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Duncan v Independent Commission Against Corruption

Duncan v Independent Commission Against Corruption

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HIGH COURT OF AUSTRALIA
FRENCH CJ,
KIEFEL, BELL, GAGELER, KEANE, NETTLE AND GORDON JJ
TRAVERS WILLIAM DUNCAN APPLICANT
AND
INDEPENDENT COMMISSION AGAINST
CORRUPTION RESPONDENT
Duncan v Independent Commission Against Corruption
[2015] HCA 32
9 September 2015
S101/2015
ORDER
1.So much of proceeding number 2014/239426 as was pending in the Court of Appeal of the Supreme Court of New South Wales as concerns grounds 1A, 1B and 1D and prayers 1, 2 and 4 of the Further Amended Draft Notice of Appeal dated 14 May 2015 be dismissed.
2.The applicant pay the respondent's costs of the proceedings in this Court.

Representation
N C Hutley SC with G E S Ng for the applicant (instructed by Yeldham Price O'Brien Lusk Lawyers)
B W Walker SC with G M Watson SC, S J Free and Z C Heger for the respondent (instructed by Crown Solicitor (NSW))
Interveners
M G Sexton SC, Solicitor-General for the State of New South Wales with A M Mitchelmore for the Attorney-General for the State of New South Wales, intervening (instructed by Crown Solicitor (NSW))
M G Hinton QC, Solicitor-General for the State of South Australia with A D Doecke for the Attorney-General for the State of South Australia, intervening (instructed by Crown Solicitor (SA))
G R Donaldson SC, Solicitor-General for the State of Western Australia with R Young for the Attorney-General for the State of Western Australia, intervening (instructed by State Solicitor (WA))
P J Dunning SC, Solicitor-General of the State of Queensland with F J Nagorcka for the Attorney-General of the State of Queensland, intervening (instructed by Crown Solicitor (Qld))
R M Niall QC, Solicitor-General for the State of Victoria with G A Hill for the Attorney-General for the State of Victoria, intervening (instructed by Victorian Government Solicitor)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

FRENCH CJ, KIEFEL, BELL AND KEANE JJ. In proceedings pending in the Court of Appeal of the Supreme Court of New South Wales, the applicant seeks a declaration that certain findings contained in a report entitled "Investigation into the Conduct of Ian Macdonald, Edward Obeid Senior, Moses Obeid and Others" dated July 2013 ("the Report") were made in excess of the jurisdiction of the respondent, the Independent Commission Against Corruption (ICAC).
In the Report, the respondent found[1] that the applicant had engaged in conduct which adversely affected, or could have adversely affected, the efficacy of the performance of functions by officials of the executive government of the State of New South Wales. The respondent proceeded to conclude that this conduct was "corrupt conduct" within the meaning of s 8(2) of the Independent Commission Against Corruption Act 1988 (NSW) ("the ICAC Act").
[1]The findings against the applicant are summarised by the primary judge in Duncan v Independent Commission Against Corruption (2014) 311 ALR 750 at 752 [7].
The applicant commenced proceedings in the Supreme Court of New South Wales challenging the validity of the findings…

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: [2015] HCA 32
Decision Date: 9 September 2015

CaseChat Overview and Summary

The case of *Duncan v Independent Commission Against Corruption* concerned a challenge to the validity of Part 13 of Schedule 4 to the *Independent Commission Against Corruption Act 1988* (NSW). The applicant argued that this provision, inserted after the High Court's decision in *Independent Commission Against Corruption v Cunneen* [2015] HCA 14, was invalid. The *Cunneen* decision had narrowed the definition of "corrupt conduct" under the Act, potentially invalidating past actions of the Independent Commission Against Corruption (ICAC). Part 13 was enacted to retrospectively validate such acts.

The central legal issues before the High Court were whether Part 13 of Schedule 4 of the ICAC Act was validly enacted. Specifically, the applicant contended that the provisions did not, as a matter of construction, deem the conduct in question to be "corrupt conduct" and therefore did not validate invalid acts. Instead, the applicant argued, Part 13 improperly directed courts to treat as valid acts that remained invalid, thereby undermining the institutional integrity of the Supreme Court of New South Wales contrary to the principle in *Kable v Director of Public Prosecutions (NSW)*, and infringing upon the Supreme Court's power to grant relief for jurisdictional error, as established in *Kirk v Industrial Court (NSW)*.

The High Court dismissed the applicant's challenge, finding his construction of Part 13 to be implausible and unsustainable on a fair reading of its provisions. The Court held that Part 13 operated to amend the definition of "corrupt conduct" for acts occurring before 15 April 2015, effectively changing the substantive law. Clauses 34 and 35 were interpreted as deeming acts done by the ICAC to be valid to the extent they would have been valid if the definition of corrupt conduct had included conduct that adversely affected the efficacy, but not the probity, of official functions. The Court found that this retrospective validation of the ICAC's actions did not contravene the principles in *Kable* or *Kirk*, as it did not usurp the jurisdiction of the Supreme Court but rather clarified the legal position of the ICAC and affected persons.

The High Court ordered that so much of the proceeding pending in the Court of Appeal of the Supreme Court of New South Wales as concerned specific grounds and prayers of the applicant's notice of appeal be dismissed, and that the applicant pay the respondent's costs.

Orders

Orders of the court

1. So much of proceeding number 2014/239426 as was pending in the Court of Appeal of the Supreme Court of New South Wales as concerns grounds 1A, 1B and 1D and prayers 1, 2 and 4 of the Further Amended Draft Notice of Appeal dated 14 May 2015 be dismissed.

2. The applicant pay the respondent's costs of the proceedings in this Court.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

FRENCH CJ, KIEFEL, BELL AND KEANE JJ GAGELER J NETTLE AND GORDON JJ

Given the contention advanced by the applicant, it is desirable to set out the full text of the material terms of Pt 13. It will be readily apparent that Pt 13 is concerned to address only one problem. That problem was that, on the interpretation in Cunneen of "corrupt conduct" in s 8(2) of the ICAC Act, the findings of the respondent, in the Report, were beyond power to the extent that they concerned the applicant. Part 13 purports to deal comprehensively with this problem by addressing the validity of the respondent's activities prior to this Court's decision in Cunneen on 15 April 2015. In considering the terms of Pt 13, it is to be borne in mind that it was the applicant's contention that the brief but comprehensive provisions missed the only target at which they were directed. "Part 13 Validation relating to decision on 15 April 2015 in Independent Commission Against Corruption v Cunneen [2015] HCA 1434 Interpretation(1) In this Part:relevant conduct means conduct that would be corrupt conduct for the purposes of this Act if the reference in section 8(2) to conduct that adversely affects, or could adversely affect, the exercise of official functions included conduct that adversely affects, or could adversely affect, the efficacy (but not the probity) of the exercise of official functions.(2)A reference in this Part to anything done or purporting to have been done by the Commission includes a reference to:(a)anything done or purporting to have been done by an officer of the Commission, and(b)any investigation, examination, inquiry, hearing, finding, referral, recommendation or report conducted or made by the Commission or an officer of the Commission, and… 35 Validation(1)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.(2)The validation under subclause (1) extends to the validation of:(a)things done or purporting to have been done by any person or body, and(b)legal proceedings and matters arising in or as a result of those proceedings,if their validity relies on the validity of a thing done or purporting to have been done by the Commission.(3)The validation under subclause (1) extends to the validation of things on and from the date they were done or purported to have been done.(4)The Commission is authorised (and is taken always to have been authorised) to exercise functions under this Act on or after 15 April 2015 to refer matters for investigation or other action to other persons or bodies, or to communicate or provide evidence given to the Commission to other persons or bodies, even if the matter arose or the evidence was given to the Commission before 15 April 2015 and its validity relies on the validation under subclause (1).(5)Subclause (4) applies even if any finding of corrupt conduct that relates to the matter or evidence is declared a nullity or otherwise set aside by a court...."The applicant's challenge to Pt 13

Ratio Decidendi

Legal Principle Established

Established by: FRENCH CJ, KIEFEL, BELL AND KEANE JJ, GAGELER J, NETTLE AND GORDON JJ

Underpinning the applicant's principal challenge to the validity of Pt 13 was the submission that, properly construed, cll 34 and 35 do not deem the conduct of the applicant referred to in the Report to be "corrupt conduct". The applicant submitted that Pt 13 does not validate invalid acts of the respondent; rather, so it was said, it directs courts to treat as valid acts that were, and remain, invalid. It was argued that this case is distinguishable on this basis from others in which this Court upheld the validity of laws which effect the retrospective validity of invalid acts[5]. It was submitted that, in directing the courts to treat as valid that which Pt 13 has left invalid, Pt 13 contravenes the principle in Kable v Director of Public Prosecutions (NSW)[6] by undermining the institutional integrity of the Supreme Court of New South Wales. It was also said that Pt 13 offends the principle stated by this Court in Kirk v Industrial Court (NSW)[7] that "[l]egislation which would take from a State Supreme Court power to grant relief on account of jurisdictional error is beyond State legislative power". [5]Nelungaloo Pty Ltd v The Commonwealth (1948) 75 CLR 495; Australian Education Union v General Manager of Fair Work Australia (2012) 246 CLR 117; [2012] HCA 19.[6](1996) 189 CLR 51; [1996] HCA 24.[7](2010) 239 CLR 531 at 581 [100]; [2010] HCA 1.The operation of Pt 13 The applicant's construction of Pt 13 is distinctly implausible given the purpose of its enactment. It is not sustainable on a fair reading of cll 34 and 35. As a matter of the ordinary use of language, cll 34 and 35 deem to be valid acts done by the respondent before 15 April 2015 to the extent that they would have been valid if corrupt conduct as defined in s 8(2) of the ICAC Act encompassed conduct which adversely affected the efficacy, but not the probity, of the exercise of official functions. In this way, cll 34 and 35 operate to amend s 8(2) of the ICAC Act in its application to acts done by the respondent prior to 15 April 2015. Parliament thereby changed the meaning of "corrupt conduct", as a matter of substantive law, from the meaning given to that expression in Cunneen in respect of acts occurring before 15 April 2015. It is not to the point that cl 35 does not expressly purport to "amend" s 8(2): it is well settled[8] that a statute which effects an alteration of the provisions of an earlier statute amends that earlier statute even though it may not expressly describe itself as "an amending statute".[8]Kariapper v Wijesinha [1968] AC 717 at 741. The applicant's argument that Pt 13 does not validate the respondent's invalid findings in the Report, and so cannot require a court to attribute the legal consequences of valid findings to the respondent's invalid findings, involved the elusive suggestion that the invalid findings in the Report had no legal consequences. It might be said that the adverse effect of the Report upon the applicant's reputation would have been one relevant legal consequence of the Report, and indeed a consequence which was relevant to his standing to bring the present proceedings[9]. However that may be, the applicant's argument strains too hard against the ordinary meaning of cll 34 and 35. In truth, they declare the legal position of the respondent, and of persons affected by things "done or purporting to have been done" by the respondent, prior to 15 April 2015. [9]Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 577‑578, 583‑585; [1992] HCA 10. See Greiner v Independent Commission Against Corruption (1992) 28 NSWLR 125 at 148.