SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCI 2020 0071
| ROBERT OWEN BECKINGHAM | Applicant |
| v | |
| ALLISON BROWNE | Respondent |
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| JUDGES: | MAXWELL P, McLEISH and NIALL JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 3 August 2021 |
| DATE OF JUDGMENT: | 17 December 2021 |
| MEDIUM NEUTRAL CITATION: | [2021] VSCA 362 |
| JUDGMENT APPEALED FROM: | [2020] VSC 301 (John Dixon J) |
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ADMINISTRATIVE LAW – Appeal on question of law – Statutory notices – Statutory purpose – Anti-corruption investigation – Breach of confidentiality notices – Whether notices complied with statutory requirement – Whether notices valid – Notices invalid – Leave to appeal granted – Appeal allowed – Criminal Procedure Act 2009 s 272, Independent Broad-based Anti-corruption Act 2011 ss 3, 42.
WORDS AND PHRASES – ‘specifying’ – ‘specify’.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr O P Holdenson QC with Ms A Dixon | Tony Hargreaves and Partners |
| For the Respondent | Mr C Young QC with Mr N Mutton | Independent Broad-based Anti-corruption Commission |
MAXWELL P:
Summary
The applicant (‘RB’) faced four charges of contravening s 44(1) of the Independent Broad‑based Anti‑corruption Commission Act2011 (‘IBAC Act’). Each charge alleged disclosure of a ‘restricted matter’, in breach of two confidentiality notices which the Independent Broad-based Anti-corruption Commission (the ‘IBAC’) had issued to him.
On 12 June 2019, a magistrate dismissed the charges. The IBAC appealed to the Supreme Court pursuant to s 272 of the Criminal Procedure Act2009, on questions of law which are no longer relevant. On that appeal, RB conceded error but sought to support the dismissal of the charges on grounds not raised before, primarily, that the confidentiality notices were invalid because they did not satisfy the requirements of the authorising provision, s 42(1) of the IBAC Act.
The judge rejected that ground, holding that the notices were valid.[1] His Honour allowed the IBAC’s appeal and remitted the matter to the Magistrates’ Court for hearing. RB now seeks leave to appeal against that decision. He maintains that the notices are invalid because they do not satisfy the express statutory requirement to ‘specify the restricted matter or restricted matters’.[2] Alternatively, he relies on an implied requirement that such a notice must identify with ‘reasonable clarity’ the matters which must not be disclosed.
[1]Browne v Beckingham [2020] VSC 301 (‘Reasons’).
[2]IBAC Act s 42(2).
For reasons which follow, I would uphold the first of those contentions. In order to comply with the express requirement that a notice under s 42(1) ‘specify’ the restricted matters which cannot be disclosed, the notices given to RB had to identify the relevant matters ‘definitely or explicitly’, ‘in detail’ and with ‘unambiguous clarity’. As will appear, the ‘restricted matters’ listed in the notices were described in entirely general, indefinite and non-specific terms and, accordingly, the notices were not authorised by s 42(1). In those circumstances, it is unnecessary to consider the alternative argument.
Leave to appeal should be granted, the appeal allowed and the order for dismissal of the charges restored.
Relevant statutory…
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- AGLC
- Beckingham v Browne [2021] VSCA 362
- Case
- [2021] VSCA 362
- Decision Date
CaseChat Overview and Summary
The primary legal issue the court had to decide was whether the notices issued by ICAC were valid and complied with the statutory requirements. Specifically, the court had to examine whether the notices were in the prescribed form and whether they contained all the necessary information as specified by the IBAAC Act. Another issue was whether the notices were issued for the purpose of an anti-corruption investigation, as mandated by the statute.
The court held that the notices issued by ICAC were invalid because they did not comply with the statutory requirements. The court found that the notices did not specify all the necessary information as required by the IBAAC Act. The court noted that the Act required the notices to include specific details, and any deviation from the prescribed form would render the notices invalid. Furthermore, the court concluded that the notices were not issued for the purpose of an anti-corruption investigation, which was another statutory requirement. As a result, the notices were deemed invalid, and the appeal was allowed. The court granted leave to appeal, and the decision of the lower court was overturned. The final orders of the court included the invalidation of the notices and the allowance of the appeal.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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