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Balog v Independent Commission against Corruption

Balog v Independent Commission against Corruption

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Case Copied 28 June 1990 19 min read

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HIGH COURT OF AUSTRALIA

Mason C.J., Deane, Dawson, Toohey and Gaudron JJ.

BALOG v. INDEPENDENT COMMISSION AGAINST CORRUPTION

(1990) 169 CLR 625

28 June 1990

Statutory Bodies

Statutory Bodies—Investigating Commission—Independent Commission Against Corruption—Investigation—Report—Powers—Inclusion of statement that person was or may have been guilty of criminal offence or corrupt conduct—Independent Commission Against Corruption Act 1988 (N.S.W.), ss. 13, 74.

Decision

MASON C.J., DEANE, DAWSON, TOOHEY AND GAUDRON JJ. The Independent Commission Against Corruption has been conducting an investigation into the manner in which the Waverley Municipal Council dealt with applications for the development of land within its municipality during a period commencing in July 1982. The appellant Balog is the managing director of a company called Dainford Limited, which is involved in land development, and the appellant Stait was for some six years during the period under investigation the engineer and town planner for the municipality. Each of them is, within the meaning of s.74(6) of the Independent Commission Against Corruption Act 1988 (N.S.W.) ("the Act"), a person substantially and directly interested in the subject-matter of a hearing which the Commission has been holding as part of its investigation.

2. The appellants were unsuccessful at first instance in seeking to limit by way of declaration and injunction the findings which the Commission might make against them. By the time the matter reached the Court of Appeal, the appellants sought only a declaration in the following terms:

"(That) on the true construction of the Independent Commission Against Corruption Act 1988 ('the Act'), and in the events which have happened, the defendant is not entitled in any report prepared pursuant to section 74 or 76 of the Act to make any finding or state any conclusion that the plaintiff, he being a person substantially and directly interested in an investigation, was guilty of a criminal offence or of any conduct which may constitute a criminal offence other than making a statement within section 74(5) of the Act".

Although in the Court of Appeal the respondent contested the appellants' entitlement to a declaration, it did not contest that, where appropriate to do so, a court may grant declaratory relief in a case such as this. The respondent did not alter its position upon appeal by the appellants to this Court, but the appellant Balog sought and obtained leave to amend his grounds of appeal by adding a ground that the Court of Appeal ought to have held that the respondent Commission has no power to make any statement that corrupt conduct by the appellant may have occurred. The appellant Stait was, at all events tacitly, granted similar leave to amend his grounds of appeal.

3. The Commission is incorporated and exercises its functions through a Commissioner and Assistant Commissioners appointed under the Act. Its principal functions broadly involve the investigation of corrupt conduct, the education of the community, public authorities and public officials concerning corrupt conduct and the means whereby it might be eliminated, and the enlisting and fostering of public support in…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1990] HCA 28
Decision Date: 28 June 1990

CaseChat Overview and Summary

The High Court of Australia considered an appeal by Mr Balog against a decision of the Independent Commission against Corruption (ICAC). The dispute concerned the ICAC's power to compel the attendance of Mr Balog and to require him to give evidence before it. Mr Balog had sought to challenge the validity of the summons issued to him.

The central legal issue before the High Court was whether the ICAC had the power to issue a summons to a person to attend and give evidence if that person was not a suspect in an investigation, but rather a person who might be able to give evidence about the conduct of others. The Court also considered the scope of the ICAC's investigative powers under the relevant legislation.

The High Court held that the ICAC's powers under the *Independent Commission Against Corruption Act 1988* (NSW) were broad and included the power to summon any person who might be able to give evidence relevant to an investigation, regardless of whether that person was a suspect. The Court reasoned that the purpose of the Act was to facilitate thorough investigations into corruption, and this required the ICAC to have the ability to gather information from all relevant sources. The Court found that the summons issued to Mr Balog was valid.

The appeal was dismissed.

Orders