Duncan v Independent Commission Against Corruption

In the matters of *Duncan v Independent Commission Against Corruption* and related appeals, the applicants sought judicial review of findings made by the Independent Commission Against Corruption (ICAC) concerning corrupt conduct. The central dispute involved allegations that the applicants, including company directors and associated entities, had failed to disclose material facts relevant to the granting of a mining lease, which the ICAC found could have adversely affected the exercise of official functions by a public official. The applicants challenged the ICAC's jurisdiction, the nature of its findings, and the application of various legal principles, including director's duties and criminal provisions related to deception and obtaining financial advantage. The proceedings were heard by Bathurst CJ, Beazley P, and Basten JA.

The court was required to determine several key legal issues. These included whether the ICAC's statutory power to make findings and form opinions extended beyond corrupt conduct to encompass recommendations, and if so, whether such recommendations were amenable to judicial review. The court also considered whether the failure to disclose material facts, even if the information might have become public through alternative means, could constitute conduct that adversely affected the exercise of official functions. Furthermore, the court examined the scope of a director's fiduciary duty, specifically whether an affirmative duty to disclose information existed beyond ceasing to be in a position of conflict, and whether the conduct in question amounted to deception or fraud under the *Crimes Act 1900* (NSW) or dishonestly obtaining a financial advantage under the *Corporations Act 2001* (Cth). The relevance of public interest considerations in the context of ministerial discretion for granting mining leases was also a point of contention.

The court reasoned that the ICAC's power to make recommendations was a statutory function that was not amenable to judicial review, as it was not a determination of rights or liabilities. Regarding the adverse effect on official functions, the court found that the failure to disclose material facts was sufficient, irrespective of whether the information could have been obtained through other channels. The court also held that a director's fiduciary duty did not impose an affirmative obligation to disclose information in the circumstances presented, and that the conduct did not meet the elements of deception or fraud. The court dismissed the appeals, finding that the applicants had failed to establish grounds for judicial review of the ICAC's findings and recommendations. The applicants were ordered to pay the costs of the Commission.