A v Independent Commission Against Corruption

This matter concerned an appeal to the Court of Appeal of New South Wales from a decision of a single judge who had dismissed the appellant's application for judicial review. The appellant sought to challenge a summons issued by the Independent Commission Against Corruption (ICAC) requiring the production of documents, and also sought to set aside a notice to produce documents served by the appellant on the ICAC.

The primary legal issues before the Court of Appeal were whether the primary judge erred in finding that the summons issued by the ICAC was authorised by section 35(1) of the *ICAC Act*, and whether the decision to issue the summons was for a purpose other than an investigation, or was otherwise illogical, irrational, or unreasonable. Further, the court considered whether the ICAC had failed to accord procedural fairness to the appellant. The court also had to determine whether the primary judge erred in setting aside the appellant's notice to produce, specifically concerning the application of section 111(3) of the *ICAC Act* to the ICAC as a separate legal personality and to documents created internally by the ICAC. Finally, the court examined whether the primary judge erred in finding that section 35 of the *ICAC Act* was consistent with the implied freedom of communication on governmental and political matters, and whether section 111(3) was consistent with the Supreme Court's power to grant relief in relation to jurisdictional error.

The Court of Appeal, comprising Bathurst CJ, Basten and Ward JJA, dismissed the appeal. The court reasoned that the primary judge had correctly found that the summons issued by the ICAC was authorised by section 35(1) of the *ICAC Act* and that the decision to issue it was for a legitimate investigative purpose, not being illogical, irrational, or unreasonable, nor a breach of procedural fairness. Regarding the notice to produce, the court upheld the primary judge's finding that section 111(3) of the *ICAC Act* applied to the ICAC as a separate legal personality and to documents created internally by it, thus justifying the setting aside of the appellant's notice. The court also found that the primary judge had correctly concluded that both section 35 and section 111(3) were consistent with the implied freedom of communication and the Supreme Court's supervisory jurisdiction.

Leave to appeal was granted, but the appeal was dismissed with costs. The court also made orders prohibiting the disclosure of the appellant's name and any identifying material until the public release of any ICAC report related to the investigation, or further order, and revoked a previous non-publication order.