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Key decisions

  • AB (a pseudonym) v Independent Broad-based Anti-corruption Commission [2024] HCA 10

In AB (a pseudonym) v Independent Broad-based Anti-corruption Commission [2024] HCA 10 (13 March 2024) the High Court was required to construe section 162(3) of the Independent Broad-based Anti-corruption Commission Act 2011 (Vic) (‘IBAC Act) to determine what material the Independent Broad-based Anti-corruption Commission (‘IBAC’) had to provide a person with, for their comment, before releasing a report which includes an adverse comment about that person.

The objects of the IBAC Act and the functions of IBAC include, among other things, the identification, investigation and exposure of corrupt conduct. The IBAC Act provides a broad definition of ‘corrupt conduct’. The definition extends to include conduct by a public officer that constitutes the dishonest performance of their functions where such conduct constitutes a ‘relevant offence’. A relevant offence includes any indictable offence committed against an Act. IBAC may conduct a preliminary investigation in order to determine whether to dismiss, refer or investigate a complaint. IBAC’s powers of investigation, under the IBAC Act, include the compulsory examination of witnesses and production of documents or other things to IBAC. Compulsory examinations are typically conducted in private. IBAC also has the power to issue confidentiality notices during an investigation in relation to ‘restricted matters’, the disclosure of which IBAC considers, on reasonable grounds, would likely prejudice its investigation; the safety or reputation of a person; or the fair trial of a person charged with a criminal offence. On the conclusion of its investigation, IBAC may, among other things, cause a special report to be transmitted to each House of Parliament pursuant to sub-s 162(1) of the IBAC Act. Relevantly, section 162(3) of the IBAC Act provides: ‘if the IBAC intends to include in a report under this section a comment or 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’.

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