Knightsbridge North Lawyers Pty Ltd v State of New South Wales (No 2)  NSWSC 45
In this case, Schmidt J of the NSW Supreme Court considered, amongst other things, whether a failure to comply with a requirement in the Independent Commission Against Corruption Act 1988 (NSW) (ICAC Act) affected the validity of a decision made under that legislation. The Supreme Court determined that if there was a failure to comply with a requirement in the ICAC Act, it was not of a kind that would give rise to the conclusion that failure to comply should invalidate the decision.
In November 2016 the Independent Commission Against Corruption Amendment Act 2016 (NSW) (the Amendment Act) was enacted to amend the ICAC Act in order to, amongst other things, re-organise the structure of NSW Independent Commission Against Corruption (the ICAC) by introducing offices of Chief Commissioner and Commissioners and replacing the former single Commissioner structure. The Amendment Act came into force on 7 August 2017.
On 31 March 2017 the Independent Commission Against Corruption Regulation 2010 was amended by the Independent Commission Against Corruption Amendment (Commissioner) Regulation 2017 (NSW) (the Amendment Regulation). The object of the Amendment Regulation was to make a transitional provision relating to the first appointment of the Chief Commissioner and other Commissioners of the ICAC who were to take office on the commencement of the Amendment Act.
The ICAC was investigating the activities of the Awabakal Local Aboriginal Land Council (Awabakal Land Council). The investigation related to, amongst other things, the proposed sale and development of properties which the Awabakal Land Council owns and the question of whether any public official, being an Awabakal Land Council Board director, acted dishonestly and/or in breach of their duty as a Board member, in agreeing to or purporting to retain or retaining Knightsbridge North Lawyers Pty Limited (Knightsbridge), to act for the Awabakal Land Council on the proposed sale and development.
The ICAC summoned Knightsbridge to appear at its public inquiry into these matters.
Previously, in March 2018, Fagan J in Knightsbridge North Lawyers Pty Limited v Independent Commission Against Corruption  NSWSC 387 dismissed Knightsbridge’s application to restrain the ICAC from pursuing its inquiry.
The present decision concerned a challenge by Knightsbridge to the validity of the appointment of the ICAC’s Chief Commissioner and Commissioners. It sought, amongst other things, a declaration that the purported referral made pursuant to the Amendment Regulation and the purported appointments of the Chief Commissioner and Commissioners made under the ICAC Act, were invalid and of no effect.
In particular, Knightsbridge contended that the appointments of the ICAC’s Chief Commissioner and Commissioners were invalid because:
- the requirements of section 64A of the ICAC Act were not complied with. Section 64A of the ICAC Act required, among other things, that the Minister refer a proposal to appoint a person as a Commissioner to the Joint Committee in writing
- further, properly construed, section 64A of the ICAC Act did not empower the Joint Committee to advise of its decision not to veto the proposed appointments, until 8 August 2017 (the day after the Amendment Act came into force on 7 August 2017). Accordingly there was no power to make the appointments on 7 August 2017.
The State of New South Wales argued that if there had been any failure to comply with a statutory requirement when the appointments of the Chief Commissioner and Commissioners were made, Parliament did not intend that the consequence was the invalidity of the appointments.
The Supreme Court had regard to Project Blue Sky v Australian Broadcasting Authority  HCA 28 at  in which the High Court held that even an act done in breach, rather than attempted compliance with a condition such as that then imposed by section 64A of the ICAC Act, regulating as it does the exercise of an important statutory power, is not necessarily invalid and of no effect.
In this regard, the Supreme Court determined that the Chief Commissioner’s appointment was not rendered invalid by the failure to refer his proposed appointment to the Joint Committee in writing or by the confirmation of the appointment on 7 August 2017. If this involved a failure to comply with the requirements of section 64A of the ICAC Act, then it was not a failure of a kind which could give rise to the conclusion that the legislature intended that it render the Chief Commissioner’s appointment invalid.
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