The Government Validates ICACs Past Decisions: But the Fight is On!

ICAC was disappointed and concerned when the High Court ruled that it did not have the power to investigate lawyer Margaret Cunneen.

Ms Cunneen had been accused of perverting the course of justice for allegedly telling her son’s girlfriend to fake chest pains after a car accident to avoid a breath test.

Yet, even after the High Court rendered ICAC impotent to act against her, Cunneen still faced a potential prosecution in the criminal courts, despite the apparent lack of evidence against her.

Now, after seeking advice from the top prosecutor in Victoria, NSW authorities have decided that Cunneen will not face prosecution.

But for ICAC, the significance of the Cunneen loss went far beyond their investigation of the highly-respected Crown Prosecutor.

Many who have been the subject of adverse rulings by ICAC were eager to find out if they could use the decision to their own advantage.

It is believed that the Cunneen case cast doubt upon at least 50 findings by ICAC – and the Commission wanted to prevent those rulings from being overturned.

ICAC, eager to get its perceived power back, quickly asked the NSW parliament to enact legislation giving it broad power to prosecute for corruption, not just where a public official is acting in their official function.

The Government’s Response

Responding to that request, the NSW parliament introduced retrospective legislation in the Independent Commission Against Corruption Amendment (Validation) Bill 2015.

The Bill was assented to by both houses on May 6 this year. It didn’t reverse the decision of the High Court – but did validate actions taken by ICAC before the High Court made its ruling.

Section 35 of Schedule 4 of the Act states that:

“Anything done or purporting to have been done by the Commission before 15 April 2015 that would have been validly done if corrupt conduct for the purposes of this Act included relevant conduct is taken to have been, and always to have been, validly done.”

However, the legislation does not go as far as ICAC would have liked, because it does not give ICAC the power it presumed to have.

Even so, the legislation has sparked a second lot of High Court proceedings which are likely to further clarify the scope of ICAC’s powers.

Retrospective legislation

Retrospective legislation is that which dates from before it is enacted. For example, a piece of law passed today which says that it is applicable from 1st January 2000 is considered to be retrospective.

Such laws are rarely enacted, and rightly so. People should not be prosecuted for actions that were perfectly legal when they were committed.

This would clearly be unfair and unjust– and the same can be said where governments legitimise their own illegal actions retrospectively.

The principle against retrospective laws goes back to Roman times, and is even contained in the Magna Carta – an 800 year old English document which purports to guarantee basic human rights.

Despite this, the Australian Constitution does not prohibit governments from enacting retrospective laws – and similarly, there is no prohibition against states and territories passing such laws.

Indeed, a 1915 High Court case, R v Kidman, found that the Commonwealth Parliament has the power to enact retrospective laws, and several cases have confirmed that finding.

Now, 100 years after R v Kidman, the High Court is being called-upon to consider the validity of the ICAC Amendment (Validation) Bill.

In May 2015, the High Court began hearing the case. The applicants bringing are Travers Duncan, a mining magnate who fell foul of ICAC, and three of his business associates.

Duncan’s legal team is arguing that the law is unconstitutional because it attempts to usurp judicial power and interfere with judicial process.

ICAC will certainly be fighting tooth-and-nail to keep its past findings valid, and we will have to wait and see what the High Court decides this time.