The recent High Court decision of Independent Commission Against Corruption v Cunneen [2015] HCA 14 (ICAC v Cunneen) is important in clarifying the scope of the investigative powers of the ICAC.

Established by the NSW Government in 1989, the ICAC operates to investigate, expose and prevent corrupt conduct by public officials in the NSW public sector. The ICAC has broad powers, including to investigate complaints on their own initiative, compel documents and witnesses, enter premises and execute search warrants.

The nature and scope of the ICACs investigative powers are defined in sections 7, 8 and 9 of the Independent Commission Against Corruption Act 1988 (NSW)  (ICAC Act). As the operation of these sections had not previously received much judicial attention, the decision in ICAC v Cunneen is instructive in how these sections should be interpreted.

The decision

The proceedings related to an investigation into a complaint about the conduct of Deputy Senior Crown Prosecutor, Margaret Cunneen SC.

It was alleged that Ms Cunneen, together with her son, encouraged her son’s friend, Sophia Tilley, to pretend to have chest pains at the scene of a car accident. The intention of this was allegedly to prevent investigating police officers from obtaining evidence of Ms Tilley’s blood alcohol concentration, thus perverting the course of justice.

It is important to note that Ms Cunneen was not being investigated in her capacity as a public official. In these circumstances, the investigating police officers were the public officials and Ms Cunneen was a third party whose allegedly corrupt conduct affected their capacity to exercise their official duties.

The majority of the Supreme Court of NSW (Court of Appeal) found that Ms Cunneen’s conduct was not corrupt within the meaning of the ICAC Act. The High Court affirmed this decision and dismissed the appeal.

The decision’s importance

This decision gives much needed clarification to the limits of the ICAC’s investigative powers. The outcome depended on the High Court’s interpretation of sections 8(1) and 8(2) of the ICAC Act. Section 8(1)(a) of the ICAC Act defines corrupt conduct as conduct which adversely affects the exercise of official functions by any public official.

The key question to be determined was the meaning of the term ‘adversely affect’. The court suggested two possible interpretations, and their decision hinged on which interpretation was adopted. The first option was to give ‘adversely affect’ a narrow meaning, limiting it to conduct adversely affecting the probity of the exercise of an official function. The second option was to allow the term a broader meaning, extending conduct adversely affecting the efficacy of the exercise of official functions.

After considering the context and history of the Act, as well as principles of statutory interpretation, the majority decided on the former. Limiting the meaning of ‘adversely affect’ to conduct impacting on probity effectively curtails the investigative powers of the ICAC. Accordingly, the ICAC opposed this interpretation, submitting that this limitation will restrict their ability to perform their intended functions.

The majority’s interpretation of section 8(2) ICAC Act

On its establishment in 1988, then Premier of NSW, Nick Greiner, instructed that the ICAC ‘will not be a crime commission’, with their focus instead intended to be exclusively on public corruption. With this in mind, the High Court sought to give a meaning to the sections which is consistent with the overarching purpose of the Act.

The ICAC submitted that the words ‘adversely affect’ should be given their plain and natural meaning, which they argued is broad and capable of encompassing even a minor impact on the exercise of an official function. The majority of the High Court rejected this, instead holding that as ‘adversely affect’ is a ‘protean expression’ then it should be interpreted in the context in which it appears and which Parliament intended.

The majority of the High Court noted that a broad interpretation of ‘adversely affect’, which extends to the efficacy of the exercise of a public function, would allow a wide range of crimes to fall within the investigatory scope of the ICAC. To illustrate the unintended outcomes this could lead to, the majority of the High Court used several examples, such as (at paragraph [52]):

If a thief stole one of a public authority’s vehicles – say a garbage truck – the theft would qualify as corrupt conduct under s 8(2)(f) because, having lost the use of the truck, the authority could be rendered less able to discharge its official function of collecting garbage.

The High Court concluded that the preferred reading of sections 8(1) and 8(2) is in a way which operates to prevent public corruption, not crimes as described above. This means that the examples of corrupt conduct provided in section 8(2) must be committed in a context which then affects the probity of the exercise of an official function in one of the ways outlined in section 8(1)(b – d).

The minority’s alternative position

Justice Gageler in dissent in the High Court, and Chief Justice Bathurst in dissent in the Supreme Court of NSW (Court of Appeal), advocated a different approach, with Justice Gageler largely adopting the reasoning of Chief Justice Bathurst.

Justice Gageler viewed the majority interpretation of sections 8(1) and 8(2) of the ICAC Act as incorrect to the extent that they depart from the natural and ordinary meaning of the language used. Justice Gageler acknowledged that a broader reading has the potential to bring into the scope of the ICAC Act crimes such as tax evasion or any attempt to pervert the course of justice. Nonetheless, Justice Gageler maintained that allowing the appeal was the preferred approach.

Implications for State and Federal regulators

The decision in ICAC v Cunneen marks a significant shift in the position and powers of the ICAC, even casting doubt over previous corruption findings. Yet, regardless of the scope of their investigatory powers, ICACs jurisdiction still extends to the vast majority of NSW public sector agencies.

While this decision may effectively reduce the ICACs investigative powers, it is a timely reminder to all public sector employees, government departments and councils that engaging in any of the corrupt conduct covered by the ICAC Act carries a very real threat of a corruption finding, or at the very least, a great deal of public scrutiny and attention.