This week, the High Court unanimously rejected a
challenge to the validity of legislation enacted by NSW Parliament
which retrospectively validated previous ICAC findings following
its earlier decision in ICAC v Cunneen. The decision
reaffirms findings of corruption made in a report by ICAC against
Travers Duncan and other directors of Cascade Coal in their
dealings in relation to a mining tenement in the Hunter
Following the release of the report, Duncan challenged the
validity of ICAC's findings on a number of grounds. In the
course of this challenge, the High Court delivered judgment in
ICAC v Cunneen, which significantly reduced the scope of
activity previously thought to be within the remit of ICAC (read
more about ICAC v Cunneen
It was accepted by the parties in this case that the decision in
ICAC v Cunneen left the findings against Duncan outside
the scope of ICAC's powers.
To prevent the overturning of previous findings of ICAC, the NSW
Parliament passed the Independent Commission Against Corruption
Amendment (Validation) Act 2015 (NSW) (the Validation
Act). In short, the Validation Act broadened the
definition of what constituted "corrupt conduct" prior to
the ICAC v Cunneen decision to include actions which
effected the efficacy (rather than the just the probity) of the
exercise of public administration – validating ICAC's
The Validation Act left Duncan with little prospects of success
and he challenged the validity of the Validation Act on the basis
that it was inconsistent with the Constitution, and thus outside
parliament's legislative powers.
The majority (French CJ, Keifel, Bell and Keane JJ) rejected an
argument that the Validation Act provided impermissible direction
to courts to exercise its inherent jurisdiction in a particular
manner in breach of the Kable principle. The court held
that the Validation Act, when properly construed, altered
substantive law to be applied by the courts in accordance with
their ordinary process – well within the scope of legislative
Additionally, the majority rejected an argument that the
Validation Act removed the jurisdiction of the Supreme Court, in
breach of the Kirk principle. Again on the basis that
while the substantive law had been changed, the jurisdiction of the
Supreme Court was not altered.
Nettle and Gordon JJ came to the same view, though on the basis
that the laws simply created a new or different legal regime,
again, this is within the bounds of legislative powers.
This decision substantially puts an end to a number of other
threatened challenges against previous findings of ICAC – it
also removes a barrier preventing ICAC from releasing findings in
respect of other current investigations.
AN END TO UNCERTAINTY
The Independent Commission Against Corruption Amendment Bill
2015 (NSW) was introduced into parliament this week.
The Bill, if passed, will broaden ICAC's powers. While the
limits that were identified in ICAC v Cunneen, will
as anticipated ICAC will be able to investigate and make
finding of corruption in respect of the some actions of private
citizens (rather than just government officials). These powers will
apply where the conduct is considered "serious" –
examples provided include:
fraud in relation to applications for licences or permits
facilitating the exploitation of mineral resources; and
dishonestly obtaining public funds for private advantage.
The Bill is likely to have bipartisan support. In combination
with the findings in Duncan v ICAC, the Bill provides a
welcome end to the uncertainty around the powers of ICAC to conduct
investigations and make findings of corruption.
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