Victoria’s anti-corruption watchdog has agreed to remove negative findings from a report detailing a secret investigation, after a High Court challenge that integrity experts warn could limit the agency’s ability to function.
The High Court on Wednesday allowed an appeal by two anonymous parties against the Independent Broad-based Anti-corruption Commission. The case first appeared in the Supreme Court of Victoria in 2022.
The High Court has upheld an appeal against IBAC. Credit: Andrew Meares
The parties – a registered organisation under the Fair Work Act and a person described as a senior officer of that organisation – successfully argued they had not been given the opportunity to adequately respond to adverse findings in a draft of the special report. The report has not been publicly released. Neither of the parties can be named for legal reasons.
They argued that IBAC had not provided them with all the documents used to support the findings, but they were unsuccessful in the Supreme Court and the Victorian Court of Appeal before they took the case to the High Court.
On Wednesday, the High Court allowed their appeal and noted that IBAC had agreed it would not table a report in parliament that contained the “comment or opinion” at the centre of the case. This means the findings will be removed from page 32 of the report.
The court found that by doing so, IBAC was no longer breaching its requirement to consult over the adverse findings and the case was dismissed. Both sides were asked to pay their own legal costs.
IBAC’s probe began in 2019, and by the end of 2021, a redacted draft report was provided to the public officer who launched the appeal.
In its ruling, the High Court said IBAC’s investigation had examined “allegations of unauthorised access to, and disclosure of, internal email accounts” of a public body.
William Partlett, an associate professor at the University of Melbourne Law School, said the ruling would further slow down the release of IBAC reports.
He said the High Court’s decision was largely driven by the fact that Victoria’s legislation for IBAC was too ambiguous, and that it allowed the appellants to successfully argue they had not received “natural justice” under a broad definition of what this meant.
“It is not a particularly well-drafted piece of legislation; there are a lot of things that need be tightened up,” Partlett said.
“There is a possibility that some of the language in this High Court judgment is going to make it very difficult for IBAC to actually table reports. If parliament is interested in IBAC functioning effectively, it needs to amend this legislation.
“It’s ambiguous, and the High Court’s always going to interpret it in light of natural justice and in light of the rights of individual.”
An IBAC spokeswoman said the agency was “carefully reviewing the High Court decision to understand its operational implications”.
Geoffrey Watson, SC, of the Centre for Public Integrity.Credit: Alex Ellinghausen
Geoffrey Watson, SC, a director of the Centre for Public Integrity, said the court’s ruling would not stop investigations from happening but did show exactly how much material the commission would have to hand over to prevent further legal challenges.
He said Victoria’s IBAC laws, including tough restrictions on when public hearings could happen, had forced the anti-graft body into “appallingly cumbersome” procedures.
“That has allowed people to litigate this issue about whether or not they are getting natural justice,” Watson said. “The effect of that has been from time to time to delay reporting, not by months, but by years.
“They fight it at every level as fiercely as they can, often ineffectively in the end. But nevertheless, delay is a very great friend of those under allegations of corrupt conduct.”
Watson said the corruption watchdog law in NSW did not prescribe a specific right to procedural fairness in the same way as Victoria’s laws. The matter was instead covered by existing common law.
“It is actually simpler to comply with it because you then don’t get in a fight over the technical wording,” he said.