Australia: NSW Government Bulletin - 15 April 2015

Last Updated: 16 April 2015
Article by Sylvia Fernandez, Christine Jones and Kim Nguyen

Most Read Contributor in Australia, September 2016

The High Court of Australia has today handed down its decision in Independent Commission Against Corruption v Cunneen [2015] HCA 14, with the majority dismissing the ICAC's appeal from the decision of the NSW Court of Appeal.

The principal question for determination by the High Court was what is meant by the words "adversely affects, or that could adversely affect ... the exercise of official functions by any public official" in the definition of "corrupt conduct" in s 8(2) of the Independent Commission Against Corruption Act 1988 (NSW) (the Act).

The majority, compromising their Honours French CJ, Hayne, Kieffel and Nettle JJ preferred the meaning:

adversely affect or could adversely affect the probity of the exercise of an official function by a public official,

over the competing meaning preferred by his Honour Gageler J in dissent:

adversely affect or could adversely affect 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 manner or make a different decision from that which would otherwise be the case.

The majority dismissed arguments that their preferred meaning gave s 8(2) of the Act no more to do than s 8(1) and set out the effect of the two sections in marking out two distinct kinds of conduct as corrupt conduct, in the following way:

  1. conduct of a public official that:
    1. constitutes or involves the dishonest or partial exercise of an official power (s 8(1)(b)); or
    2. constitutes or involves a breach of public trust (s 8(1)(c)); or
    3. involves the misuse of information or material acquired in the course of the public official's official functions (s 8(1)(d)); and
  1. conduct of any person, whether a public official or not, which could "adversely affect" the exercise of official functions by any public official in one of the following ways:
    1. if the conduct could "adversely affect" the honest or impartial exercise of the official function (s 8(1)(a)); or
    2. if the conduct could otherwise "adversely affect" the exercise of the official function and the conduct could involve one of the matters mentioned in s 8(2)(a)-(y).

The majority also noted that the alternative construction would lead to a wide variety of offences being included in the definition of corrupt conduct such as tax evasion, as it could deprive tax officers of the ability to collect tax and deprive government departments from revenue.

The majority stated (at 53-55):

It is not likely that an Act which is avowedly directed to investigating, exposing and preventing corruption affecting public authorities – and for which the justification for the conferral of extraordinary powers on ICAC was said to be the difficulty of discovering and exposing corruption in the nature of a consensual crime of which there is no obvious victim willing to complain – should have the purpose or effect of extending the reach of ICAC to a broad array of crimes having nothing to do with corruption in public administration apart from such direct or indirect effect as they might conceivably have upon the efficaciousness of the honest and impartial exercise of official functions by public officials.

The principle of legality, coupled with the lack of a clearly expressed legislative intention to override basic rights and freedoms on such a sweeping scale as ICAC's construction would entail, points strongly against an intention that ICAC's coercive powers should apply to such a wide range of kinds and severity of conduct. So does the impracticality of a body with such a wide jurisdiction effectively discharging its functions. It would be at odds with the objects of the Act reflected in s 2A. It would be inconsistent with the assurances in the extrinsic materials earlier referred to that ICAC was not intended to function as a general crime commission. And, last but by no means least, as Basten JA observed, an extended meaning of "corrupt conduct" would be far removed from the ordinary conception of corruption in public administration.

Logically it is more likely and textually it is more consonant with accepted canons of statutory construction that the object of s 8(2) was to extend the reach of ICAC's jurisdiction no further than to offences of the kind listed in s 8(2)(a)-(y) which could adversely affect the probity of the exercise of official functions by public officials in one of the ways described in s 8(1)(b)-(d).

Special leave was granted and the appeal dismissed, with costs.

At the time of publication, ICAC has not issued a media release on the decision. The ICAC previously (in 2014) announced that the majority decision of the NSW Court of Appeal fundamentally altered the basis of its powers with respect to significant parts of Operations Credo and Spicer and, pending the outcome of the special leave application, it would not complete its reports in respect of those investigations.

To start a conversation about Government Bulletin or issues of interest to NSW government lawyers, join the LinkedIn group NSW Government Lawyers by clicking on this link. Membership is open to lawyers employed in the public sector.

In the media

High Court rejects ICAC's bid to investigate Crown prosecutor Margaret Cunneen
The NSW Independent Commission Against Corruption has lost a high-stakes legal bid to investigate Crown prosecutor Margaret Cunneen over allegations she perverted the course of justice (15 April 2015) More...

ICAC loses Cunneen appeal in High Court
The NSW corruption watchdog has been told it has no power to investigate allegations of wrongdoing by prosecutor Margaret Cunneen SC, in a decision likely to have far-reaching consequences for the commission (15 April 2015) More...

Margaret Cunneen inquiry: ICAC loses High Court bid to investigate prosecutor
The New South Wales Independent Commission Against Corruption (ICAC) has lost a High Court bid to investigate crown prosecutor Margaret Cunneen (15 April 2015) More...

In practice and courts

Independent Commission Against Corruption v Margaret Cunneen & Ors [2015] HCA 14
Summary of Independent Commission Against Corruption v Margaret Cunneen & Ors [2015] HCA 14 judgment More...


Independent Commission Against Corruption v Margaret Cunneen & Ors [2015] HCA 14

Statutory bodies – Investigating commission – Independent Commission Against Corruption – Powers – Independent Commission Against Corruption Act 1988 (NSW), s 8(2) defines "corrupt conduct" as conduct that could "adversely affect" exercise of official function by public official – Whether conduct that could adversely affect efficacy, but not probity, of exercise of official function by public official "corrupt conduct".

Statutes – Interpretation – Context and purpose – Statutory definitions – Effect of express statement of objects of Act – Where purpose of Act cannot be identified without reference to terms to be interpreted.

Statutes – Interpretation – Extrinsic materials – Legislative history – Where legislation not amended after review of Act. More...

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Christine Jones
Kim Nguyen
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