Australia: ICAC v Cunneen: implications for corruption watchdogs

Clayton Utz Insights

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.

You might also be interested in...

Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this bulletin. Persons listed may not be admitted in all states and territories.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Mondaq Advice Centre (MACs)
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.