The decision of the High Court in the recent ICAC v Cunneen appeal has raised all sorts of intriguing legislative, political, policy and Constitutional issues including:

  • What is corruption?
  • What is the proper scope of the special inquisitional powers given to tribunals such as ICAC?
  • How do such special investigatory/inquisitorial tribunals fit into the broader (adversarial) justice system?
  • How do we protect the usual legal rights of those who deal with government agencies?
  • Is the NSW Government’s retrospective legislation warranted?
  • Is the NSW Government’s retrospective legislation Consitutionally valid?

Having recently acted for a professional caught up in civil litigation brought off the back of ICAC’s ‘Operation Credo’, I believe that the High Court’s approach has much to recommend it as both an exercise in statutory construction and as an appropriate public policy outcome.

I see no reason why an attempt to mislead a government agency which does not involve any (successful or unsuccessful) attempt to corrupt an officer or employee of  that agency (in the sense of being designed to affect the probity of an official function) is a matter requiring the extraordinary powers given to ICAC. As pointed out in the majority judgment, the decision does not constrain ICAC’s ability to fight ‘corruption’ as the public understands that concept.

If a person attempts to mislead an official, such as a police officer, in the execution of their duties, it is a criminal matter which the mainstream justice system has the capacity to deal with while preserving the usual legal rights of that person to a fair hearing. If that person seeks to influence the probity of that same police officer’s exercise of their functions (whether or not they are successful), ICAC retains special coercive and investigative powers to address that conduct.

As the High Court pointed out, the interpretation advanced by ICAC would have the effect of ‘extending the reach of ICAC to a broad array of crimes having nothing to do with corruption in public administration’.

If there is a case for legislating a greater role for ICAC, it is not to legislate to give effect to the unnecessarily broad interpretation favoured by ICAC. There may, however, be a legislative middle ground. That could include defining an offence of ‘misleading or deceptive conduct tending to conceal corruption’ and to give powers to ICAC to investigate and make findings in respect of such conduct. Such offence should be broadly defined so that it is not dependant upon an actual finding of corruption by the relevant public official. That is, it would be sufficient if the conduct is misleading or deceptive and has the effect of concealing a matter which a reasonable person could be expected to know was likely to constitute or be conducive to corrupt conduct by a public official.

Premier Baird’s decision on 5 May 2015 to establish a review panel to be chaired by the former chief justice of the High Court, Murray Gleeson, QC and to include Bruce McClintock, SC (who conducted a well received review of the ICAC Act in 2005) sets up an appropriate framework  within which the above issues may be considered and from which sound policy decisions may be made.  The draft terms of reference to that review panel are appropriately drawn to allow a full and proper consideration of those issues. It is proposed that he panel will report by 10 July 2015.

Those opposing the breadth of the proposed terms of reference do so on political rather than policy grounds. Terms of reference drawn in a narrow way to restrict the range of appropriate policy outcomes available to the panel would only act to undermine the objectivity of the panel and constrain the value of its output. It is unlikely that jurists of the eminence of those named to date would agree to oversee a review hamstrung by such narrow terms of reference.

As for retrospective legislation to validate findings of corruption based upon a flawed interpretation of that term which the High Court has found does not accord with common public understanding of ‘corruption’? The political imperatives driving such legislation are compelling -  it will be seen as not being soft on ‘corruption’ (the public have been told so many times that the individuals involved are corrupt that they believe it to be true – regardless of what the High Court might have said) and it will avoid potential damages claims against ICAC which has been found to have acted outside its powers in making such findings. However, the  retrospective operation of the legislation is more difficult reconcile with any juristic notion of justice or fairness.

And now, it appears that the legislation may be on its way to the High Court with lawyers for Travers Duncan filing an application seeking to have the High Court decide whether that legislation in Constitutionally valid. That application is based on the argument that, in circumstances where the Government has not amended the powers of the ICAC, legislation to affirm its findings made without power amount to an ‘impermissible command or direction’ by the NSW Parliament, prohibiting the courts from ordering that ICAC had no power to make the findings against Mr Duncan and three of his associates also the subject of corruption finding by ICAC.

I’ll continue to follow these important issues with interest.

For a copy of the draft terms of reference to the ICAC review panel click here