Independent Commission Against Corruption v Cunneen

• Jurisdiction: Australia Federal only
• Judge: French CJ,Hayne,Kiefel,Nettle JJ.,Gageler J.
• Judgment Date: 15 April 2015
• Neutral Citation: [2015] HCA 14
• Docket Number: S302/2014
• Court: High Court
• Date: 15 April 2015

[2015] HCA 14

HIGH COURT OF AUSTRALIA

French CJ, Hayne, Kiefel, Gageler and Nettle JJ

S302/2014

Independent Commission Against Corruption

Applicant

and

Margaret Cunneen & Ors

Respondents

Representation

J K Kirk SC with S Robertson for the applicant (instructed by Crown Solicitor (NSW))

D F Jackson QC with A R Moses SC and R L Gall for the respondents (instructed by Cockburn and Co)

Independent Commission Against Corruption Act 1988 (NSW), ss 2A, 8, 9, 12A.

Independent Commission Against Corruption v Cunneen

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.

Words and phrases — ‘adversely affect’, ‘and which could involve’, ‘corrupt conduct’.

ORDER

• 1. Special leave to appeal granted.

• 2. Appeal treated as instituted and heard instanter and dismissed with costs.

1 French CJ, Hayne, Kiefel AND Nettle JJ. This is an application for special leave to appeal from a decision of the New South Wales Court of Appeal. The principal question for determination is what is meant by the expression ‘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 ICAC Act’).

2 ‘Adversely affect’ is a protean expression. In this context, however, there are only two possibilities. Either it means adversely affect or could adversely affect the probity of the exercise of an official function by a public official, or it means 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.

3 The former meaning accords with the ordinary understanding of corruption in public administration and consequently with the principal objects of the ICAC Act as set out in s 2A. The latter would result in the inclusion in ‘corrupt conduct’ of a broad array of criminal offences and other unlawful conduct having nothing to do with the ordinary understanding of corruption in public administration or the principal objects of the ICAC Act. It would also enable the Independent Commission Against Corruption (‘ICAC’) to exercise its extraordinary coercive powers (with consequent abrogation of fundamental rights and privileges) in areas ranging well beyond the ordinary understanding of corruption in public administration and the principal objects of the ICAC Act. For those reasons, and the reasons which follow, the former meaning is to be preferred.

The history of the ICAC Act

4 The Independent Commission Against Corruption Bill 1988 was introduced into the New South Wales Parliament on 26 May 1988. In the course of the second reading speech, the then Premier of New South Wales, Mr Greiner, observed 1:

‘The third fundamental point I want to make is that the independent commission will not be a crime commission. Its charter is not to

investigate crime generally. The commission has a very specific purpose which is to prevent corruption and enhance integrity in the public sector. That is made clear in this legislation, and it was made clear in the statements I made prior to the election. It is nonsense, therefore, for anyone to suggest that the establishment of the independent commission will in some way derogate from the law enforcement role of the police or bodies such as the National Crime Authority. On the contrary, the legislation makes it clear that the focus of the commission is public corruption and that the commission is to co-operate with law enforcement agencies in pursuing corruption.

…

My fourth point is that the independent commission is not a purely investigatory body. The commission also has a clear charter to play a constructive role in developing sound management practices and making public officials more aware of what it means to hold an office of public trust and more aware of the detrimental effects of corrupt practices. …

The final point I want to make by way of introduction concerns the question of civil liberties. This commission will have very formidable powers. It will effectively have the coercive powers of a Royal commission. …

There will be those who will say that this legislation is unjustified interference with the rights of individuals who may be the subject of allegations. Let me make a number of points in response to that sort of claim. First, though the commission will be able to investigate corrupt conduct of private individuals which affects public administration, the focus is public administration and corruption connected with public administration. The coercive powers of the commission will be concentrated on the public sector.

Second, corruption is by its nature secretive and difficult to elicit. It is a crime of the powerful. It is consensual crime, with no obvious victim willing to complain.’

5 As a consequence of parliamentary debate, a number of amendments were agreed to and incorporated into the Independent Commission Against Corruption Bill (No 2) 1988 and that Bill was read a second time on 3 June 1988 2. The Bill, as amended, was enacted as the ICAC Act.

6 As enacted, ss 8 and 9 of the ICAC Act defined ‘corrupt conduct’ as follows:

‘8. General nature of corrupt conduct

• (1) Corrupt conduct is —

  • (a) any conduct of any person (whether or not a public official) that adversely affects, or that could adversely affect, either directly or indirectly, the honest or impartial exercise of official functions by any public official, any group or body of public officials or any public authority; or

  • (b) any conduct of a public official that constitutes or involves the dishonest or partial exercise of any of his or her official functions; or

  • (c) any conduct of a public official or former public official that constitutes or involves a breach of public trust; or

  • (d) any conduct of a public official or former public official that involves the misuse of information or material that he or she has acquired in the course of his or her official functions, whether or not for his or her benefit or for the benefit of any other person.

• (2) Corrupt conduct is also any conduct of any person (whether or not a public official) that adversely affects, or that could adversely affect, either directly or indirectly, the exercise of official functions by any public official, any group or body of public officials or any public authority and which involves any of the following matters:

  • (a) official misconduct (including breach of trust, fraud in office, nonfeasance, misfeasance, malfeasance, oppression, extortion or imposition);

  • (b) bribery;

  • (c) blackmail;

  • (d) obtaining or offering secret commissions;

  • (e) fraud;

  • (f) theft;

  • (g) perverting the course of justice;

  • (h) embezzlement;

  • (i) election bribery;

  • (j) election funding offences;

  • (k) election fraud;

  • (l) treating;

  • (m) tax evasion;

  • (n) revenue evasion;

  • (o) currency violations;

  • (p) illegal drug dealings;

  • (q) illegal gambling;

  • (r) obtaining financial benefit by vice engaged in by others;

  • (s) bankruptcy and company violations;

  • (t) harbouring criminals;

  • (u) forgery;

  • (v) treason or other offences against the Sovereign;

  • (w) homicide or violence;

  • (x) matters of the same or a similar nature to any listed above;

  • (y) any conspiracy or attempt in relation to any of the above.

• (3) Conduct may amount to corrupt conduct under this section even though it occurred before the commencement of this subsection, and it does not matter that some or all of the effects or other ingredients necessary to establish such corrupt conduct occurred before that commencement and that any person or persons involved are no longer public officials.

• (4) Conduct committed by or in relation to a person who was not or is not a public official may amount to corrupt conduct under this section with respect to the exercise of his or her official functions after becoming a public official.

• (5) Conduct may amount to corrupt conduct under this section even though it occurred outside the State or outside Australia, and matters listed in subsection (2) refer to —

  • (a) matters arising in the State or matters arising under the law of the State; or

  • (b) matters arising outside the State or outside Australia or matters arising under the law of the Commonwealth or under any other law.

• (6) The specific mention of a kind of conduct in a provision of this section shall not be regarded as limiting the scope of any other provision of this section.

9. Limitation on nature of corrupt conduct

• (1) Despite section 8, conduct does not amount to corrupt conduct unless it could constitute or involve —

  • (a) a criminal offence; or

  • (b) a disciplinary offence; or

  • (c) reasonable grounds for dismissing, dispensing with the services of or otherwise terminating the services of a public official.

…’

7 Thus, as enacted, s 8(2) had two limbs: the ‘that could adversely affect’ limb and the ‘and which involves’ limb, and s 9 imposed a third criterion, that the conduct involve a crime...