The High Court has dismissed Travis Duncan's constitutional challenge to the NSW legislation which sought to validate prior acts done by ICAC which had been beyond its jurisdiction at the time they were done.
In July 2013, following a landmark investigation which was never out of the news, the Independent Commission Against Corruption released its report entitled "Investigations into the Conduct of Ian McDonald, Edward Obeid Senior, Moses Obeid and Others" (Report). That report made findings of corruption against a number of people including businessman Travers Duncan. Such findings were based upon a broad interpretation of "corrupt conduct" as defined in section 8(2) of the Independent Commission Against Corruption Act 1988 (NSW) (ICAC Act).
On 15 April 2015 the High Court delivered its judgment in Independent Commission Against Corruption v Cunneen (2015) 89 ALJR 275 (Cunneen). At that time Mr Duncan's attempts to challenge ICAC's findings were before the NSW Court of Appeal (having failed at first instance before McDougall J). The High Court in Cunneen held that "corrupt conduct" within ICAC's investigative judirsdiction under the ICAC Act did not encompass conduct which did not compromise the probity, as opposed to mere efficacy, of public administration. Given that the Report's findings against Mr Duncan did not suggest that his conduct had effected the probity of the exercise of any official function, the effect of the High Court's decision in Cunneen was that ICAC lacked jurisdiction to make findings of corrupt conduct against Mr Duncan.
Prior to the resolution of Mr Duncan's appeal, the NSW Parliament enacted the Independent Commission Against Corruption Amendment (Validation) Act 2015 (NSW) (Validation Act). The effect of the Validation Act was, relevantly, to retrospectively deem valid any investigation, examination inquiry, hearing, finding or report prior to the Cunneen decision, which would have been valid if the definition of corrupt conduct in the ICAC Act had extended to conduct that adversely affects, or could adversely affect, the efficacy (but not the probity) of the exercise of judicial functions.
Mr Duncan amended his NSW Court of Appeal challenge to argue that the Validation Act was invalid. That issue was removed to the High Court for determination.
Mr Duncan's argument was based upon the operation of the Validation Act by which ICAC's acts, which were invalid at the time that they were done, are "taken to have been, and always to have been, validly done". Duncan's lawyers argued that on a proper interpretation of the Validation Act, it operated not to validate the invalid acts of ICAC but, rather, to direct courts to treat as valid acts that were, and remain, invalid. It was further submitted that such operation would take from the Supreme Court of NSW power to grant relief on account of ICAC's jurisdictional error and, thereby, involve an interference with judicial power contrary to the Constitution.
The High Court rejected Mr Duncan's interpretation of the effect of the Validation Act which it described as 'distinctly implausible given the purpose of its enactment'. It held that the effect of the Validation Act was to change the meaning of "corrupt conduct", as a matter of substantive law, from the meaning given to that expression in Cunneen in respect of acts occurring prior to 15 April 2015. The Court held that the Validation Act operates so that the legal position is the same as if ICAC had been authorised by the ICAC Act to investigate and report on conduct that adversely affects, or may adversely affect, the efficacy (but not the probity) of the exercise of official functions. It attaches to the ICAC's findings legal consequences which it declares them to have always had. The Report becomes one recognised by the law as a report into "corrupt conduct" made under the ICAC Act. Those findings were also sufficient to dispose of Mr Duncan's alternative argument based upon s79 of the Judiciary Act which the Court did not otherwise consider.
The decision confirms the validity of the Validation Act which will have broader relevance to the validity of other investigations carried out and findings made by ICAC prior to the Cunneen decision. It will make valid the investigations, such as the investigations in Operation Credo and Operation Spicer, which were carried out prior to Cunneen and in respect of which ICAC previously put its reports on hold. It can expected that, following this decision and the legislation giving effect to the recommendations of the Gleeson Panel Review (which are currently before the NSW Parliament and are expected to pass), ICAC will proceed to issue its final reports into those investigations. Notably, however, as the Validation Act only operates in respect of acts (including findings and reports) which were done by ICAC before 15 April 2015, any findings made, or conclusions drawn, by ICAC in such reports will need to apply the more restrictive definition of "corrupt conduct". It will not bring to an end Mr Duncan's ongoing challenge to the ICAC findings made against him. That dispute will not return to the Court of Appeal to consider the remaining grounds of appeal.
To read the full High Court decision click here.