Woodman v IBAC

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2022 01011

JOHN CHARLES WOODMAN	Plaintiff
v
INDEPENDENT BROAD-BASED ANTI-CORRUPTION COMMISSION	Defendant

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JUDGE:	Ginnane J
WHERE HELD:	Melbourne
DATE OF HEARING:	7-8, 14-15 June 2022
DATE OF JUDGMENT:	10 November 2022
CASE MAY BE CITED AS:	Woodman v IBAC
MEDIUM NEUTRAL CITATION:	[2022] VSC 684*

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

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ADMINISTRATIVE LAW – IBAC investigation – Preparation of proposed report – Adverse comments and opinions – Reasonable opportunity to respond to adverse material – Entitlement to procedural fairness – Independent Broad-based Anti-corruption Commission Act 2011 ss 8, 15, 42, 45-50, 60, 116-120, 162-164, 166.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr N Wood SC Mr C Viney	Duxton Hill
For the Defendant	Ms F Gordon SC Mr J Maxwell	Solicitor for the Independent Broad-based Anti-corruption Commission

TABLE OF CONTENTS

Introduction........................................................................................................................................ 1

Relief claimed................................................................................................................................ 2
Background.................................................................................................................................... 3
IBAC’s public examinations........................................................................................................ 4
Draft Report................................................................................................................................... 5
Footnotes........................................................................................................................................ 6

The IBAC Act...................................................................................................................................... 8

Investigative powers..................................................................................................................... 9
Special reports............................................................................................................................. 10
The IBAC Act’s control of the disclosure of information...................................................... 12
Private examinations and protected documents.................................................................... 16

Mr Woodman’s grounds................................................................................................................. 17

Ground 1 – failure to provide Mr Woodman with a reasonable opportunity to respond to ‘adverse material’ – non-compliance with s 162(3)...................................................................... 17
Mr Woodman’s submissions........................................................................................... 17
IBAC’s submissions........................................................................................................... 21
Analysis of ground 1......................................................................................................... 23

Ground 2 – Informing Mr Woodman of the evidence on which IBAC relied to support an adverse comment or opinion is part of providing a ‘reasonable opportunity’ to respond... 27
Mr Woodman’s submissions........................................................................................... 27
IBAC’s submissions........................................................................................................... 28
Analysis of ground 2......................................................................................................... 29

Ground 3 – procedural unfairness and/or legal unreasonableness.................................... 30
Mr Woodman’s submissions........................................................................................... 30
Mr Woodman’s submissions – legal reasonableness................................................... 31
IBAC’s submissions........................................................................................................... 31
IBAC’s submissions – legal reasonableness................................................................... 33
Analysis of ground 3......................................................................................................... 33

Ground 3A – IBAC has no power to publish the report insofar as s 162(3) is not complied with, procedural fairness is not afforded, and/or legal reasonableness is not adhered to 35
Mr Woodman’s submissions........................................................................................... 36
IBAC’s submissions........................................................................................................... 36
Analysis of ground 3A...................................................................................................... 36

Ground 4 – Mr Woodman has not been given a ‘reasonable’ opportunity to respond.... 37
Mr Woodman’s submissions........................................................................................... 37
IBAC’s submissions........................................................................................................... 38
Analysis of ground 4......................................................................................................... 38

Footnotes............................................................................................................................................ 38

Volume 1, footnote 79................................................................................................................. 40
Mr Woodman’s submissions........................................................................................... 40
IBAC’s submissions........................................................................................................... 40
Analysis............................................................................................................................... 40

Volume 1, footnote 232............................................................................................................... 42
Mr Woodman’s submissions........................................................................................... 42
IBAC’s submissions........................................................................................................... 42
Analysis............................................................................................................................... 43

Volume 1, footnote 233............................................................................................................... 44
Mr Woodman’s submissions........................................................................................... 44
IBAC’s submissions........................................................................................................... 44
Analysis............................................................................................................................... 44

Volume 1, footnote 250............................................................................................................... 44
Mr Woodman’s submissions........................................................................................... 45
IBAC’s submissions........................................................................................................... 45
Analysis............................................................................................................................... 45

Volume 1, footnote 329............................................................................................................... 47
Mr Woodman’s submissions........................................................................................... 47
IBAC’s submissions........................................................................................................... 47
Analysis............................................................................................................................... 48

Volume 1, footnote 436............................................................................................................... 48
Mr Woodman’s submissions........................................................................................... 48
IBAC’s submissions........................................................................................................... 48
Analysis............................................................................................................................... 49

Volume 1, footnote 558............................................................................................................... 49
Mr Woodman’s submissions........................................................................................... 50
IBAC’s submissions........................................................................................................... 50
Analysis............................................................................................................................... 50

Volume 1, footnote 591............................................................................................................... 50
Mr Woodman’s submissions........................................................................................... 51
IBAC’s submissions........................................................................................................... 51
Analysis............................................................................................................................... 51

Volume 1, footnote 849............................................................................................................... 52
Mr Woodman’s submissions........................................................................................... 52
IBAC’s submissions........................................................................................................... 52
Analysis............................................................................................................................... 52

Volume 1, footnote 953............................................................................................................... 53
Mr Woodman’s submissions........................................................................................... 53
IBAC’s submissions........................................................................................................... 53
Analysis............................................................................................................................... 53

Volume 2, footnote 318............................................................................................................... 54
Mr Woodman’s submissions........................................................................................... 54
IBAC’s submissions........................................................................................................... 54
Analysis............................................................................................................................... 54

Volume 2, footnotes 348 and 349.............................................................................................. 55
Mr Woodman’s submissions........................................................................................... 55
IBAC’s submissions........................................................................................................... 56
Analysis............................................................................................................................... 56

Volume 2, footnotes 747 and 748.............................................................................................. 56
Mr Woodman’s submissions........................................................................................... 57
IBAC’s submissions........................................................................................................... 57
Analysis............................................................................................................................... 57

Mr Woodman’s claims to other documents................................................................................ 58

Conclusion......................................................................................................................................... 59

HIS HONOUR:

Introduction

The Independent Broad-based Anti-corruption Commission’s (‘IBAC’) proposes to transmit a special report about Operation Sandon to each House of the Victorian Parliament under s 162 of the Independent Broad-based Anti-corruption Commission Act 2011 (‘IBAC Act’).[1] Mr John Woodman is to be one of the subjects of the special report. He claims that IBAC has not provided him with a reasonable opportunity to respond to the adverse material contained in a draft report provided to him, as the IBAC Act requires, and that thereby he has also been denied procedural fairness. He seeks declarations and injunctions to give effect to his claims.
[1]Unless otherwise stated, all references to legislation are to the IBAC Act. The Independent Broad-based Anti-corruption Commission is referred to in the judgment as IBAC.

IBAC’s ‘Operation Sandon’ is an investigation commenced in August 2018 about whether councillors of the City of Casey (the ‘Council’) have received improper benefits or donations in exchange for favourable Council decisions, and the conduct of Mr Woodman and his business associates in relation to planning matters at the Victorian Government level. The City of Casey is in outer south-east Melbourne and includes the suburbs of Berwick, Cranbourne, and Narre Warren.

IBAC has prepared a draft report about Operation Sandon which it intends to transmit to each House of the Parliament pursuant to s 162(1) (the ‘Draft Report’). The Draft Report contains adverse comments and opinions about Mr Woodman amongst others. When IBAC intends to include a ‘comment’ or ‘opinion’ in a report which is ‘adverse’ to a person, s 162(3) requires that it first give that person a ‘reasonable opportunity’ to respond to the adverse ‘material’ and fairly set out each element of their response in its report.

The Draft Report described its findings about [redacted].

Mr Woodman relies on the following grounds in seeking judicial review orders in respect of IBAC’s Draft Report:[2]
[2]This statement of Mr Woodman’s grounds contains minor rewording to complete the propositions as expressed in his Amended Originating Motion dated 6 May 2022.

(a) Ground 1: IBAC has failed to give him an opportunity to respond to ‘adverse material’ – non-compliance with s 162(3);

(b) Ground 2: IBAC has failed to comply with the requirement of informing him of the evidence relied on by [IBAC] to support an adverse comment or opinion, which is part of providing a ‘reasonable opportunity’ to respond;

(c) Ground 3: procedural unfairness and/or legal unreasonableness;

(d) Ground 3A: IBAC has no power to publish report insofar as s 162(3) is not complied with, procedural fairness is not afforded, and/or legal reasonableness is adhered to; and

(e) Ground 4: In any event, he has not been given a ‘reasonable’ opportunity to respond.

Relief claimed

Mr Woodman seeks the following orders:

(a) A declaration that IBAC has failed to provide him a ‘reasonable opportunity’ to respond to the ‘adverse material’ in relation to him with respect to the Draft Report concerning Operation Sandon that IBAC intends, once it is finalised, to transmit to each House of the Parliament, as required by s 162(3) of the IBAC Act;

(b) Further or alternatively, a declaration that IBAC would deny him procedural fairness and/or be acting legally unreasonably if it transmitted to either House of the Parliament a report substantially in the form of the Draft Report in circumstances where IBAC had not:

(i) put him on notice of the nature and content of all of the evidence or information on which IBAC intends to rely on including in the report comments and/or opinions adverse to him; or

(ii) afforded him a reasonable opportunity to respond, including an opportunity to rebut, qualify and/or comment by way of submission upon adverse material from other sources available to IBAC and on which IBAC intends to rely in including in the report comments and/or opinions adverse to him;

(c) An injunction or order restraining or prohibiting IBAC from causing a report substantially in the form of the Draft Report being transmitted to either House of the Parliament, or alternatively an injunction or order restraining or prohibiting IBAC from doing so unless, and until, it complies with its obligations in s 162(3) and the requirements of procedural fairness and legal reasonableness.

Mr Woodman’s entitlement to procedural fairness and his right to respond to the adverse comments or opinions about him contained in the Draft Report prior to its transmission to Parliament were not in dispute.[3] I accept that, based on the Draft Report, the comments or opinions that IBAC may include in the special report may harm Mr Woodman’s reputation. The main debate in the case was about the content of the reasonable opportunity to respond that s 162(3) and the requirements of procedural fairness gave Mr Woodman in the circumstances of this case.
[3]Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 (‘Ainsworth’).

Background

On [redacted], IBAC commenced an investigation pursuant to s 60(1)(c) which it titled Operation Sandon. Initially, the scope of Operation Sandon was to investigate alleged corrupt conduct by councillors of the City of Casey, who were suspected of having accepted undeclared payments, gifts or other benefits from property developers, in exchange for favourable Council outcomes in relation to planning and development matters.

On [redacted], IBAC expanded the scope of Operation Sandon to include, among other things, the conduct of Mr Woodman and his business associates, in order to determine whether they were attempting to corruptly influence, or conspiring to influence, decisions of any public officer in the City of Casey, [redacted].

IBAC’s public examinations

As part of Operation Sandon, IBAC conducted a range of public and private examinations and lawfully covert information-gathering activities. Public examinations were held from November 2019 to December 2020, with Mr Woodman publicly examined between 18 and 26 November 2019. Throughout his public examination, Mr Woodman was represented by counsel instructed by Corrs Chambers Westgarth (‘Corrs’).

On 18 November 2019, at the commencement of public examinations, the Commissioner of IBAC (the ‘Commissioner’) made a direction under s 119 that witnesses were not to be present in the hearing room during the examination of other witnesses (the ‘s 119 Direction’). Mr Woodman’s counsel were, however, permitted to remain in the hearing room throughout all public examinations. The Commissioner also stated that interested parties or their legal representatives could apply to cross-examine other witnesses under s 132A, but Mr Woodman’s counsel did not seek to do so.

From 27 November 2019 until the conclusion of public examinations, IBAC provided Mr Woodman’s legal representatives with access to the transcripts of public examinations and exhibits tendered.

On 3 March 2020, the Commissioner lifted the s 119 Direction. Thereafter, Mr Woodman was permitted to attend the public examinations, or view them via live stream on IBAC’s website. IBAC also began to publish the transcripts of public examinations on its website as they became available, except for [redacted].

In March 2021, Duxton Hill commenced to represent Mr Woodman in place of Corrs.

Draft Report

In December 2021, IBAC notified Mr Woodman of its intention to provide him with relevant parts of a draft special report concerning its findings in Operation Sandon and its intention to transmit a final version of that report to Victorian Parliament pursuant to s 162.

[Redacted].

[Redacted].

[Redacted].

I have already set out the Draft Report’s findings about Mr Woodman. [Redacted].

On 23 December 2021, IBAC wrote to Duxton Hill advising of its intention to provide Mr Woodman with a copy of the Draft Report for his review and response by close of business on 28 January 2022. The next day, IBAC sent an email to Duxton Hill containing a link from which volume 1 of the Draft Report could be downloaded (‘volume 1’). The footnotes to the body text of volume 1 had all been redacted.

On 10 January 2022, IBAC provided Duxton Hill with a link to volume 2 of the Draft Report (‘volume 2’), with a letter similarly inviting Mr Woodman to review it and respond by 28 January 2022. The footnotes to the body text of volume 2 had again all been redacted. IBAC thereafter gave Mr Woodman until 25 March 2022 to respond, but after the commencement of this proceeding, on 6 May 2022, it gave the undertaking referred to below.

The parties corresponded and:

(a) On 14 April 2022, following previous requests, IBAC provided Duxton Hill with all of the Draft Report footnotes, except for:

(i) footnotes referencing private examinations (‘First Category’);[4]
[4]Containing pinpoint references to transcripts of, and exhibits from, those private examinations.

(ii) footnotes referencing ‘protected documents or other things’ within the meaning of s 46 of the IBAC Act (‘Second Category’);[5] and
[5]Containing references to documents created by IBAC, documents voluntarily provided to IBAC by other persons, and information obtained by IBAC through the exercise of its coercive powers.

(iii) footnotes referencing internal editorial comments or references (‘Third Category’).[6]

(b) In total, 2,109 footnotes were ultimately provided to Mr Woodman in full; 81 in part; and 412 remained undisclosed entirely. The 412 outstanding and fully redacted footnotes were in issue in this proceeding.

[6]Including document identification numbers.

On 6 May 2022, IBAC undertook that it would not transmit its special report to Parliament until 5 business days after the date of judgment in this proceeding; and that, if Mr Woodman is unsuccessful in this proceeding, then IBAC will afford him 5 business days from the date of judgment to provide his response to the Draft Report.

Ms [Redacted], a Principal Lawyer at IBAC, made an affidavit stating that the special report has not yet been finalised and is subject to further amendments, which may arise as a result of responses that IBAC receives as it progresses through the s 162(3) natural justice process. At the time of her affidavit in May 2022, IBAC had received over 30 responses to the Draft Report and was reviewing them. If any of them necessitate amendments to the content of the Draft Report, that may result in the corresponding footnotes being amended.[7] Ms [Redacted] stated that if changes are made to the Draft Report during the s 162(3) process and the final report is to include any new adverse comments or opinions about Mr Woodman, IBAC will put those new adverse comments or opinions to him for his response before the report is finalised. No footnotes in the final report will contain any adverse comments or opinions about Mr Woodman.[8]
[7]Affidavit of [Redacted] dated 11 May 2022, [42] (‘First [Redacted] Affidavit’).
[8]Ibid [43].

Footnotes

Much debate occurred about the significance of the Draft Report’s footnotes to Mr Woodman’s rights under s 162(3) and conferred by procedural fairness and I will discuss the features of that debate later in this judgment.

The Draft Report provided to Mr Woodman contained in-text numeral citations, however the footnotes to which those numerals referred were redacted. This indicated to Mr Woodman that an earlier version of the Draft Report contained footnotes which were redacted prior to the Draft Report being provided to him.[9]
[9]Affidavit of Andrew Tragardh dated 24 March 2022, [31], [35].

As previously mentioned, Mr Woodman currently has access to 2,109 footnotes in full, or in which only an internal document identification number has been redacted, and 81 footnotes in part. Four hundred and ninety-three footnotes remain undisclosed to Mr Woodman in whole or part.

On the second day of trial, 8 June 2022, counsel for IBAC provided the remaining unredacted footnotes to counsel and their instructing solicitor for Mr Woodman, upon them giving undertakings to the Court.

On 10 and 14 June, counsel exchanged further written submissions regarding the outstanding redacted footnotes. IBAC also provided Mr Woodman’s counsel with an additional 39 pages of transcript from public examinations in Operation Sandon, which it relied on as adding to the information that he had been provided.

IBAC’s provision of these footnotes narrowed the scope of the dispute between the parties. It now concerns 15 footnotes in the Draft Report, the documents or information to which they refer, being ‘credible, relevant and significant’ evidence and information that it can be inferred exist from the footnotes or the text to which they are attached.

On the second day of the trial, counsel for IBAC gave an undertaking that it will not publish, in the final report, any of the footnotes that were redacted, or those parts of footnotes that were partially redacted in the documents provided to Mr Woodman on 14 April 2022.

After having reviewed these additional redacted footnotes, counsel for Mr Woodman submitted that the footnotes in dispute fall into two categories:

(a) footnotes that contained all of the ‘adverse material’ to which s 162(3) is directed (‘Substantive Footnotes’); and

(b) footnotes which do no more than direct attention to another underlying primary source which must also be revealed in order to comply with the terms of s 162(3) (‘Referential Footnotes’).

However, Mr Woodman’s claims extend beyond the contents of the remaining redacted footnotes, as he also seeks notice of the content of all the evidence or information on which IBAC relied. He argued that in some instances, the nature of the footnote might be the ‘sum total’ of the adverse material; in other cases, it may do no more than direct attention to an underlying primary source which he contended that s 162(3) required IBAC to disclose. IBAC described the footnotes as a distraction to the real issues in the case and relied on the details of the findings about Mr Woodman contained in the Draft Report.

An initial question that arises in considering this dispute is why footnotes, and ultimately 15 footnotes, matter. After all, Mr Woodman has received a 400 page draft report and nearly all of the footnotes. Is that not sufficient to provide him with a reasonable opportunity to respond to the adverse material? While that thinking has initial attraction, the issue can only be assessed by consideration of the submissions about the remaining footnotes.

The IBAC Act

IBAC is established under s 12 of the IBAC Act. 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. Section 15(7) states:

(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.

Investigative powers

Section 60 empowers IBAC to conduct investigations as follows:

60 Conducting investigations about corrupt conduct
(1)Subject to subsection (2), the IBAC may conduct an investigation in accordance with its corrupt conduct investigative functions―
(a)on a complaint made to it under section 51; or
(b)on a notification to it under section 57(1); or
(c)on its own motion.

(2)The IBAC must not conduct an investigation under subsection (1) unless the IBAC suspects on reasonable grounds that the conduct constitutes corrupt conduct.
…

Section 164 empowers IBAC after conducting an investigation to:

164     Outcome of investigation
(1)       After conducting an investigation, the IBAC may―
(a)       make a referral under Division 5 of Part 3;
(b)       make a recommendation in accordance with section 159;
(c) transmit a special report under section 162;
(d)advise a complainant or other person in accordance with section 163;
(e)do any combination or all or none of the matters referred to in paragraphs (a) to (d);
(f)determine to make no finding or take no action following the investigation.

(2)Without limiting subsection (1), after conducting an investigation, the IBAC may also take any other action that the IBAC is permitted to take under this or any other Act.

Special reports

IBAC proposes to transmit a special report, the draft version of which is the subject of these proceedings, to each House of the Parliament pursuant to s 162, which 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 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.

…
(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 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.

The IBAC Act’s control of the disclosure of information

The IBAC Act regulates disclosure of information about its investigations. Section 117 provides that examinations must generally be held in private, and that an examination is not open to the public unless IBAC considers, on reasonable grounds, that exceptional circumstances exist, and other conditions are satisfied. It states:

117 Examinations generally to be held in private
(1)Subject to subsection (2), an examination is not open to the public unless the IBAC considers on reasonable grounds―
(a) there are exceptional circumstances; and
(b)it is in the public interest to hold a public examination; and
(c)a public examination can be held without causing unreasonable damage to a person's reputation, safety or wellbeing; and
(d)the conduct that is the subject of the investigation may constitute―
(i)serious corrupt conduct; or
(ii)systemic corrupt conduct; or
(iii)serious police personnel misconduct; or
(iv)systemic police personnel misconduct.

…

The IBAC Act contains many restrictions on the disclosure of information obtained during an investigation. provides for the disclosure of information in particular circumstances.[10] Division 4 of Part 2 prevents IBAC from being compelled to disclose a ‘protected document or other thing’ in civil or criminal proceedings, except in limited circumstances. A ‘protected document or other thing’ is defined in s 46 of the IBAC Act as follows:
[10]See, e.g., ss 40, 59(4), 163(4)-(5), 166, 184, and 194.

46 What is a protected document or other thing?
For the purposes of this Division, a protected document or other thing is a document or other thing the production or inspection of which―
(a) is likely to―
(i)reveal the identity of an informer or put an informer's safety at risk; or
(ii)reveal the identity of a person who has been summoned, or who has appeared, as a witness in an examination, or put that person's safety at risk; or
(iii)reveal the identity of a person who has provided the IBAC with information relating to an investigation, or put that person's safety at risk; or
(iv)reveal the identity of a person whose name appears in any evidence given or information provided to the IBAC relating to an investigation, or put that person's safety at risk; or
(v)reveal the identity of a person who is, or has been, the subject of an investigation, or put that person's safety at risk; or

(b) is likely to place at risk―
(i) an investigation under this Act; or
(ii)any other investigation by the Victorian Inspectorate, a law enforcement agency or an integrity body; or

(c)is likely to risk the disclosure of any secret investigative method used by the IBAC, the Victorian Inspectorate, a law enforcement agency or an integrity body; or
(d)is otherwise not in the public interest.

Section 42 provides for IBAC to issue confidentiality notices to prevent the disclosure of information and states:

42 Confidentiality notice
(1)If during an investigation the IBAC considers on reasonable grounds that the disclosure of one or more restricted matters would be likely to prejudice—
(a)that investigation; or
(b)the safety or reputation of a person; or
(c)the fair trial of a person who has been, or may be, charged with an offence –

the IBAC may issue a confidentiality notice in respect of that investigation to a person (other than an IBAC Officer or a Victorian Inspectorate Officer) specifying the restricted matter or restricted matters in accordance with this section.

(1A) If during a preliminary inquiry the IBAC –
(a) has issued a witness summons to a person; and
(b)considers on reasonable grounds that the disclosure of one or more restricted matters would be likely to prejudice the preliminary inquiry—

the IBAC may issue a confidentiality notice to the person (other than an IBAC Officer or a Victorian Inspectorate Officer) specifying the restricted matter or restricted matters in accordance with this section.

(2) A confidentiality notice must –
(a) be in the prescribed form;
(b)specify the restricted matter or restricted matters in respect of which the confidentiality notice is issued;
(c)include a copy of the provisions of subsections (3) to (8) and section 44 and an explanation of the effect of those provisions;
(d)include a statement –
(i)advising the person to whom the confidentiality notice is issued that additional obligations under the Public Interest Disclosures Act 2012 relating to confidentiality may apply to the person; and
(ii)directing the person to the provisions of that Act which impose those obligations.

(3)If at any time the IBAC considers on reasonable grounds that it is necessary to restrict disclosure of a different restricted matter from any of those specified in a confidentiality notice in respect of a particular investigation to ensure that the matters specified in subsection (1), or in respect of a preliminary inquiry to ensure that the matters specified in subsection (1A), are not likely to be prejudiced, the IBAC must issue to the person to whom the confidentiality notice was issued—

(a) a notice cancelling the previous confidentiality notice; and
(b)a new confidentiality notice in respect of that investigation under subsection (1) or (1A).

(4)If at any time the IBAC considers on reasonable grounds that it is no longer necessary to restrict disclosure of a particular restricted matter specified in a confidentiality notice in respect of a particular investigation to ensure that the matters specified in subsection (1), or in respect of a preliminary inquiry to ensure that the matters specified in subsection (1A), are not likely to be prejudiced, the IBAC must issue to the person to whom the confidentiality notice was issued—
(a)a notice cancelling the previous confidentiality notice; and
(b)a new confidentiality notice in respect of that investigation under subsection (1) or (1A).

(5)If at any time the IBAC considers on reasonable grounds that it is no longer necessary to restrict disclosure of the restricted matter or restricted matters specified in a confidentiality notice in respect of a particular investigation to ensure that the matters specified in subsection (1), or in respect of a preliminary inquiry to ensure that the matters specified in subsection (1A), are not likely to be prejudiced, the IBAC must issue to the person to whom the confidentiality notice was issued a notice cancelling the confidentiality notice.
(6)A confidentiality notice in respect of a particular investigation ceases to have effect on whichever of the following occurs first—
(a)the date on which the IBAC issues a notice cancelling the confidentiality notice under subsection (3), (4) or (5);
(b)the date which is the expiry of the period of 5 years from the date on which the first confidentiality notice in respect of that investigation was issued to that person or, if an extension is granted under subsection (8), the date on which the period of extension expires.

(7)If the IBAC considers on reasonable grounds that it is necessary to extend the period of 5 years specified in subsection (6)(b) on any of the grounds specified in subsection (8), the IBAC may apply to the Supreme Court for an extension of the period.
(8)The Supreme Court, on the application of the IBAC, may, by order, extend the period of 5 years specified in subsection (6)(b), if the Supreme Court is satisfied that an extension is necessary to avoid prejudice to—
(a)the investigation being conducted by the IBAC; or
(b)the safety or reputation of a person; or
(c)the fair trial of a person who has been, or may be, charged with an offence; or
(d)any proceedings that are proposed to be commenced or which have not been finally determined.

(9)A confidentiality notice under subsection (1) or (1A) or a notice cancelling a confidentiality notice under subsection (3), (4) or (5) may be issued to a person by serving a copy on the person in the same manner that a witness summons can be served under section 59I, 59J, 124(3), 124(4), 124(5), 125 or 191(1) or (2).

Section 166 prohibits persons who receive draft reports or parts thereof from disclosing such information until IBAC has published its report in accordance with the IBAC Act:

166 Persons who receive reports or information prior to publication
(1)Subject to subsections (3), (4) and (5), a person who receives a proposed report, an advance copy of a report under section 162A, or a draft or part of a proposed report or information contained in a proposed report or draft or part of a proposed report, before the report is published by the IBAC in accordance with section 162 or 165 must not disclose any information contained in the proposed report or draft or part of the proposed report unless-
(a)the disclosure is permitted under subsection (2); and
(b)the advice required by subsection (6) is given at the same time the disclosure is made.

Penalty:120 penalty units or imprisonment for 12 months or both.
…

Private examinations and protected documents

An issue connected with the IBAC Act’s provisions concerning restrictions on the disclosure of information arose from Mr Woodman’s submission that the scheme of the Act did not prevent IBAC from providing him with access to the transcripts of private witness examinations. He argued that IBAC had not provided any evidence that it would harm the public interest if that occurred. IBAC could issue a confidentiality notice under s 42 to protect the confidentiality of private examination transcripts if they were provided to him. [Redacted], but without private examination transcripts and relevant documents produced in those examinations, he could not test, or seek to rebut, parts of the evidence from those private examinations that IBAC’s Draft Report might have taken out of context. IBAC described the private examinations as providing valuable information. Mr Woodman had shifted the onus of proof by pointing to evidence, including parts of the Draft Report, which suggested that the private examination transcripts and some protected documents contained credible, relevant and significant information adverse to him which IBAC had not provided to him. I will consider this issue further when considering some of the footnotes.

Mr Woodman’s grounds

I will next consider the grounds on which Mr Woodman relies and will do so in two stages. The first stage is to decide disputes between the parties as to IBAC’s obligations under s 162(3) and common law procedural fairness. The second stage will be to decide whether Mr Woodman has established that IBAC has failed to comply with those obligations. I will do that principally by considering his claims about redacted footnotes and any documents, which he has established probably exist, but have not been provided to him, which are credible, relevant and significant to any adverse comments or opinions that IBAC may be proposing to make against him as contained in, or indicated by, the Draft Report.

Ground 1 – failure to provide Mr Woodman with a reasonable opportunity to respond to ‘adverse material’ – non-compliance with s 162(3)
Mr Woodman’s submissions

Ground 1 alleges that IBAC failed to give Mr Woodman any opportunity, let alone a ‘reasonable opportunity’, to respond to all of the ‘adverse material’ as required by s 162(3) because:

(a) at least some of the remaining, fully redacted footnotes include and/or refer to ‘adverse material’ when that term is properly construed; and

(b) even if the term ‘adverse material’ is limited to a ‘comment or opinion which is adverse’, contrary to his primary argument, any reference relied on as supporting an adverse comment or opinion itself was a comment or opinion that there exists adverse material which is supportive of that comment or opinion. In those instances, s 162(3) requires more than merely the provision of redacted footnotes.

Mr Woodman argued that he needed access to the redacted footnotes because in some cases they might contain the ‘sum total’ of the adverse material and in other cases they may do no more than direct attention to an underlying primary source which must be revealed. He was not only seeking the footnotes for their contents, but because they would ‘provide a lens’ to seeing the underlying documents which he should be provided.[11]
[11]Transcript of Proceedings, Woodman v IBAC (Supreme Court of Victoria, S ECI 2022 01011, Ginnane J, 7 June 2022) 100, 251 (‘T’).

Mr Woodman argued that the term ‘the adverse material’ extended to all of the evidence or information on which IBAC intends to rely on in including in a special report, comments or opinions adverse to a person. The term was not synonymous with the expression ‘a comment or opinion which is adverse’ appearing earlier in s 162(3) for the following reasons. First, the shift in the words used in s 162(3), especially the difference between ‘a comment or opinion which is adverse’ and ‘the adverse material’, which suggested that Parliament intended the latter expression to bear a wider meaning than the former. Section 162(3) facilitates a person in Mr Woodman’s position providing a response, which might shape the content of the final report or rebut adverse findings, proposed in the draft report.

Secondly, the terms of s 162(2) assist in the interpretation of s 162(3) as it supports the conclusion that the ‘adverse material’ cannot merely refer to the ‘adverse findings’ referred to earlier in the subsection, but signifies a wider class of evidence or information. There is no reason why the term ‘adverse material’, when used in s 162(3), should be construed differently than when it is used in s 162(2).

Thirdly, it would be incongruous to construe the term ‘adverse material’ in s 162(3), which addresses a more serious scenario for a person named in the Draft Report, differently from its use in s 162(4). Section 162(4) obliges IBAC to not merely provide the relevant non-adverse comment or opinion, but a wider class of ‘relevant material in relation to which IBAC intends to name that person’.

Fourthly, Mr Woodman’s construction of s 162(3) to mean that the evidence IBAC relied on to support an adverse comment or opinion is part of the ‘adverse material’, is consistent with the intent of s 162(3) and with the principles of procedural fairness. The right given by s 162(3) is not just to comment upon the adverse conclusion after the decision-maker has drawn it.[12]
[12]Citing BRF038 v Republic of Nauru (2017) 349 ALR 67, 78–9 [58]-[59] (Keane, Nettle and Edelman JJ) (‘BRF038’).

Mr Woodman relied on the High Court’s decision in Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (‘VEAL’) for the proposition that a person affected by an adverse decision has to be given the substance of any adverse document or information, which is credible, relevant and significant, which is before the decision-maker before the adverse decision is made or adverse action is taken.[13] The High Court described credible, relevant and significant information as information that the decision-maker cannot dismiss from further consideration before making the decision.[14] The fact that a particular adverse document or information is ultimately not given decisive weight in the decision does not mean that the document or information was not credible, relevant or significant and therefore had to be disclosed to the person who would be adversely affected by the decision or action. The High Court accepted that the public interest in not impeding the giving of information to authorities and the need to accord procedural fairness could be accommodated by giving a person the substance of adverse allegations about them.[15]
[13](2005) 225 CLR 88, 95-6 [16]-[18] (‘VEAL’).
[14]Ibid 96 [17].
[15]Ibid 100 [29].

Mr Woodman disputed IBAC’s submission that s 166 assumes that a person will not receive the underlying documents upon which a comment or opinion is based because it only protects the draft report’s confidentiality. The confidentiality notice procedure contained in s 42 enables IBAC to achieve an appropriate regime of protecting confidential information, including documents or information on which adverse comments or opinions are based.

In essence, Mr Woodman submitted that IBAC had applied the wrong criterion. Instead of providing credible, relevant and significant material and withholding the balance, IBAC had provided him with public documents only and withheld private documents. He argued that he had not been given all, or even the substance, of credible, relevant and significant evidence on which IBAC had relied in making comments or opinions adverse to him in its Draft Report. He had not been provided with the private examination transcripts, the documents tendered during private examinations and protected documents or other things. [Redacted]. If the substance of relevant private examinations was provided to him, IBAC could issue confidentiality notices under s 42 preventing the disclosure of their contents.

In addition, Mr Woodman argued that inferences could be drawn from footnotes that refer to protected documents that IBAC had relied on relevant underlying documents not provided to him. A large number of the footnotes by inference refer to other documents, which must be provided to him or at least the gist of the information in them. Mr Woodman accepted that giving a person the substance of the relevant information rather than the actual document might suffice in some circumstances, but that IBAC had not done that.

Mr Woodman relied on IBAC’s acknowledgement that it had not provided him with access to two categories of information, being information from private examinations and information derived from protected documents or other things. Consequently, the redacted footnotes, at least those falling into the first and second categories, by inference, contain or refer to credible, relevant and significant information concerning the adverse comments or opinions about him in the Draft Report, and must be disclosed to him. In the case of first category footnotes, IBAC has a wide discretion to allow any person to be present at examinations, including private examinations. The IBAC Act confers no general protection on persons giving evidence in private that their identities will not be revealed, or that other persons will not be present when they give evidence. In the case of second category footnotes, the relevant ‘protected documents or other things’ are defined broadly in s 46, and s 47 provides that a protected person cannot be compelled to produce such protected documents or other things. However, those provisions do not prohibit IBAC exercising its statutory powers to provide such documents in order to discharge its statutory obligations under s 162(3) or pursuant to the requirements of procedural fairness.

Mr Woodman argued that IBAC’s undertaking that none of the redacted or partially redacted footnotes would be published was of no consequence because he was entitled to procedural fairness during the process leading to the preparation of the Draft Report. The footnotes, whether included in the final report or not, embody or refer to credible, relevant and significant information that must be disclosed to him. Furthermore, if IBAC considers that it cannot provide him with the first or second category footnotes, it is not obliged to transmit a special report to Parliament, as that process is just one of its options when it finishes an investigation.

During the hearing, following the parties’ initial descriptions of their cases, I stated that I would make a finding reflecting a passage in IBAC’s submission that Mr Woodman does not have all of the documents on which IBAC has relied in the course of preparing the Draft Report.[16]
[16]T 26.

IBAC’s submissions

IBAC argued that the words ‘adverse material’ s 162(3) are used with their ordinary meaning and refer to the specific adverse comments or opinions mentioned in the subsection. The nature and extent of the information that must be provided to a person about whom adverse comments or opinions are made depends on what is required to provide that person with a ‘reasonable opportunity’ to respond to the adverse material upon which they are based. IBAC is not required to disclose documents that are not part of the adverse material proposed to be included in the report.

The words ‘adverse comment or opinion’ are evaluative words because they convey a negative view reached or endorsed by IBAC that is adverse about a person. Many of the matters set out in the report are not of themselves adverse comments or opinions but are factual building blocks on which IBAC has come to particular adverse comments or opinions.

Mr Woodman’s broader construction of s 162(3) should be rejected. First it goes against the plain reading of the subsection, its context and purpose. A plain reading of the provision reveals that the term ‘adverse material’ is connected to the earlier reference to ‘a comment or opinion which is adverse to any person’. Sections 162(2) and (4) do not suggest the contrary. Section 162(4) limits disclosure, in the case of a person who is not subject to an adverse comment or opinion, to the comment or opinion itself, rather than the evidence or information underlying it.

Given the lengths to which the IBAC Act goes to protect confidentiality of particular information, Parliament is unlikely to have intended that s 162(3) required IBAC to disclose a broader category of documents beyond the adverse material proposed to be included in a report. If it had so intended, it would have specified the documents to be disclosed and s 166 would have been expressed as extending to that category of documents. Relevant extrinsic materials support IBAC’s construction of s 162(3).[17] The scheme of the IBAC Act expressly protects confidential information obtained during investigations. Section 117 signifies the importance of maintaining the confidentiality of private examinations.
[17]Being the Explanatory Memorandum, Independent Broad-based Anti-corruption Commission Amendment (Investigative Functions) Bill 2011 (Vic); Victoria, Parliamentary Debates, Legislative Assembly, 8 December 2011, 6305-8 (Andrew McIntosh).

IBAC’s overarching submission in response to the specifics of Mr Woodman’s case was that all the information upon which it relied was explained in the Draft Report, which particularised the adverse comments or opinions about him. The Draft Report was to be analysed, not the footnotes, which were for internal drafting purposes and which were a distraction to the correct application of s 162(3). In addition, the opportunities and material already afforded to him during the decision-making process had to be considered in deciding whether he had been provided with a reasonable opportunity to respond. Mr Woodman and his lawyers had enjoyed access to most of the documents upon which IBAC had relied. Section 162(3) and common law principles of procedural fairness do not require disclosure of the remaining footnotes, in circumstances where they will not be included in the special report, and therefore will not contain an adverse comment or opinion about Mr Woodman.

IBAC was not obliged to provide to Mr Woodman the underlying transcripts and other documents, nor the primary source material it relied on in preparing the Draft Report, nor adopt an open file policy.[18] Most of his complaints did not depend on the content of a footnote, but rather complained of the lack of particulars in the Draft Report.
[18]T 150. See also VEAL and Minister for Local Government v South Sydney City Council (2002) 55 NSWLR 381 (‘South Sydney City Council’).

Analysis of ground 1

At this point in the judgment, I will decide the extent of IBAC’s obligations that are imposed by s 162(3). Later in the judgment, I will consider whether, in order to comply with s 162(3) or the principles of procedural fairness, IBAC must provide Mr Woodman with the redacted footnotes, any documents to which they refer or other any credible, relevant or significant information or documents whose existence can be inferred.

IBAC’s case raises the issue of whether, by providing a copy of the Draft Report to Mr Woodman and inviting his comment on it, it has complied with the requirements of s 162(3) or whether, as Mr Woodman contends, IBAC is required to provide underlying source material.

The ordinary meaning of the word ‘comment’ appearing in s 162(3) is a remark, observation or criticism.[19] The word ‘opinion’ means a judgment or estimate of a person or thing with reference to their character or merit.[20] The words ‘comment’ or ‘opinion’ are to be read in the context that they are directed to the contents of a report of a statutory investigative body that is to be transmitted to Parliament. A comment or opinion in such a report is likely to have a greater significance than a comment or opinion expressed in a social conversation. A comment or opinion expressed by IBAC in the draft of a special report to be transmitted to Parliament can be expected to be seriously expressed and supported by evidence, information or other material. Because IBAC’s comments or opinions are likely to be of that character, when they are adverse to any person, Parliament has given that person a right to a reasonable opportunity to respond to the adverse material on which they are based.
[19]Macquarie Dictionary (8^th ed, 2020) ‘comment’ (def 3).
[20]Ibid ‘opinion’ (def 5).

In my opinion, on their ordinary meaning, the words ‘the adverse material’ contained in s 162(3) refer to the material upon which IBAC’s adverse comments or opinions contained in the Draft Report about a person are based. That subsection does not just give such a person a right to respond to adverse comments or opinions as that may not enable them to understand the comment or opinion or make a meaningful response. Rather it requires that they be given a reasonable opportunity to respond to the adverse material, being the documents or information upon which the adverse comments or opinions are based. That opportunity may enable the person to make an informed response, which is not only in their interests to make, but also in IBAC’s interests to receive, as it may lead to IBAC transmitting a more accurate and balanced special report.

Section 162 deals in different ways with the inclusion of findings, comments or opinions in special reports and provides different rights of response to persons adversely affected by such comments or opinions. 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. The subsection under discussion in this case, s 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 to the adverse material. In both cases IBAC must fairly set out each element of any 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(3) does not expressly require that a draft report be provided to persons about whom adverse comments and opinions are made but the provision of a draft report is one obvious way of giving an affected person a reasonable opportunity to respond to the adverse material on which those adverse comments and opinions are based. The IBAC Act appears to anticipate or assume that a draft or proposed report will be provided to persons for their comment or response as s 166 places restrictions on the disclosure of information by persons who have been provided with the proposed report.

However, providing a draft report to a person who is the subject of adverse comment or opinion may not suffice to provide them with a reasonable opportunity to respond to the adverse material. Whether it does depends on the detail of the adverse comment or opinion that the draft report contains. Most IBAC reports will be based on conclusions drawn from many documents or sources, including telephone intercepts.

I consider the difference between ‘a comment or an opinion which is adverse to any person’ and ‘adverse material’ to be critical in deciding this case. The Draft Report contains many adverse comments or opinions about Mr Woodman. But it also contains many footnotes which provide the references to sources of information, which appear to be the basis for many such comments or opinions. The fact that IBAC may have intended the footnotes for internal use only and removed them from the copy of the Draft Report provided to Mr Woodman does not alter the fact that many of them are likely to have recorded the basis of the comments and opinions. I do not consider that IBAC’s obligations under s 162(3), or in providing procedural fairness, are discharged because it has provided Mr Woodman with a Draft Report containing many findings and adverse comments and opinions. Those obligations require that he be provided with a reasonable opportunity to respond to the adverse material on which they are based.

The next question is how much of the adverse material must be provided to the adversely affected person. 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 if that can be done while in some cases such as the [redacted], which I discuss later, the complete document must be provided. I will deal with the requirements of procedural fairness when considering Mr Woodman’s third ground.

I do not consider that IBAC is required to provide the entire contents of transcripts, documents, intercepts or other information when they formed part of, or were associated with, private examinations. Usually, as VEAL indicates, it will be sufficient that the substance of any adverse information, which is credible, relevant and significant, is provided. 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. Section 162 also contains further instances where the IBAC Act requires aspects of the investigation 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.

At this first stage of the judgment, I am only deciding questions of statutory interpretation and legal principle, which I will apply to the footnotes in issue in the second stage of this judgment.

For the reasons that I have given, in my opinion, s 162(3) requires IBAC to provide Mr Woodman with a reasonable opportunity to respond to the adverse material on which the adverse comments or opinions about him contained in the Draft Report were based. Subject to restrictions imposed by any statutory provision, I consider, when an the Draft Report contains an adverse comment or opinion about him that IBAC is usually required to provide him with the he documents or information on which the comments or opinions are based, or in some cases, the substance of that adverse material. Whether IBAC has met that requirement by the provision of the Draft Report requires separate consideration of each adverse comment or opinion that is in dispute, at least those contained in the footnotes. Mr Woodman has identified the adverse comments or opinions with which he is concerned by focusing on the 15 footnotes, the excerpts from the Draft Report to which they are attached and the inferences which can be drawn from them. Before considering those footnotes in the second stage of this judgment, I will continue to consider Mr Woodman’s other grounds in order to resolve disputed legal or statutory interpretation issues that they raise.

Ground 2 – Informing Mr Woodman of the evidence on which IBAC relied to support an adverse comment or opinion is part of providing a ‘reasonable opportunity’ to respond
Mr Woodman’s submissions

Mr Woodman’s ground 2 contended that even if ‘the adverse material’ to which s 162(3) refers is limited to ‘comment or opinion which is adverse’, providing [Mr Woodman with] a ‘reasonable opportunity’ to respond to such material involves:

(a) putting [him] on notice of the nature and content of all of the evidence or information on which IBAC intends to rely in including in the report comments and/or opinions that are adverse to [him]; and/or

(b) affording [him] a reasonable opportunity to respond, including an opportunity to rebut or qualify by further information and/or to comment by way of submission, upon adverse material from other sources that is available to IBAC and on which IBAC intends to rely in including in the report comments and/or opinions that are adverse to [him].

Mr Woodman contended that IBAC failed to comply with these obligations in particular by redacting footnotes in the Draft Report in the version that it has given to Mr Woodman.

As was the case with ground 1, Mr Woodman argued that the provision to him of a reasonable opportunity to respond required that he be given an opportunity to understand the adverse material which was credible, relevant and significant to IBAC’s formation of the adverse comments or opinions. In the alternative, he argued that, even if the ‘adverse material’ was limited to ‘comment or opinion which is adverse’, an evidentiary reference in a footnote attached to a comment or opinion that is adverse is a statement that evidence exists in support of that comment or opinion and therefore the person affected must have access to it.[21]
[21]T 111-12.

IBAC’s submissions

IBAC submitted that the determination of what is a ‘reasonable opportunity’ to respond requires a case-specific consideration of the facts and circumstances in issue. Section 162(3) requires that IBAC provide the person concerned with reasonable notice of the adverse comments or opinions proposed to be included in a special report, and the nature and content of the information IBAC relied upon to make those comments or express those opinions.

IBAC argued that it was not required to disclose all of the underlying documents or primary sources upon which it relied and that it does not have to adopt an open file policy. The Draft Report had provided Mr Woodman with the adverse comments or opinions in significant detail and he had suffered no practical injustice. Section 166(1) contemplates that the reasonable opportunity to respond required by s 162(3) will be provided by the provision of a draft report. The lengthy Draft Report provided to Mr Woodman contains the proposed adverse comments and opinions about Mr Woodman and the information on which IBAC relies in making them as well as the substance of the evidence or information on which IBAC relied.

In addition, prior to the receipt of the Draft Report, Mr Woodman received significant notice of, and evidence supporting, the allegations against him. Throughout the public examinations, he was represented by counsel, who were offered the opportunity to cross-examine witnesses, but declined. From 3 March 2020, he was permitted to attend all the public examinations and from 27 November 2019, he and his lawyers could access the transcript and exhibits from his own public examination. Since 3 March 2020, he has had access to the transcripts of most other public examinations and all public examinations transcripts have been available since December 2020.[22] He was therefore able to review the allegations made against him in the public examinations, scrutinise the supporting evidence and marshal additional evidence to respond to, rebut or qualify those allegations. Although not required to do so, IBAC has disclosed the majority of the footnotes to Mr Woodman and he has most, but not all, of the documents that IBAC obtained.
[22]First [Redacted] Affidavit, [22]-[23].

Mr Woodman did not identify any comments or opinions to which he could not reasonably respond, nor did he establish that he has suffered any practical injustice. His case is an abstract argument about the contents of footnotes.

Analysis of ground 2

As mentioned, at this first stage of the judgment, I am only deciding questions of statutory interpretation and legal principle.

I have answered the legal issues relating to this second ground in dealing with ground 1. I consider that 162(3) requires IBAC to provide Mr Woodman with a reasonable opportunity to respond to the adverse comments or opinions about him contained in the Draft Report. Subject to any statutory provision preventing it doing so, IBAC is required to provide him with the substance of the documents or information on which the comment or opinion is based, which contain credible, relevant or significant evidence, for that is the adverse material on which the adverse comments or opinions were based. Whether IBAC has met that requirement by the provision of the Draft Report requires separate consideration of each adverse comment or opinion that is in dispute. Mr Woodman has identified the adverse comments or opinions with which he is concerned by focusing on the 15 footnotes, which I later consider and the report excerpt to which they are attached. Before considering those footnotes, I will consider Mr Woodman’s remaining grounds and the disputes of principle that they raise.

Ground 3 – procedural unfairness and/or legal unreasonableness

Mr Woodman raised ground 3 as an alternative to both grounds 1 and 2 and it states:

In the alternative to grounds 1 and 2, ordinary or presumptive principles of procedural fairness and/or legal reasonableness to which the IBAC is impliedly subject in exercising its power under s 162(1), because those principles have not been excluded or modified by plain words of necessary intendment, would require that IBAC must, inter alia, before it causes a report to be transmitted to either House of Parliament:
(a)put a person in respect of whom IBAC intends to include a comment or opinion which is adverse to them on notice of the nature and content of all of the information or evidence on which the IBAC intends to rely [on] including that comment or opinion; and
(b)afford such a person a reasonable opportunity to respond, including an opportunity to rebut or qualify by further information, and/or to comment by way of submission upon, adverse material from other sources that is available to the IBAC and on which the IBAC intends to rely [on] including in the report comments and/or opinions that are adverse to the plaintiff.

Mr Woodman’s submissions

In support of his third ground, Mr Woodman argued that if, as IBAC contends, s 162(3) does not require it to provide him with underlying material on which the adverse comments or opinions in its Draft Report were based, that subsection is not an exhaustive statement of the requirements of procedural fairness and the common law principles still apply. Procedural fairness would require that he is provided with the underlying material. Mr Woodman relied on the High Court’s decision in VEAL to establish that a person who might be adversely affected by a decision is entitled to access all credible, relevant and significant information that was before the decision-maker even if it played no part in the final decision.[23]
[23]See Chief Commissioner of Police v Nikolic (2016) 338 ALR 683, 691 [30].

Mr Woodman argued that procedural fairness required IBAC to complete the following steps before it transmits a special report to Parliament. First, give him notice of the nature and content of all the evidence or information upon which it intends to rely in including adverse comments or opinions about him. Secondly, provide him with a reasonable opportunity to respond, including by rebutting or qualifying and making submissions about the adverse material on which it intends to rely.

IBAC has not explained why the redacted footnotes could not be disclosed, or provided any evidence of what damage, if any, might be caused by giving Mr Woodman not only the footnote references, but the underlying first and second category documents to which they relate.

IBAC’s power in s 162(1) to transmit a special report to Parliament is discretionary. If it is not done fairly, it is not lawfully done.

Mr Woodman’s submissions – legal reasonableness

As part of ground 3, Mr Woodman also argued that IBAC was required to act reasonably in deciding whether to exercise its discretionary powers in ss 162 and 164.[24] This includes acting reasonably in deciding whether to transmit the report to Parliament without first providing him with the reasonable opportunity to respond by informing him of the material it relied on. For IBAC to act otherwise would diminish the value of the report.
[24]Plaintiff’s Outline of Submissions dated 20 May 2022, 17 [52]; Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, 351 [29] (French CJ), 362 [63] (Hayne, Kiefel and Bell JJ), 370 [88] (Gageler J) (‘Li’).

IBAC’s submissions

IBAC argued that s 162(3) contained the extent of its obligations of procedural fairness in preparing a special report.

In any event, Mr Woodman had been put on notice of IBAC’s proposed adverse findings and comments by the provision of the Draft Report and his involvement in the extensive public examination process preceding the Draft Report.

IBAC argued that when proper regard was had to the content of the Draft Report, and the evidence available from the public examinations, Mr Woodman had not been denied a ‘reasonable opportunity’ to respond to adverse comments or opinions as required by s 162(3) or by procedural fairness.

IBAC referred to authorities concerning procedural fairness for the following propositions. The content of procedural fairness depends on all the circumstances, including the statutory context, the nature of the inquiry and the interests at stake.[25] Its scope may be validly limited because of countervailing interests including confidentiality and the performance of statutory functions, especially if a statute expressly recognises and aims to protect the interests of other persons competing with those of an affected person.[26] In such cases, courts accommodate competing interests by ‘moulding’ the content of procedural fairness accordingly.[27] The right to be heard includes the right to know the case to be met, but does not require disclosure of every document the decision-maker has considered or might consider in reaching a conclusion adverse to a person. Giving notice of the substance of that information is sufficient.[28] If a decision-making process involves multiple stages, the requirements of natural justice are satisfied if that process, viewed in its entirety, entails procedural fairness.[29]
[25]Citing Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation (1963) 113 CLR 475, 504 (Kitto J) (‘Mobil’).
[26]Defendant’s Outline of Submissions, 17 [50], citing VEAL, 97-100 [20]-[29] (Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ); South Sydney City Council, 393 [44] (Spigelman CJ), 436 [251], 439 [267] (Mason P), 445 [297] (Ipp AJA); Mobil, 504.
[27]Ibid, citing VEAL, 100 [29] (Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ).
[28]Ibid 17 [51], citing Mahon v Air New Zealand Ltd [1984] AC 808, 821 (Lord Diplock); Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180, 207 [83] (French CJ, Kiefel, Bell, Gageler, Keane, Nettle and Gordon JJ); South Sydney City Council, 393 [44] (Spigelman CJ), 439 [267] (Mason P), 445 [297] (Ipp AJA); Minister for Immigration and Citizenship v SZQHH (2012) 200 FCR 223, 234 [30] (Rares and Jagot JJ) (‘SZQHH’).
[29]Ibid 18 [52].

IBAC’s submissions – legal reasonableness

IBAC submitted that the test of legal unreasonableness was stringent and that principle is analogous to, and closely linked to, procedural fairness. If IBAC has afforded Mr Woodman procedural fairness by giving him a reasonable opportunity to respond, it could not have acted unreasonably.

Analysis of ground 3

In my opinion, s 162(3) does not replace or exclude the requirements of procedural fairness, but is an additional right which overlaps with some of the requirements of procedural fairness. But procedural fairness may apply more widely than s 162(3) which is only engaged when IBAC intends to include a comment or opinion which is adverse to a person. The requirements of procedural fairness can only be excluded by plain words of necessary intendment, which s 162 does not contain.[30]
[30]Citing Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252, 259 [14]-[15] (French CJ, Gummow, Hayne, Crennan and Kiefel JJ) (citations omitted); Ainsworth, 577-8 (Mason CJ, Dawson, Toohey and Gaudron JJ).

Analysis

I consider that the text contains comments or opinions which are adverse to Mr Woodman, [redacted].

The excerpt from the Draft Report is connected to allegations that were put to Mr Woodman in his public examination. But, the allegation arose in connection with his telephone conversation with [redacted], which was the second of the two days referred to in the excerpt. Mr Woodman gave the following evidence about that conversation:[45]

[Redacted].

[45][Redacted].

In this evidence, Mr Woodman admitted the central proposition contained in the excerpt from the Draft Report to which footnote 232 is attached that he and [redacted] anticipated using [redacted] to put forward a motion at Council to rework its recommendations on amendment C219. It follows that he could not reasonably require further information about the adverse material, being the [redacted] in order to respond to it.

Mr Woodman has not established that he is entitled to the substance of the [redacted] referred to in footnote 232, whether by reason of s 162(3), or because of the principles of procedural fairness.

Volume 1, footnote 233

Footnote 233 is attached to the following excerpt from [redacted]:

[Redacted].

[Redacted].

Mr Woodman’s submissions

Mr Woodman submitted that this excerpt contains [redacted].

IBAC’s submissions

IBAC again pointed out that this excerpt formed [redacted]. Mr Woodman’s complaint appeared to be that the alleged fact is too general for him to respond to rather than about access to the underlying evidence.

Analysis

In my opinion, the excerpt contains [redacted]. They are the adverse material on which the adverse comment or opinion is based. Their substance is not given in the excerpt, rather it contains a comment or opinion about their effect. Subject to one qualification, Mr Woodman has established that, under s 162(3), IBAC must provide him with footnote 233 and the relevant substance of the [redacted] so that he may have a reasonable opportunity to respond to the adverse material. It was not suggested that IBAC had put the ‘substance’ of the comment or opinion to Mr Woodman during his witness examination. I also consider that IBAC has a similar obligation to provide Mr Woodman with the footnote and the relevant substance of the [redacted] because of its obligations of procedural fairness as their content appears to have been credible, relevant and significant information relied on by IBAC in its findings about Mr Woodman in the Draft Report. The qualification is that the Court must be satisfied that the [redacted]. That issue was not addressed in any detail at the trial and I will hear the parties further about it.

Volume 1, footnote 250

Footnote 250 relates to the following excerpt from [redacted]:

[Redacted].

[Redacted].

Mr Woodman did not ultimately rely on the words [redacted] for the purpose of seeking further access to adverse material. But, he relied on the first part of that sentence to establish that IBAC was obliged to provide him with access to the contents of footnote 250.

Mr Woodman’s submissions

Mr Woodman submitted that the opening part of the excerpt suggested that IBAC had obtained evidence from sources, including [redacted], which indicated that [redacted]. He argued that this was a highly prejudicial assertion, comment or opinion about him, to which he is not able to respond without having access to their evidentiary basis. [Redacted].

IBAC’s submissions

IBAC pointed out that this excerpt was part of the introductory paragraphs of section 4.1.5 of the Draft Report, which contained [redacted]. When the Draft Report was read as a whole, the excerpt to which footnote 252 was attached appears as a mere statement that the findings contained in it were based on evidence, which was described later in the Draft Report. [Redacted]. The substance of the proposed finding was put to Mr Woodman in his public examination and to [redacted] who could have been cross-examined by Mr Woodman’s counsel.

Analysis

The proposition in the excerpt is a statement of opinion that is adverse to Mr Woodman as it appears under the heading [redacted]. I accept that the substance of the allegations contained in the excerpt to which footnote 250 is attached was put to Mr Woodman in the following passages:[46]
[46]IBAC Public Examination Transcript, 176-8, 240-3.

[COUNSEL]: Did you ever refer to having a team of councillors? --- The word “team” I recall is used at election time, but this is not considered to be a reflection of a team as in, I think as you put it, people who felt that they should support something that wasn’t otherwise supportable.
So at election time you would have a team, would you? --- At a?
At a council election time you would have a team? --- No, no, sir.
But when you said “at election time there would be a team”, what did you mean by that? --- It means that if at election time we have a group of people who are like-minded who have been elected, you may call them in a loose fashion a team.
And you do what you do, what you can, to get those people elected. That’s the name of the game, isn’t it? --- No.
Well, having recognised that there are a team of like-minded people like yourself, are you saying that you’d make no special effort to get those people elected as opposed to others who might not be like-minded? --- The term “team” is a very loose word, sir, and not one that I would use in relation to the email that you have shown me.
…
Did you see that there was some sort of core team and wider team of councillors involved in voting on issues that concerned you? Did you have a team? --- No, sir.
Did you in October of 2015 see [redacted]. Did you see them as part of your core support in that council? --- It would depend on the individual issue that we were talking about, sir.

I also accept that the ‘general’ statement contained in the excerpt needs to be read as part of the Draft Report, which gives more details of the allegations. But Mr Woodman did not admit in his public examination that he had used a core group of councillors to influence council decisions. In any event, in issue is not the substance of the comments or opinions expressed that are adverse to Mr Woodman, but the substance of the adverse material relevant to him on which they were based, which in this case includes [redacted] of which he has been given no significant details. Subject to one qualification, Mr Woodman has established that, under s 162(3), IBAC must provide him with footnote 250 and the relevant substance of the [redacted] so that he may have a reasonable opportunity to respond to that adverse material. It cannot be assumed that the relevant substance of those [redacted] is to the same effect as the comments and opinions contained in the excerpt from the Draft Report. I also consider that IBAC has a similar obligation to provide Mr Woodman with the footnote and the relevant substance of the [redacted] because of its obligations of procedural fairness as their content appears to have been credible, relevant and significant information relied on by IBAC in its findings about Mr Woodman in the Draft Report. The qualification is that the Court must be satisfied that the [redacted]. I will hear the parties further about that issue.

Subject to being satisfied that the Court is not prevented by the [redacted] from so ordering, I consider that Mr Woodman is entitled under s 162(3) as well as by his rights to procedural fairness to be provided them by IBAC.

Volume 1, footnote 329

Footnote 329 relates to the following excerpt from [redacted]:

[Redacted].

Footnote 329, which is a substantive footnote, states:

[Redacted].

Mr Woodman’s submissions

Mr Woodman submitted that this excerpt, read in the broader context of [redacted], indicates that the footnoted material contains credible, relevant and significant information, even if IBAC was not expressly relying on it for the purpose of making a particular adverse finding about him.[47] [Redacted].
[47]Citing VEAL.

IBAC’s submissions

IBAC disputed that the excerpt contained a factual allegation adverse to Mr Woodman and argued that the Draft Report did not find, expressly or by implication, that [redacted].

[Redacted].

The sentence accompanying footnote 329, which I have underlined, [redacted]:

[Redacted].

Furthermore, the Draft Report when transmitted to Parliament will only contain the underlined sentence extracted above and not the text of footnote 329, [redacted]. As the passage relies on Mr Woodman’s own evidence, he could not maintain that he had not been given sufficient information to have a reasonable opportunity to respond to any adverse material upon which the adverse comment or opinion was based.

[Redacted].

Analysis

The parties’ dispute about footnote 329 now only concerns the second part, being the part underlined [redacted].

I am not persuaded that this except from the Draft Report or the footnote attached contains any adverse comment or opinion about Mr Woodman, [redacted]. Therefore, Mr Woodman has not established that either s 162(3) or the principles of procedural fairness require that he be provided with any details of the [redacted].

Volume 1, footnote 436

Footnote 436 relates to the following excerpt from [redacted]:

[Redacted].

Footnote 436 states:

[Redacted].

The H3 intersection project involved the construction of an intersection with signals on Hall Road, Cranbourne West, that Council considered in 2018.

Mr Woodman’s submissions

[Redacted]. But, Mr Woodman submitted, that in any event, [redacted] contained adverse material, which satisfied the credible, relevant and significant test and he was entitled to be provided with its substance in order to make a response. The excerpt and the footnote do not disclose [redacted] or their contents and without access to the footnote [redacted], Mr Woodman could not respond to the adverse material upon which the excerpt was based.

IBAC’s submissions

[Redacted]. Procedural fairness would not ordinarily require a decision-maker to disclose issues of which a person already had notice.[48] IBAC explained that it was opposing the disclosure of this footnote as a matter of principle.
[48]SZQHH, [30] (Rares and Jagot JJ).

Analysis

[Redacted].

[Redacted].

Taken in the context of those passages, the excerpt contains comments or opinions that are adverse to Mr Woodman, [redacted].

I do not accept IBAC’s submission that procedural fairness never requires a decision-maker to disclose documents, containing credible, relevant and significant evidence or information, [redacted]. I do not consider that the judgment of Rares and Jagot JJ in Minister for Immigration and Citizenship v SZQHH,[49] on which IBAC relied, establishes that as a universal proposition. It all depends on what, in the circumstances, the person will reasonably require to respond to the adverse material.
[49](2012) 200 FCR 223, [28]-[30].

I consider that Mr Woodman has established that, under s 162(3), IBAC must provide him with footnote 436 and the [redacted] to which it refers, so that he may have a reasonable opportunity to respond to the adverse material contained in the excerpt to which footnote 436 is attached. I also consider that IBAC has a similar obligation to provide Mr Woodman with the footnote and [redacted] because of its obligations of procedural fairness as the document appears to have been credible, relevant and significant information relied on by IBAC in its findings about Mr Woodman in the Draft Report.

Volume 1, footnote 558

Footnote 558, which is a substantive footnote, is attached to the following excerpt from [redacted]:

[Redacted].

Footnote 558 states:

[Redacted].

Mr Woodman’s submissions

Mr Woodman explained that the passage to which footnote 558 is attached was an excerpt from [redacted].

Mr Woodman argued that footnote 558 was significant because it supported the finding that [redacted] from which the excerpt was taken, he was unable to understand or respond to the adverse factual allegations contained in it. He required access to the [redacted] referred to in the footnote.

IBAC’s submissions

[Redacted].

[Redacted].

[Redacted].

Analysis

[Redacted].

I do not consider that Mr Woodman has established that he should be granted access to footnote 558. [Redacted]. The excerpt appears to be part of a conclusion based on preceding sections of the Draft Report. There is nothing to suggest that it is based on any other document or information other than what is set out in the preceding sections of the Draft Report which I have summarised above.

Volume 1, footnote 591

Footnote 591 is attached to the following excerpt from [redacted]:

[Redacted].

Footnote 591, which is a substantive footnote, states:

[Redacted].

Mr Woodman’s submissions

[Redacted].

Footnote 591 refers to [redacted], which were evidence and analysis which had not been put to, or revealed to, Mr Woodman and to which he could not meaningfully respond. [Redacted]. He was entitled to know IBAC’s basis for that assertion so that he could respond to its conclusions. This could be done by revealing the document or documents referred to in the footnote.

IBAC’s submissions

IBAC pointed out that the excerpt appears in the section of the Draft Report giving an overview of [redacted]. It contains a factual proposition rather than an opinion or comment adverse to Mr Woodman. In any event, the excerpt contains a sufficiently particularised proposition, [redacted]. Mr Woodman would know, or could ascertain, [redacted], and he could present evidence of [redacted], deny its existence, or correct any mistaken assertion about [redacted]. None of those steps depended on him being provided with the underlying evidence referred to in footnote 591. In fact, Mr Woodman had accepted the substance of this proposed finding in his public examination, when he gave evidence that, [redacted].

Mr Woodman’s real complaint was the finding that [redacted]. If that was incorrect, he could establish that in his response.

Analysis

I consider that footnote 591 is a proposition of fact contained in the ‘overview’ section to this part of the Draft Report. I do not consider that it contains a comment or opinion that is adverse to Mr Woodman. At most a difference exists between Mr Woodman’s evidence in his public examination about his involvement in [redacted] and IBAC’s description of that involvement in the excerpt to which footnote 591 is attached. If the excerpt or the footnote contains an incorrect statement as to [redacted], Mr Woodman can correct that error in a response made under s 162(3).

I therefore do not consider that Mr Woodman has established that IBAC must provide him with any further information about the contents of the excerpt or the footnote either because of the operation of s 162(3) or the principles of procedural fairness. I have taken into account that procedural fairness is not limited in its application to just adverse comments or opinions, but I do not consider that footnote and the text to which it is attached contain anything adverse to Mr Woodman.

Volume 1, footnote 849

Footnote 849 concerns the following excerpt from [redacted]:

[Redacted].

Footnote 849 states:

[Redacted].

Mr Woodman’s submissions

This excerpt appears in the part of the Draft Report that [redacted], underlined above, supported by evidence contained in footnote 849, which IBAC relied on and which met the credible, relevant and significant test. [Redacted]. That evidence is credible, relevant and significant information. Mr Woodman requires access to [redacted] in order to properly understand the evidence and respond.

IBAC’s submissions

IBAC submitted that the Draft Report’s finding that [redacted]. Mr Woodman could review [redacted] and respond accordingly. [Redacted].

Analysis

In my opinion, this excerpt and footnote, although concerning [redacted], contain an ‘adverse’ comment or opinion about Mr Woodman [redacted]. I consider that Mr Woodman has established that, under s 162(3), IBAC must provide him with footnote 891 and [redacted] so that he may have a reasonable opportunity to respond to the adverse material. I also consider that IBAC has a similar obligation because of its obligations of procedural fairness as that document appears to have been credible, relevant and significant information relied on by IBAC in its findings about Mr Woodman in the Draft Report. It cannot be assumed that Mr Woodman has access to a copy of [redacted] or that he has had sufficient opportunity to make submissions about it.[50] The fact that he does not seek access to adverse material about [redacted] to which the excerpt refers, does not detract from his entitlement to have access to the [redacted].
[50]Commissioner for the Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576.

Volume 1, footnote 953

Footnote 953 concerns the following excerpt from [redacted]:

[Redacted].

Footnote 953 states:

[Redacted].

Mr Woodman’s submissions

[Redacted].

Mr Woodman submitted that the excerpt describes [redacted]. In order to properly respond to this allegation and the material said to support it, Mr Woodman would require greater disclosure of the underlying documentation of footnote 953.

IBAC’s submissions

[Redacted].

IBAC contended that this excerpt did not contain an adverse comment or opinion about Mr Woodman, or a factual finding forming the basis for such a comment or opinion. When read in the context of the surrounding paragraphs, the excerpt clearly concerned [redacted].

[Redacted].

[Redacted].

Analysis

I do not consider that the extract, when read in the context of the surrounding sections of the Draft Report, contains any adverse comment or opinion about Mr Woodman. [Redacted]. Mr Woodman has not established that the extract contains any adverse comment or opinion about him. In those circumstances no question arises about whether s 162(3), or the principles of procedural fairness, require IBAC to provide with access to the substance of the [redacted] referred to in footnote 953.

Volume 2, footnote 318

Footnote 318 relates to the following excerpt from [redacted]:

[Redacted].

[Redacted].

[Redacted].

Mr Woodman’s submissions

[Redacted].

IBAC’s submissions

[Redacted].

The extract makes three findings: [redacted].

The first finding is sufficiently particularised to enable Mr Woodman to respond. [Redacted]. Mr Woodman would have access to [redacted] and, as a result, be able to respond to any comment or opinion based on them. Procedural fairness does not ordinarily require a decision-maker to disclose issues of which a person already has notice or information the substance of which is already known to the person.[51]
[51]Again IBAC relied on SZQHH, [30] (Rares and Jagot JJ).

The basis of the second finding is set out in the same section of the Draft Report: [redacted].

The basis of the third finding is set out in the same section of the Draft Report: [redacted].

[Redacted].

Analysis

I consider that the extract contains adverse comments or opinions about Mr Woodman as it suggests that the [redacted].

The Draft Report’s other references to [redacted]. Mr Woodman was examined at IBAC about his political donations made in 2018 which IBAC suggested amounted to about $221,000,[52] but I was not referred to any examination of [redacted]. It cannot be assumed that Mr Woodman would have access to all of the information required to respond to the adverse material on which the adverse comments or opinions were based.
[52][Redacted].

Mr Woodman has established that, under s 162(3), IBAC must provide him footnote 318 of volume 2, and the documents to which it refers, so that he may have a reasonable opportunity to respond to the adverse material, [redacted]. I also consider that IBAC has a similar obligation because of its obligations of procedural fairness as the content of the donation records appear to have been credible, relevant and significant information relied on by IBAC in its findings about Mr Woodman.

Volume 2, footnotes 348 and 349

Footnotes 348 and 349 relate to the following excerpt from [redacted]:

[Redacted].

Footnotes 348 and 349 read as follows:

[Redacted].

The footnote refers to the same material as the previous footnote being volume 2 footnote 318. The parties did not make oral submissions about footnotes 348 and 349, so I have included a summary of their written submissions.

Mr Woodman’s submissions

Mr Woodman submitted that this excerpt contained alleged facts relied on to support a hypothesis that [redacted]. That was an adverse comment or opinion. He would require access to the underlying [redacted] referred to in footnotes 348 and 349 in order to properly understand, evaluate and respond to that [redacted], and IBAC’s characterisation of it in the Draft Report.

IBAC’s submissions

IBAC submitted that the conclusion contained in this excerpt was supported by the following findings which were contained in the same section of the Draft Report:[53]

[Redacted].
[53][Redacted].

Analysis

I consider that the excerpt contains adverse comments or opinions about Mr Woodman as it suggests that [redacted]. As with the last footnote 318, I consider that Mr Woodman has established that, under s 162(3), IBAC must provide him with footnotes 348 and 349 and [redacted], so that he may have a reasonable opportunity to respond to the adverse material being [redacted]. I also consider that IBAC has a similar obligation because of its obligations of procedural fairness as the content of the [redacted] appears to have been credible, relevant and significant information relied on by IBAC in its findings about Mr Woodman in the Draft Report. Otherwise it is unlikely that Mr Woodman would be able to respond to the adverse material. [Redacted].

[Redacted].

As I concluded in respect of the same material when referred to in volume 2 footnote 318, I consider that Mr Woodman has established that IBAC is obliged by s 162(3) and the principles of procedural fairness to provide him with access to the documents relating to the [redacted].

Volume 2, footnotes 747 and 748

Footnotes 747 and 748 relate to the following excerpt from volume 2 of the Draft Report, which is contained in [redacted]:

[Redacted].

Footnotes 747 and 748 read as follows:

[Redacted].

Again I will summarise the parties’ written submissions as no oral submissions were made about these footnotes.

Mr Woodman’s submissions

Mr Woodman submitted that the excerpt contained a hearsay statement imputing to him [redacted]. In order to understand and respond to that imputation, he required, at a minimum, footnotes 747 and 748 and the transcript references referred to there.

IBAC’s submissions

[Redacted].

[Redacted].

Analysis

In my opinion, the extract contains adverse comments or opinions about Mr Woodman as it suggests that [redacted].

Mr Woodman has established that, under s 162(3), IBAC must provide him with the substance of the adverse material, on which the adverse comments or opinions were based, which is the substance of the relevant parts of the unredacted transcript of [redacted] referred to in footnotes 747 and 748 which concern [redacted]. I am satisfied that he requires that information so that he may have a reasonable opportunity to respond to the adverse material on which the excerpt relies. While the Draft Report contains details of [redacted], the material on which the comments and opinions contained in the excerpt are based includes the unredacted transcript and Mr Woodman has not received any details of its contents. The unredacted transcript is of a private examination, but the confidentiality considerations of such examinations can be accommodated by only requiring IBAC to provide Mr Woodman with the substance of the relevant parts of the transcript. I also consider that IBAC has a similar obligation because of its obligations of procedural fairness as the adverse material, the unredacted transcript, appears to have been credible, relevant and significant information relied on by IBAC in its findings about Mr Woodman in the Draft Report.

Mr Woodman’s claims to other documents

Mr Woodman’s claims extended beyond the 15 footnotes and attached text and sought first category documents related to private examinations, second category protected documents and credible, relevant and significant documents whose existence could be inferred. He relied on IBAC’s concession that he had not received first and second category documents. However, Mr Woodman bears the onus of proof to establish that IBAC has not complied with its obligations under s 162(3) or with the requirements of procedural fairness.[54] I consider that Mr Woodman has not proved the existence of any document that should have been provided to him by IBAC in discharging those obligations other than in respect of the nine redacted footnotes in respect of which I have accepted his claims and the documents to which they refer. The fact that IBAC has not provided him with first or second category documents does not establish that they were documents to which IBAC was obliged to give him access by the requirements of s 162(3) or of procedural fairness.
[54]MZAPC v Minister for Immigration and Border Protection (2021) 95 ALJR 441, [39].

Mr Woodman submitted that I should draw a Jones v Dunkel[55] inference against IBAC, because it was the only party which could prove that there was no credible, relevant and significant material which had not already been given to him, but it had not attempted to do so.[56] He also contended, as previously mentioned, that IBAC had not established that any harm would be caused by disclosure of the details of private examinations or protected documents.
[55](1959) 101 CLR 298.
[56]See, variously, T 72, 221–2, 248, 271.

The parties made extensive submissions about whether a Jones v Dunkel inference should be drawn. IBAC argued that it had no adequate notice that a factual dispute existed as to whether the Draft Report disclosed all evidence or information upon which it had relied in drawing conclusions adverse to Mr Woodman, or which was credible, relevant and significant to those conclusions. Mr Woodman’s case ‘expanded’ at the hearing.

I do not consider that any Jones v Dunkel inference should be drawn in this case. Such an inference would not assist Mr Woodman prove his case that documents that should have been disclosed to him have not been. The onus of proof lies on Mr Woodman, and a Jones v Dunkel inference cannot be relied on to fill gaps in the evidence.[57]
[57]Jones v Dunkel (1959) 101 CLR 298, 308.

Conclusion

I find that IBAC has not complied with the requirements of s 162(3) and of procedural fairness by not granting him access to the following information or documents so that he may have a reasonable opportunity to respond to adverse material about which comments or opinions adverse to him were based:

(a) footnotes volume 1, 436 and 849 and volume 2, 318 and 348-349; and the documents referred to therein in this judgment;

(b) footnotes of private examinations, being footnotes referred to in volume 2, 747 and 748, and the substance of the redacted transcript referred to in those footnotes that is relevant to Mr Woodman;

(c) subject to further submissions, and the Court being satisfied that the [redacted] does not prevent such an order, footnotes 233 and 250 in volume 1 and their substance relevant to Mr Woodman.

I find that Mr Woodman has established grounds 1, 2 and 3 of his Amended Originating Motion as a result of those findings. I also find that Mr Woodman has established ground 3A in that IBAC would be acting without power if it transmitted a report in the form of the Draft Report before giving Mr Woodman a reasonable opportunity to respond to the abovementioned footnotes and documents. Ground 4 has not been established.

I do not accept that Mr Woodman is entitled to further information about footnotes 79, 232, 329, 558, 591 or 953 in volume 1 or the text to which they are attached.

I will list the matter for further submissions by the parties as to appropriate orders.

[2022] VSC 684

10 November 2022