High Court Cuts ICAC down to size

You may remember late last year that Crown Prosecutor Margaret Cunneen faced accusations of perverting the course of justice after her son’s girlfriend had a car accident.

The allegations were that Cunneen told Sophia Tilley, the girlfriend, to fake chest pains in order to avoid being breath tested after the crash.

The Independent Commission Against Corruption (ICAC) was quick to investigate, but whether it had the power to do so in the Cunneen case was up for debate.

Cunneen’s argument was that any investigation into her alleged conduct was a matter for police, not the ICAC, and that ICAC’s power is confined to investigating corrupt conduct within public office.

Corrupt conduct is defined by section 8(2) of the Independent Commission Against Corruption Act 1988 (‘the Act’) as that which:

“adversely affects, or that could adversely affect… the exercise of official functions by any public official.”

When the case got to the High Court, the interpretation of this phrase was pivotal to the case and would determine whether or not ICAC had the authority to investigate Cunneen.

What did the High Court say?

Fortunately for Cunneen, four of the five High Court Justices took her side and ruled that ICAC did not have such broad investigatory power; specifically, that section 8(2) of the Act did not confer power on ICAC to investigate crime generally.

The Court found it doubtful that the Act was ever intended to give ICAC the authority to pursue investigations in a:

“broad array of crimes having nothing to do with corruption in public administration apart from such direct or indirect effect as they might conceivably have upon the efficaciousness of the honest and impartial exercise of official functions by public officials.”

Accordingly, the High Court invalidated some of the power that ICAC had been exercising up until that point.

Why is this case significant?

You might be wondering, if Cunneen can still be investigated by the police and tried in court, what difference does it make whether her case was heard in a criminal trial or an ICAC investigation?

It actually makes a big difference – for example, those who participate in ICAC inquiries have no right to silence, unlike in court.

And anything you say during ICAC proceedings that may tend to incriminate you can be later used in court in other court proceedings – unless you object to your answer being used before you answer the question. So unless you are informed of this important aspect of ICAC proceedings (or have a criminal lawyer), you may not make the objection until it is too late or at all.

The High Court ruling means that ordinary citizens– not just big wigs like Margaret Cunneen – are protected against being investigated by the ICAC and losing their right to silence.

What next?

The ICAC is unhappy about the judgment, claiming that the High Court has got it wrong. It says this is despite the fact that the creators of ICAC, Professor Gary Sturgess and former NSW Premier Nick Greiner, agree with the High Court’s decision.

Now that ICAC has its tail between its legs, it is anticipated that many other investigations will be affected – past, present and planned.

But the ICAC wants to stop this from occurring, and is lobbying the NSW government to change the law to increase its power retrospectively – so that the legitimacy of other investigations won’t be questions.

Retrospective laws mean that the law is changed from a date sometime in the past; so, for example, something might be completely legal when you did it but becomes illegal later, or vice-versa. This kind of legislation is against public policy and is not meant to be introduced except in rare and exceptional circumstances.

A number of other investigations have been put on hold pending the outcome of the Cunneen case, including inquiries into NSW Liberal Party donations and Australian Water holdings.

Only time will tell whether the NSW government will amend the ICAC Act to put those investigations back on track and prevent past decisions from being called into question.