INDEPENDENT COMMISSION AGAINST CORRUPTION APPLICANT
AND
MARGARET CUNNEEN & ORS RESPONDENTS
Independent Commission Against Corruption v Cunneen
[2015] HCA 14
15 April 2015
S302/2014
ORDER
1.Special leave to appeal granted.
2.Appeal treated as instituted and heard instanter and dismissed with costs.
On appeal from the Supreme Court of New South Wales
Representation
J K Kirk SC with S Robertson for the applicant (instructed by Crown Solicitor (NSW))
D F Jackson QC with A R Moses SC and R L Gall for the respondents (instructed by Cockburn and Co)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Independent Commission Against Corruption v Cunneen
Statutory bodies – Investigating commission – Independent Commission Against Corruption – Powers – Independent Commission Against Corruption Act 1988 (NSW), s 8(2) defines "corrupt conduct" as conduct that could "adversely affect" exercise of official function by public official – Whether conduct that could adversely affect efficacy, but not probity, of exercise of official function by public official "corrupt conduct".
Statutes – Interpretation – Context and purpose – Statutory definitions – Effect of express statement of objects of Act – Where purpose of Act cannot be identified without reference to terms to be interpreted.
Statutes – Interpretation – Extrinsic materials – Legislative history – Where legislation not amended after review of Act.
Words and phrases – "adversely affect", "and which could involve", "corrupt conduct".
FRENCH CJ, HAYNE, KIEFEL AND NETTLE JJ. This is an application for special leave to appeal from a decision of the New South Wales Court of Appeal. The principal question for determination is what is meant by the expression "adversely affects, or that could adversely affect ... the exercise of official functions by any public official" in the definition of "corrupt conduct" in s 8(2) of the Independent Commission Against Corruption Act 1988 (NSW) ("the ICAC Act").
"Adversely affect" is a protean expression. In this context, however, there are only two possibilities. Either it means adversely affect or could adversely affect the probity of the exercise of an official function by a public official, or it means adversely affect or could adversely affect the efficacy of the exercise of an official function by a public official in the sense that the official could exercise the function in a different manner or make a different decision from that which would otherwise be the case.
The former meaning accords with the ordinary understanding of corruption in public administration and consequently with the principal objects of the ICAC Act as set out in s 2A. The latter would result in the inclusion in "corrupt conduct" of a broad array of criminal offences and other unlawful conduct having nothing to do with the ordinary understanding of corruption in public administration or the principal objects of the ICAC…
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
AGLC
Independent Commission Against Corruption v Cunneen [2015] HCA 14
Case
[2015] HCA 14
Decision Date
CaseChat Overview and Summary
The Independent Commission Against Corruption (ICAC) sought special leave to appeal to the High Court of Australia against orders made by the Court of Appeal. The dispute concerned whether ICAC had the power to investigate an allegation of criminal conduct that could impede or impair the exercise of an official function by a public official, without necessarily involving wrongdoing by that official.
The central legal issue before the High Court was the interpretation of section 8(2) of the *Independent Commission Against Corruption Act 1988* (NSW), which defines "corrupt conduct" as conduct that could "adversely affect" the exercise of official functions by a public official. Specifically, the Court had to determine whether conduct that could adversely affect the *efficacy* of an official function, but not its *probity*, constituted "corrupt conduct" under the Act.
The majority of the High Court, comprising French CJ, Hayne, Kiefel, and Nettle JJ, allowed the appeal and dismissed it with costs. They reasoned that the definition of "corrupt conduct" in section 8(2) required that the conduct adversely affect the *probity* of the exercise of an official function. They noted that many offences listed in section 8(2) logically could affect probity but were unlikely to be committed by a public official in the exercise of their official functions. Gageler J, dissenting, considered that criminal conduct having the potential to impair the *efficacy* of an official function was sufficient for it to be investigated by ICAC, without the necessity of affecting probity. The majority's reasoning aligned with the dissenting reasons of Bathurst CJ in the Court of Appeal.
Orders
Orders of the court
1. Special leave to appeal granted.
2. Appeal treated as instituted and heard instanter and dismissed with costs.
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, HAYNE, KIEFEL AND NETTLE JJ
GAGELER J
(dissent)
Finally, many of the offences listed in s 8(2)(a)-(y), such as bribery, blackmail, offering secret commissions, treating, tax and revenue evasion, currency violations, drug dealing and illegal gambling, are of a nature which logically could adversely affect the probity of the exercise of an official function by a public official but at the same time are unlikely to be capable of commission by a public official in the exercise of an official function.Conclusion It was not disputed that, if "adversely affect ... the exercise of official functions by any public official" in s 8(2) means adversely affect the probity of the exercise of an official function by a public official in one of the ways listed in s 8(1)(b)-(d), the alleged conduct was not corrupt conduct within the meaning of s 8(2). ICAC sought special leave to appeal against the orders of the Court of Appeal. The application for special leave was referred for argument before an enlarged bench as on an appeal. The respondents submitted that special leave should be refused. But in light of the way in which the disputed question of construction of the ICAC Act should be resolved, it is better that special leave be granted, the appeal treated as instituted and heard instanter and dismissed with costs. The question of public importance, on which special leave to appeal is sought, is whether ICAC has power to investigate an allegation of criminal conduct having the potential to impede or impair the exercise of an official function by a public official in a manner involving no wrongdoing on the part of that public official. The question is about whether ICAC has power to undertake any investigation into any allegation of criminal conduct of that nature. The question is not about the propriety or prudence of ICAC choosing to undertake the particular investigation in this case. I would grant special leave to appeal, determine the question in the affirmative, and allow the appeal. To explain at the outset how I differ from the majority in this Court, I consider it sufficient, to be investigated by ICAC, that criminal conduct has the potential to impair the efficacy of an exercise of an official function by a public official. I do not consider it necessary that the criminal conduct has the potential to affect the probity of an exercise of an official function by a public official. My reasons accord substantially with those of Bathurst CJ in dissent in the Court of Appeal. In stating my reasons, I adopt the abbreviations of the majority in this Court. The word "corruption" appears in the ICAC Act in its title and in its objects clause. The word connotes moral impropriety in, or in relation to, public administration. It has never acquired a more precise meaning in the language of the law or in ordinary speech[58]. Standard dictionary definitions of "corrupt", used as an adjective, provide a range of meanings, from "dishonest" or "without integrity" to "infected" or "tainted"[59].[58]Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 at 138. [59]Eg Macquarie Dictionary, 6th ed (2013) at 339, senses 1 and 4.
Ratio Decidendi
Legal Principle Established
Established by:
FRENCH CJ, HAYNE, KIEFEL AND NETTLE JJ,