Gageler CJ
Gordon J
Edelman J
Steward J
Gleeson J
Jagot J
Beech-Jones J
9.
conclusion that a person has engaged in "corrupt conduct".[1] If it were otherwise, the protections afforded by s 162(2) and (3) would be illusory. The potential damage to the interests, including the reputation, of a public body, public officer or other person from the publication of a special report containing a conclusion that they engaged in corrupt conduct is manifest.[2]
23 Section 162(4) provides little assistance in construing s 162(2) and (3). Where IBAC intends to include in a special report a comment or opinion about a person that is not adverse to them, it is obliged to provide that person with the "relevant material" in relation to which IBAC intends to name them.[3] Section 162(4) does not afford that person an opportunity to respond to that material, much less require the inclusion of a response in any draft report.
24 With both s 162(2) and (3), the opportunity (or reasonable opportunity) IBAC must afford is to respond to the "adverse material". The text of those provisions suggests that "adverse material" is something different from the "adverse findings" and the "comment or … opinion which is adverse". Parliament could have provided that the opportunities afforded by s 162(2) and (3) respectively are to respond to the proposed "adverse findings" and the "comment or … opinion which is adverse", but it chose not to. Instead, the undefined phrase "adverse material" was utilised.
25 In construing that phrase, it is important to begin by identifying some basic propositions about the applicable common law principles of natural justice where a person's interests are likely to be affected by an exercise of power. First, such a person "must be given an opportunity to deal with relevant matters adverse to [their] interests which the repository of the power proposes to take into account in deciding upon its exercise".[4] Second, the person whose interests are likely to be
- ↑ See IBAC Act, ss 162(5)–(6), 165(5)–(6), which prevent such a conclusion being expressed in terms that a person is guilty of, or has committed, a criminal or disciplinary offence.
- ↑ See Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 ("Ainsworth") at 577–578 per Mason CJ, Dawson, Toohey and Gaudron JJ.
- ↑ AB [2022] VSCA 283 at [131] per Emerton P, Beach and Kyrou JJA.
- ↑ Kioa v West (1985) 159 CLR 550 ("Kioa") at 628 per Brennan J.
