Key Points:

The High Court's ruling in Cunneen seems to restrict the jurisdiction of ICAC to investigate the conduct of third parties in connection with the discharge of official functions by public officials.

The decision of the High Court in Independent Commission Against Corruption v Cunneen [2015] HCA 14 considered the capacity of the NSW Independent Commission Against Corruption (ICAC) to investigate alleged corruption by individuals in respect of their dealings with public officials. The decision is the first judicial consideration of a key term within the definition of "corrupt conduct" under the Independent Commission Against Corruption Act 1988 (NSW) (ICAC Act).

This article highlights the key aspects of the decision and its likely impact.

The alleged corrupt conduct in Cunneen

The decision arose as a result of a summons served by ICAC on the applicant to appear and give evidence at a public inquiry to investigate an allegation that she intended to pervert the course of justice. The substance of the allegation was that she and another person (her son, Mr Wyllie), counselled Ms Tilley (a friend of Mr Wyllie) to pretend to have chest pains so as to prevent investigating police officers from obtaining evidence of Ms Tilley's blood alcohol level at the scene of a motor vehicle accident. Importantly, the applicant’s alleged conduct was not being investigated for any possible effect on her own public official functions as a Crown Prosecutor.

The applicant sought a declaration from the Supreme Court of NSW that ICAC acted beyond power in issuing the summons because the alleged conduct was not “corrupt conduct” within the meaning of section 8 of the ICAC Act. The application was dismissed by a judge at first instance but that decision was reversed by a majority of the Court of Appeal. After granting special leave, the High Court dismissed the appeal by a 4:1 majority decision.

Corrupt conduct under section 8(2) of the ICAC Act

The term "corrupt conduct" is extensively defined in sections 8 and 9 of the ICAC Act. Under section 8 of the ICAC Act, the term is defined to relate to conduct by public officials (or former public officials), as well as conduct by individuals who are not public officials (third parties). Section 8(2) is one of the provisions of section 8 of the ICAC Act which can be applied in respect of alleged corrupt conduct by individuals who are not public officials.

A key part of the definition of “corrupt conduct” in section 8(2) of the ICAC Act, which was in issue before the High Court, refers to conduct which "adversely affects” (or “could adversely affect”) ... the exercise of official functions by any public official." As the majority pointed out, the phrase “adversely affect” (or “could adversely affect”) could mean either conduct which affects the probity of the exercise of an official function by a public official – or simply conduct which affects the efficacy of the exercise of that function – in the sense that the official might then exercise it differently from how it would otherwise have been exercised.

“Corrupt conduct" and third parties

In this case, the conduct which was the subject of ICAC's investigation was the alleged counselling of Ms Tilley by the applicant and her son. The issue was whether that conduct was conduct which could "adversely affect" the exercise of official functions by the investigating police officers?

According to the majority (Chief Justice French, and Justices Hayne, Kiefel and Nettle) the meaning of “adversely affect” (or “could adversely affect”) in the definition of “corrupt conduct” was to cover conduct which affects the probity of the exercise by a public official of their functions. In other words, the conduct in question must be conduct which has, or is likely to have an injurious effect or otherwise detract from the integrity of the exercise by a public official of their official functions. It was not sufficient to simply establish that the conduct could give rise to a reduction in the effectiveness or "efficacy" in the exercise of the relevant official function. The majority view was that the alternative interpretation could result in a broad array of criminal offences and other unlawful conduct falling within the term "corrupt conduct" which would not be within the ordinary understanding of what had been considered to be corruption in public administration, or be within the principal objects of the ICAC Act. Reference was also made by the majority to the possible effect that a broader interpretation might have on fundamental rights and privileges, bearing in mind ICAC’s extensive coercive powers.

In summary, the majority concluded that in order to establish "corrupt conduct" under section 8(2) of the ICAC Act, it was necessary to show that the conduct in question affected the probity of the exercise of an official function by a public official in one of the ways that is listed in section 8(1)(b)-(d).

It was accepted by the parties that if the definition was interpreted on the narrow basis that the alleged conduct by the applicant was not corrupt conduct within the meaning of section 8(2).

Consequences of the ruling

In the specific context of section 8(2) of the ICAC Act, the High Court ruling seems to restrict the jurisdiction of ICAC to investigate the conduct of third parties in connection with the discharge of official functions by public officials. It confines that jurisdiction to where the third parties’ conduct would give rise to (or could give rise to) wrongdoing or impropriety on the part of a public official in exercising their official functions in one or more of the following ways:

  • a dishonest or partial exercise of a power;
  • a breach of public trust; or
  • a misuse of information.

Since the decision ICAC has publicly identified several investigations and operations that may face legal difficulties as a result of it. It should be noted, as Justice Gageler (in dissent) explained, that the interpretation adopted by the majority would mean that third party conduct such as endemic collusion among tenderers in tendering for government contracts, or serious and systemic fraud in the making of applications for licences, permits or clearances issued under NSW statutes, could not be investigated by ICAC.

Beyond its immediate effect on the interpretation of the ICAC Act, it will be interesting to see what effect this decision will have in other jurisdictions that have anti-corruption legislation that contains key definitions that are similar in style or structure to section 8 of the ICAC Act.