Is ICAC Getting Too Big for Its Boots?

The Independent Commission Against Corruption (ICAC) is responsible for investigating allegations of corrupt conduct in the NSW public sector. The ICAC has undertaken a number of high-profile investigations in recent times, including the allegations of corruption surrounding Eddie Obeid and Australian Water Holdings, and the activities of some members of the NSW Liberal Party.

The power and authority of the ICAC has recently been called into question however with its attempt to investigate NSW prosecutor Margaret Cunneen over an allegation that she tried to pervert the course of justice. The commission is currently appealing a decision on its authority to investigate the matter in the High Court.

Appeal on top of appeal

The allegations against Ms Cunneen are based on an alleged conversation she had with her son’s girlfriend at the scene of an accident last year, where it has been suggested that Ms Cunneen advised the girlfriend to pretend to have chest pains so as to avoid a blood alcohol test.

Ms Cunneen’s initial supreme court bid to stop the inquiry failed, but her legal team appealed that decision late last year, and was successful. Ms Cunneen was able to obtain a ruling from the NSW Court of Appeal stating that the ICAC had no power or authority to investigate the matter.

Her lawyers stated that the investigation went outside the ICAC’s jurisdiction, as the allegation was not related to her role as a public prosecutor, but to her private life.

Ms Cunneen’s team also successfully argued that if the discussion with her son’s girlfriend did amount to perverting the course of justice, the matter should be investigated by police rather than the ICAC.

Two members of a three-judge panel determined that the allegation didn’t fall under the definition of corrupt conduct specified in the Independent Commission Against Corruption Act as it didn’t relate to her official function as a prosecutor, and it was questionable whether the conduct in question amounted to perverting the course of justice.

The ICAC sought leave to appeal the decision in the High Court, which was granted, and the matter is currently awaiting a hearing dte.

What is perverting the course of justice?

Making false statements to police falls into the category of perverting the course of justice. If found guilty, those who are convicted of this offence can face penalties ranging from a fine or community service, to up to seven years in prison.

In Ms Cunneen’s case, there was no evidence that she tried to influence a police officer to act in any manner other than as they saw appropriate, which means that the allegation is unlikely to fall within the definition of perverting the course of justice.

The ICAC’s argument

ICAC’s unsuccessful argument was that Ms Cunneen’s alleged statement to her son’s girlfriend had potential to have adversely affected a police officer’s official functions, and that it could have been an attempt to pervert the course of justice. This, it claimed, placed the allegation into the category of corrupt conduct under the ICAC Act.

How will it affect the ICAC if the decision is upheld in the High Court?

The ICAC is fighting on in the High Court. The commission claims that its powers, past findings and current inquiries could be threatened if Ms Cunneen is successful at blocking the investigation into her activities.

The ICAC has put reports on Australian Water Holdings and Liberal Party donations on hold until the final decision has been made. If the NSW Court of Appeal’s decision on Ms Cunneen’s appeal is upheld, and the ICAC is prevented from investigating, it is likely that certain aspects of other ICAC investigations will also be looked at more closely. It could be ruled that they also don’t fall into the category of corrupt conduct that the commission is mandated to investigate.

The ICAC is set up to deal with systemic and serious corruption, and lawyers for Ms Cunneen have argued that a single isolated phone call in a personal context is not serious enough to warrant an investigation, and that the ICAC is overstepping the mark. Others argue that removing some of the ICAC’s power regarding one investigation is undesirable as it could limit its ability to investigate other important matters, and this could have an adverse impact on the wider community as a whole.

Whatever the result of the High Court case, there is no doubt it will have significant implications for the future of the ICAC and its ability to investigate matters that don’t necessarily fall directly within the definition of corrupt conduct set out by the ICAC Act.