Gageler CJ
Gordon J
Edelman J
Steward J
Gleeson J
Jagot J
Beech-Jones J
13.
understandable that Parliament would not make the same assessment in relation to the material said to justify the adverse findings, comments or opinions in such a report. For example, that material could include publicly available information. Once these matters are accepted, it follows that it is not improbable that Parliament intended to afford IBAC flexibility in determining whether to impose confidentiality restraints in relation to such material while also imposing a blanket restraint on the release of a draft report.
32 It follows that the appellants' sole ground of appeal should be upheld. The Court of Appeal erred in construing the phrase "adverse material" in s 162(3) of the IBAC Act. That phrase refers to the evidentiary material said by IBAC to justify a "comment or … opinion which is adverse to any person". In most cases, including this one, it would be expected that a reasonable opportunity to respond to that evidentiary material will be afforded by proffering a reasonable opportunity to respond to the substance or gravamen of that material, which will usually involve a full account of its essential content. In some cases, more may be required where the provision of the substance or gravamen of the material is not sufficient to discharge IBAC's obligation under s 162(3).
Outcome of the appeal
33 In their written submissions, the appellants identified various passages from Pt 5 of the Draft Report as examples of adverse comments or opinions in respect of which IBAC had not complied with s 162(3) as properly construed. However, most of these passages were not the passages from Pt 5 that the appellants relied on before the Court of Appeal[1] and were not identified in their application for special leave as proposed grounds of appeal. The appellants should not be permitted to raise complaints about the Draft Report that were not raised before the Court of Appeal. Otherwise, the appellants sought the remitter of the proceedings to the Court of Appeal for that Court to address their complaints about Pt 5 of the Draft Report in accordance with the correct construction of s 162(3).
34 IBAC contended that, even if the appellants' construction of the phrase "adverse material" in s 162(3) was upheld, the appeal should nevertheless be dismissed. IBAC contended that the Court of Appeal construed s 162(3) as requiring the disclosure of the substance of material beyond that included in the Draft Report if such disclosure was necessary to afford a "reasonable opportunity"
- ↑ AB [2022] VSCA 283 at [87] per Emerton P, Beach and Kyrou JJA.
