Government May Increase ICAC’s Power: A Good or Bad Thing?

The NSW Government is moving to quickly deal with the fall-out from the High Court’s decision in ICAC vs Cunneen, pushing urgent legislation through parliament to uphold past findings of the corruption watchdog.

The Independent Commission Against Corruption Amendment (Validation) Bill 2015 passed both houses and has been signed into law.

The bill comes after the High Court’s decision cast doubt over a number of previous investigations by the ICAC.

But while the legislation might have closed the “loophole” in terms of past cases, there are still wider implications for the investigation of corruption in NSW, with the government flagging a review of the ICAC’s jurisdiction and a possible increase of its powers.

The background of the case

It’s a saga that started out with allegations that NSW Crown Prosecutor Margaret Cunneen told her son’s girlfriend how to avoid a breath test after a car accident, proceeded to a corruption investigation, and ended with a string of legal hearings that led all the way to the High Court.

The case concerned the meaning of corrupt conduct under the ICAC Act, with the High Court deciding the commission’s investigation of the prosecutor fell outside its remit.

Before the decision, the ICAC used its powers to investigate corruption not only when public officials were thought to have acted dishonestly, but also when innocent public officials were deceived into dishonest conduct.

But the High Court held that a public official must knowingly be involved in the corruption, which had the effect of significantly narrowing the ICAC’s scope to investigate.

According to The Sydney Morning Herald, the decision had cast doubt on 50 ICAC investigations over the past decade, including 21 findings into a scheme to fraudulently obtain building licences, and 10 findings into security industry training organisations improperly assisting trainees to obtain security licences.

Previous ICAC findings secured

The newly-passed legislation will validate all past corruption findings by the ICAC, as well as the watchdog’s past actions in current investigations, including those related to Australian Water Holdings and donations to the Liberal Party.

However, current investigations are also effectively in limbo, with the government indicating that the ICAC will have the discretion to choose whether to continue its current investigations under its newly curtailed powers (in accordance with the High Court ruling), or to wait until the review of its powers is presented to parliament.

NSW Premier Mike Baird said in a press release that all past findings “should and will stand.”

“While the High Court’s recent decision raises important questions about the ICAC’s jurisdiction for the future, it should not provide those who have done the wrong thing in the past with a loophole. We need a strong ICAC, and we will have one.”

But the retrospective legislation has drawn fire from some quarters. One of the businessmen involved in the Cascade Coal investigation, who was set to benefit from the High Court decision, slammed the government’s move as being “totally at odds” with the rule of law and the separation of powers.

Cascade Director John McGuigan said in a statement: “The High Court in Cunneen did not reveal a loophole, but rather determined the proper scope and extent of ICAC’s powers.”

Government to consider granting more power to the ICAC

The government has also commissioned a review of the High Court decision to clarify the extent of the ICAC’s powers into the future, and has foreshadowed that further legislation might be required.

The review will be headed by former High Court Chief Justice Murray Gleeson, and will report back to parliament by July 10. The review will consider the appropriate scope of the watchdog’s jurisdiction, whether its powers should be limited or extended, and whether further legislation is needed to provide the ICAC with the power required to expose corruption.

What will happen now?

This case has created a storm of controversy. There’s nothing like salacious facts to fuel the fire of media interest, and this matter seems to have it all.

But it also raises some genuine concerns and questions about the future of the ICAC and the investigation of corruption in NSW, especially given that the government has highlighted the possibility of further legislation to strengthen the ICAC’s powers following the review.

How powerful will the ICAC become, and is this appropriate for such a body?

Some of the issues with restoring power to the ICAC

High Court Justice Stephen Gageler said in the decision that if the ICAC’s powers remained as they were, there was potential for the commission to be able to investigate just about anything, for example any occasion where a person lied to a police officer. This could potentially see the ICAC so bogged down with matters awaiting investigation that it would just about grind to a halt.

David Levine, the independent inspector who oversees the ICAC, issued a statement after the High Court decision saying that any introduction of retrospective legislation would have the effect of turning the ICAC into a second police force.

While there’s little doubt that it is important to weed out corruption amongst our public officials, neither scenario is desirable. But with the review due in by July, only time will tell.

If you are being investigated by ICAC in the wake of the High Court case and would like legal advice, contact a criminal lawyer who is experienced at representing clients under investigation and familiar with this specialised area of practice.