High Court Hearings in Independent Commission Against Corruption v Cunneen Begins

Thursday 12 March 2015 @ 10.42 a.m. | Crime | Judiciary, Legal Profession & Procedure | Legal Research

On 4 March 2015 the High Court began its hearing in Independent Commission Against Corruption v Cunneen [2015] HCA Trans 47, to determine whether the NSW Independent Commission Against Corruption (ICAC) has the power to investigate allegations that prosecutor Margaret Cunneen tried to pervert the course of justice by preventing police officers from obtaining relevant evidence in a matter involving her son's girlfriend (See our previous article Cunneen Succeeds In Halting ICAC Investigation, ICAC Urgently Appeals to High Court).

Background

Ms Cunneen, her son and his girlfriend commenced proceedings in the Supreme Court of NSW where they challenged ICAC’s inquiry on the basis that the events in question could not constitute “corrupt conduct” under section 8(2) of the Independent Commission Against Corruption Act 1988 (NSW) (the Act). At trial they were not successful, with Justice Hoeben finding that defining corrupt conduct should not be “unnecessarily read down”. However, on appeal, Justices Ward and Basten of the NSW Court of Appeal overturned the initial decision, finding that the Act was not simply concerned with unlawful conduct but rather ".  . .  if the unlawful conduct could lead to a public official exercising their functions dishonestly or improperly". Chief Justice Bathurst dissented saying that:

“[t]he conduct complained of could have the tendency to frustrate or deflect the course of possible curial or tribunal proceedings or to impair the court's capacity to do justice in the particular circumstances of the case”.

Basis for High Court Appeal

It is reported that ICAC believes its powers, current inquiries and many past findings are under threat after Ms Cunneen successfully blocked its plans to investigate the claims made against her and has, as a result, pursued the matter in the High Court.

The High Court So Far

It is reported that submissions made so far by ICAC's lawyers to the High Court claim that the case has the potential to seriously curtail its work, indicating that ICAC reports on current high-profile inquires into the Obeid-related Australian Water Holdings and NSW Liberal Party had been deferred until this case was resolved by the High Court.

Further, ICAC's submissions to the High Court are reported as also suggesting that as many as 26 past findings of corruption made by ICAC could now be in doubt if the NSW Court of Appeal decision stands.

ICAC's submission states:

"The Commission is charged with an important role in promoting the integrity and accountability of public administration in New South Wales, . . . It is of public importance for this court to resolve authoritatively which of the divergent views expressed below [in the NSW Court of Appeal], as to the scope of that important role, is correct."

Lawyers for Ms Cunneen on the other hand in their submissions have refuted the wider implications asserted by ICAC if the decision appealed is allowed to stand, pointing out that the Act's purpose is for the Commission to direct its attention to serious or systemic corruption.

"The interpretation contended for by the applicant goes far beyond the concept of corruption contemplated by the objects of the Act, . . . There is no allegation that the first respondent [Ms Cunneen] misused her public office . . . or that she attempted to exercise her public functions to influence any person at the scene of the accident . . . There is simply nothing in the allegations that demonstrates the adverse affectation required to enable ICAC to take jurisdiction."

While the High Court Case Continues

While the High Court case continues and, in the absence of a decision as yet, an interesting article in The Conversation make clear the two positions.

Firstly, that of ICAC, who argue that Chief Justice Bathurst's wider interpretation is correct because it is consistent with the ordinary meaning of the words in section 8(2) of the Act and that the majority in the NSW Court of Appeal improperly added to the language of the statute by

". . . reading into the definition an additional requirement that the conduct leads a public official to exercise their functions improperly".

In this, ICAC also relies on a broad interpretation of "corrupt conduct" consistent with the Act’s overarching purpose:

" . . . that parliament intended to bring a wide range of activities within ICAC’s investigative purview".

For Ms Cunneen, it is argued that the approach of the majority in the NSW Court of Appeal was consistent with the purpose of the Act. The argument points to section 2A and the notion that the Act is directed at the investigation of corruption involving or affecting public authorities and officials; that is, limiting it to "conduct that could lead a public official to act corruptly or improperly".

From this as The Conversation points out, it is clear the High Court case will ". . . decide a narrow question: can ICAC investigate their [the Cuneens'] conduct?" Its result is unlikely to effect similar statutes in other jurisdictions; and in any event, what ICAC or a body like it investigates, regardless of what happens in this High Court court case, is a matter for the NSW parliament able to be controlled by amending the Act. Thus, by subsequent amendment, the NSW Parliament could make it clear that ICAC’s investigatory power extends to,

".  . . conduct that may limit or prevent public officials from the proper exercise of their functions, regardless of whether it would have made them exercise those powers in a corrupt or improper way . . ."

or it could limit ICAC’s function to investigation of official and serious corrupt conduct only, leaving conduct such as that involving Ms Cunneen to the police.

As The Conversation states:

"Ultimately, the question of what conduct ICAC should investigate is one for the NSW parliament."

And indeed any Parliament currently having similar laws. 

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