The High Court has dismissed the appeal of the Independent Commission Against Corruption (the Commission) from the NSW Court of Appeal’s decision which held that the Commission does not have the power to investigate allegations that senior NSW prosecutor Margaret Cunneen SC perverted the course of justice.

The majority held that the expression “adversely affect” in section 8(2) of the Independent Commission Against Corruption Act 1988 (NSW) addressed conduct that adversely affects or could adversely affect the probity of the exercise of an official function by a public official.

It held that the definition of “corrupt conduct” did 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 matter, or make a different decision.

Ms Cunneen’s conduct, was of the latter type. The High Court held that the alleged conduct was therefore not “corrupt conduct” within the meaning of section 8(2) of the ICAC Act and as such ICAC, has no power to conduct the inquiry.

The decision has far-reaching implications for the ongoing role of the Commission as well as previous enquiries and findings, the validity of which have now been seriously thrown into question.

In its submissions to the High Court, the Commission specifically noted that it had decided to defer completing its reports into the investigations known as “Operation Credo” (allegations concerning corrupt conduct involving Australian Water Holdings Pty Ltd) and “Operation Spicer”(allegations concerning soliciting, receiving and concealing political donations) pending the determination of the appeal. Having regard to the Court’s holdings, it is likely that these investigations, or at least a significant part of them, were outside the jurisdiction of the Commission.

The Commission has also noted that the decision will have potential implications for at least three other current investigations which (unlike Operation Credo and Operation Spicer) have not yet been the subject of public inquiries.

Finally, there are numerous matters in which the Commission has already issued reports and made findings of corruption against individuals based upon an interpretation of that term which is significantly broader than the interpretation determined by the High Court. Unsurprisingly, we have already seen a flurry of applications by such persons to have those finding set aside.

The Commission has confirmed that it will consent to orders sought by Travers Duncan, John McGuigan, Richard Poole and John Atkinson in the NSW Court of Appeal to set aside corrupt conduct findings made against them in Operation Jasper. It will also consent to orders dismissing its appeal against the July 2014 decision of the Supreme Court to set aside the corrupt conduct finding against Mr Kinghorn.

The Commission has made a submission to the NSW Government to consider, as a matter of priority, amending section 8(2) to ensure that the section can operate in accordance with its intended scope and making any such amendment retrospective. The Baird government has said that it will consider the ICAC submission and that all options, including retrospective legislation, are on the table.

For a copy of our case note on this important decision click here

For a full copy of the High Court judgment click here