Duncan v Independent Commission against Corruption

The applicant, Mr. Duncan, sought judicial review of a decision by the Independent Commission Against Corruption (ICAC) to issue a notice under section 15 of the Independent Commission Against Corruption Act 1988 (NSW) requiring him to attend an examination. The ICAC had commenced an investigation into allegations of corrupt conduct concerning the awarding of a government contract. Mr. Duncan was a director of a company that had been awarded the contract.

The central legal issue before Gageler J was whether the ICAC had acted unlawfully in issuing the section 15 notice. Specifically, the court was asked to determine if the ICAC had failed to properly consider whether the examination of Mr. Duncan was reasonably necessary for the purposes of its investigation, as required by section 15(2) of the Act. This involved an assessment of whether the ICAC had taken into account irrelevant considerations or failed to take into account relevant considerations when deciding to issue the notice.

Gageler J reasoned that the ICAC's decision to issue the notice was predicated on a misunderstanding of the scope of its investigative powers. The ICAC had focused on the potential for Mr. Duncan to provide information about the conduct of others, rather than on whether his own examination was reasonably necessary to ascertain the facts relating to the alleged corrupt conduct. His Honour held that the ICAC had failed to demonstrate that it had properly considered the necessity of Mr. Duncan's examination in light of the information already available to it. The court found that the ICAC had impermissibly broadened the scope of its inquiry by issuing the notice without sufficient justification.

The application for judicial review was granted, and the section 15 notice issued by the ICAC to Mr. Duncan was quashed.