By Anthony Lo Surdo SC and Dr Aruna Sathanapally -
Snapshot
- The High Court of Australia in Independent Commission of Corruption v Cunneen & Ors [2015] HCA 14 (15 April 2015) has defined the scope of ICAC’s power to conduct an inquiry under the Independent Commission Against Corruption Act 1988 (NSW) and in doing so has narrowed it from what ICAC had previously considered to be within its powers.
- The majority held that ‘corrupt conduct’ as provided by the Act refers to conduct that adversely affects (or could adversely affect) the probity of the exercise of an official function by a public official, not the efficacy of the exercise of that function.
- The allegations that the respondents had engaged in conduct to pervert the course of justice was held to fall outside the scope of the Act and, therefore, ICAC did not have the power to conduct the inquiry.
The Independent Commission Against Corruption (ICAC) was created almost 30 years ago. Its investigations have resulted in the unearthing of significant instances of corrupt conduct and, in recent times, the resignation of a number of state MPs, including a Premier of NSW.
ICAC was created and is governed by the Independent Commission Against Corruption Act 1988 (NSW) (‘ICAC Act’), which gives it vast coercive powers to investigate ‘corrupt conduct’. In addition to matters referred to it by Parliament, ICAC may conduct an investigation on its own initiative on a complaint or report made to it. For the purposes of an investigation, ICAC has the power to require a person to appear before it, and to produce documents. If a witness is required to appear before ICAC at a compulsory examination (in private) or a public inquiry, the witness: ‘is not excused from answering any question or producing any document or other thing on the ground that the answer or production may incriminate or tend to incriminate the witness, or on any other ground of privilege, or on the ground of a duty of secrecy or other restriction on disclosure, or on any other ground’ (s 37(2)).
The scope of ICAC’s power to conduct investigations is delimited by the definition of corrupt conduct, provided in ss 7-9 of the ICAC Act. Notably, the definition of corrupt conduct does extend, in specified circumstances, beyond the conduct of a public official.
