What’s in a Name? Fairness and a Reasonable Opportunity: AB v Independent Broad-Based Anti-Corruption Commission

Abstract

In AB v Independent Broad-Based Anti-Corruption Commission, the High Court of Australia will consider the level of disclosure that the rules of fairness require an investigative body to observe when finalising a draft report. The central issue is the tension between the duty to provide adverse material (enough for an affected person to have a fair chance to respond) and the need for the investigator to withhold some material (enough for it to still be able to discharge its function). This question has arisen as a narrow one of construction under s 162(3) of the Independent Broad-Based Anti-Corruption Commission Act 2011 (Vic), but it raises the age-old dilemma of the rules of fairness — how to protect the interests of someone who may be adversely affected by administrative action without unduly impairing the functions of the officials responsible for that action. This column argues that the dilemma may not be able to be resolved beyond the statement of broad principles.