ICAC v Margaret Cunneen  HCA 14: ICAC Investigative Powers Contained
Today (15 April 2014) in Independent Commission Against Corruption v Margaret Cunneen & Ors  HCA 14 a majority of the High Court of Australia has held that the NSW Independent Commission Against Corruption (ICAC) has no power to conduct an inquiry into allegations that were made against the respondents, because the alleged conduct was not "corrupt conduct" as defined in section 8(2) of the Independent Commission Against Corruption Act 1988 (NSW) (the Act).
In essence the court has upheld the view that ICAC's power does not extend to the examination of conduct where it affects the effectiveness of the exercise of an official function by a public official such that, the official exercises the function in a different manner or makes a different decision.
The matter involved Ms Margaret Cunneen SC (a senior prosecutor in NSW), her son Mr Stephen Wyllie and Ms Sophia Tilley (the respondents in the High Court appeal).
The respondents were each served in October 2014 with a summons to give evidence at a public inquiry (the inquiry) to be conducted by ICAC.
The ICAC inquiry was to to investigate an allegation that at the scene of a car accident Ms Tilley, on the advice of Ms Cunneen and Mr Wyllie, pretended to have chest pains to avoid police testing of her blood alcohol level and that each of the three had acted with ". . . an intention to pervert the course of justice (the allegation).
Supreme Court NSW
The respondents commenced proceedings in the Supreme Court of NSW (see Cunneen and Ors v Independent Commission Against Corruption  NSWSC 1571 (10 November 2014)). They sought orders restraining ICAC from holding the inquiry and investigating the allegation.
In the Supreme Court of NSW the respondents contended that the allegation could not constitute “corrupt conduct” within the meaning of the Act and that as result, the Inquiry was beyond the scope of ICAC’s principal functions as set out in the Act section 13.
ICAC relied on section 8(2) of the Act which provides the test for corrupt conduct and states that “corrupt conduct” includes:
". . . conduct by any person (whether or not a public official) that could adversely affect, either directly or indirectly, the exercise of official functions by a public official (or a body of such officials) and which could involve any of certain matters listed in the sub-section".
The matters listed included perverting the course of justice, or attempting to do so.
Hoeben CJ at Common Law dismissed the respondents’ claim on 10 November 2014 finding that, on the assumption the facts supporting the allegation were true, the alleged conduct of the respondents could amount to perverting, or attempting to pervert, the course of justice. He held that the conduct satisfied both tests for “corrupt conduct” contained in section 8(2).
Court of Appeal NSW
The respondents appealed to the NSW Court of Appeal where Basten and Ward JJA allowed the appeal with Bathurst CJ dissenting (see Cunneen v Independent Commission Against Corruption  NSWCA 421 (5 December 2014)).
In the Court of Appeal their Honours held unanimously that the conduct alleged in the allegation could amount to attempting to pervert the course of justice. However, Basten and Ward JJA each held that the alleged conduct did not fall within the scope of ICAC’s functions. They construed section 8(2) looking at the focus of the Act, which in their judgment was on corruption in the public sector rather than on any unlawful conduct that may affect public administration. As a result their Honours found that the first part of section 8(2) of the Act was not satisfied, as ". . . a police officer being dissuaded by the alleged conduct from giving a blood alcohol test would not be acting dishonestly in the performance of his or her duties" -and it could therefore, not be said that the exercise of official functions by a public official could be adversely affected.
In his dissenting judgment Bathurst CJ held that the alleged conduct of the respondents could have the relevant adverse effect, due to potential impacts on court proceedings, when it is considered that a court is a body of judicial officers, all of whom are public officials. Effectively, it could divert the police from investigation and deny the jurisdiction of the court and ultimately frustrate the course of potential court proceedings or impair a court’s capacity to do justice.
Appeal to the High Court
On 9 December 2014, ICAC made application for special leave to appeal filed (12 December 2014) and undertook not to disturb any costs orders favourable to the respondents below and to pay the respondents' costs in the High Court.
Ground for High Court Appeal
The proposed ground of appeal is stated as:
"The majority of the Court of Appeal erred in holding that the allegation then being investigated with respect to the respondents could amount to perverting the course of justice, but could not amount to conduct that adversely affects, or could adversely affect . . . the exercise of official functions by any public official within the meaning of section 8(2) of the Act, such as to be capable of being investigated by ICAC under section 13(1)."
In dismissing the appeal, the majority of the High Court has found that the expression "adversely affect" in section 8(2) of the Act refers to conduct that adversely affects or could adversely affect the probity of the exercise of an official function by a public official.
"Corrupt conduct" as defined in the Act does not extend to conduct that adversely affects or could adversely affect ". . . merely the efficacy of the exercise of an official function by a public official in the sense that the official could exercise the function in a different manner or make a different decision".
Because the alleged conduct was not found to be conduct that could adversely affect the probity of the exercise of an official function by a public official, the alleged conduct was therefore, not corrupt conduct within the meaning of section 8 (2) of the Act and ICAC was held not to have the power to conduct the inquiry.
As we have previously reported (see) ICAC had issued a media release saying the NSW Court of Appeal decision “. . . fundamentally altered the basis of the Commission’s power with respect to significant parts of Operations Credo and Spicer” and that
“[t]he Commission [was then] seeking special leave in the High Court of Australia as a matter of urgency.” Also indicating at the time that operation Credo, currently investigating Australian Water Holdings, and Operation Spicer ,investigating allegations that members of parliament solicited and concealed payments from various sources and failed to disclose political donations, were all affected by the High Court result in the case:
“Until the proceedings are resolved, the Commission will not complete the reports in Operations Credo and Spicer.”
In the light of the above it will be interesting to see what ICAC and the NSW Government do next. However, it may also just be business as usual (see our previous article) where we noted from a report in The Conversation that it is clear the High Court case would be:
". . . decide[d on] 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[ed] 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".
Ultimately, the real question of the extent of what conduct ICAC should investigate is one for the NSW parliament and the powers it gives ICAC - and indeed the same applies for any Parliament currently using similar laws.
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