains provisions restricting the disclosure of information about the investigation and the identification of persons who have provided IBAC with information, given evidence or assisted an investigation. It provides for witnesses to receive a video recording of their own evidence but not of other witnesses’ examinations.

The conclusion is also supported by IBAC’s need to receive confidential information from the public in order to perform its functions. People who provided information to IBAC in Operation [redacted] expressed [redacted]. Such a fear may deter people from providing information to IBAC even if a basis for the fear could not be established by evidence as it involves an apprehension of what may happen. Nor is IBAC’s withdrawal of the confidentiality notice determinative. This case concerns the plaintiffs’ claims that they have been denied natural justice or their rights under s 162(3) because they have not been provided information and documents about the investigation and not given the opportunity to challenge IBAC’s evidence or provide their own evidence. The plaintiffs’ claims do not concern the information that AB possessed, but was prevented from disclosing, by the confidentiality notice. Other statutory restrictions preventing the disclosure of information continue to apply to the plaintiffs, for example, under s 166 which restricts them disclosing information contained in the Draft Report that IBAC provided them.

The restriction on AB speaking with other persons employed by CD, who could have assisted him to prepare his response, was a consequence of the investigation being confidential. Its effect on AB’s capacity to now provide a response to IBAC appears to have been lessened by the withdrawal of the confidentiality notice, although he is still subject to the restrictions contained in s 166.

The plaintiffs expressed concerns that the material upon which IBAC reached its conclusions in section 5 of the Draft Report was one sided [redacted]. The plaintiffs also argued that AB was not examined about material relied upon in section 5 of the Draft Report. [Redacted].

However, the Draft Report does contain a number of comments adverse to AB and CD which were not put to AB when he was examined. [Redacted].

It is possible that some these matters were not put to AB at the time of his examination because of the nature of an investigation, which can develop and broaden as it proceeds.

IBAC’s findings in section 4 of the Draft Report did rely on some of AB’s evidence given in his examination, [redacted].

[Redacted].

The right of a person facing adverse allegations to challenge those allegations and to present their side of the case is important to enable determination of disputed factual issues. Many cases involving serious allegations have two sides and both need to be heard in order to make accurate findings of fact.[90] As Megarry J stated:[91]

As everybody who has anything to do with the law well knows, the path of the law is strewn with examples of open and shut cases which, somehow, were not; of unanswerable charges which, in the event, were completely answered; of inexplicable conduct which was fully explained; of fixed and unalterable determinations that, by discussion, suffered a change. Nor are those with any knowledge of human nature who pause to think for a moment likely to underestimate the feelings of resentment of those who find that a decision against them has been made without their being afforded any opportunity to influence the course of events.

[90]John v Rees [1970] Ch 345, 402 (Megarry J). Cf the approach in Cox v Corruption and Crime Commission [2008] WASCA in respect of s 86 of the Corruption Crime and Misconduct Act 2003 (WA).

[91]Ibid.

IBAC might well have allowed AB to give oral evidence about the adverse comments or opinions it proposed to include in the Draft Report that concern him and CD. If it had it might have benefitted its Draft Report. However, in my opinion, it was not obliged to do so for the following reasons.

IBAC is not bound by the rule in Browne v Dunn[92] as s 116 provides that it is not bound by the rules of evidence. IBAC’s investigation is not an adversarial proceeding, but inquisitorial. IBAC, when conducting an investigation, is not in the position of the contradictor of the case being advanced by the plaintiffs.[93]
[92](1893) 6 R. 67.
[93]Re Ruddock; Ex parte Applicant S154/2002 (2003) 201 ALR 437, 449-50 [55]-[57] (Gummow and Heydon JJ).

The IBAC Act’s method of providing natural justice to persons in the plaintiffs’ position is contained in s 162(3) which gives AB and CD the right to respond to the adverse material on which the adverse comments and opinions contained in the Draft Report are based. They are being offered the opportunity to respond in writing and it may be that s 162(3) contemplates that the response will only take a written form. A written response may, in some circumstances, be more advantageous than the right to give oral evidence, which can be the subject of cross-examination, provided that the written response is properly considered. Although a chance to respond to allegations is a fundamental part of our justice system, that principle does not necessarily require the right to give oral evidence in a confidential investigation like Operation [redacted]. I accept that a written response will not enable the plaintiffs to test the credibility of the persons whose identities are not revealed. But as was suggested in a different context in VEAL, that fact should be taken into account when IBAC is deciding whether the allegations have substance. The argument that the Draft Report is one sided can be made in the plaintiffs’ response. IBAC must, as it has indicated that it will, consider the response and its effect on the Draft Report’s findings. If the special report does not contain a fair balance of views, it will carry less authority.

As I stated above, the provision of the right to make a written response to the adverse material on which the adverse comments and opinions about the plaintiffs in the Draft Report are based is to provide a reasonable opportunity to respond to the adverse material, as required by s 162(3) and by common law. It is sufficient that the substance of the material on which the adverse comments or opinions are based is provided. It is not the only way in which a reasonable opportunity to respond may be provided, but it is one reasonable way.

In my opinion, the Draft Report, particularly in section 5, does contain the substance of the adverse material upon which the adverse comments or opinions about the plaintiffs contained in it were based. [Redacted]. He was represented by senior counsel at his examination.

[Redacted].

[Redacted]. All of that adverse material was the basis for the conclusions in section 5 and the adverse comments and opinions about AB and CD contained in it.

The Draft Report does not give the names of all persons whose comments, opinions or evidence are quoted, but it does not have to do that to provide the substance of the allegations. Nor do AB and CD require the whole of those persons’ witness statements or examination transcripts to respond to the adverse material on which adverse comments or opinions are based. As I have previously accepted, the absence of witness transcripts may prevent AB and CD challenging the credibility of unnamed persons’ evidence, but the authorities to which I have referred accept that restricting credibility attacks may be a necessary consequence of confidential hearings or confidential investigations. However, when that restriction occurs, the decision-maker, or in this case IBAC, the investigator, in assessing the evidence and in preparing its final report, must take into account that the persons, in this case AB and CD, have not had the opportunity to challenge the credibility of particular evidence.

The plaintiffs can make submissions and provide documents and affidavits in their response. IBAC must fairly set out each element of the response in the final report. The Act requires that to occur, whether or not IBAC decides to accept the response. The plaintiffs will be able to state their view [redacted] and its causes and on the matters that were not put to AB in his examination. AB and CD can provide the ‘other side of the story’ in their response. If IBAC does not properly consider that response, the value of its report may be diminished.

I have concluded that IBAC can discharge its responsibilities by providing the plaintiffs with the opportunity to make a written response. But IBAC must bear in mind that this response, if made, may provide ‘the other side of the story’ which it may be yet to hear. It might have been simpler if it had recalled AB and put to him its proposed adverse comments and opinions about him and CD and invited him to respond orally before it completed its Draft Report. Be that as it may, it must consider the plaintiffs’ written response, if one is provided, as potentially containing the plaintiffs’ ‘other side of the story’, and demonstrate that it has properly considered it in its final report.

The Draft Report is provisional or incomplete because it does not contain AB’s and CD’s accounts of matters which have led IBAC to make to adverse comments or opinions about them. If the plaintiffs present affidavits or other evidence in their response that contradicts the adverse comments or opinions about them contained in the Draft Report, then IBAC will have to consider whether its draft opinions and findings can stand. It will have to take into account any additional material and reconsider its conclusions when it makes its final special report.

AB and CD have not yet provided their responses, but they have been given the opportunity to do so.

For the reasons I have given, I consider that right of response satisfies IBAC’s obligations under s 162(3) and to accord natural justice at common law. Accordingly grounds 3 and 4 are not established.

Conclusion

The plaintiffs have not established any of their grounds. The proceeding must be dismissed. I will hear the parties as to the appropriate orders to give effect to this judgment.

[2022] VSC 570

28 September 2022 (redacted judgment published 26 October 2022)