Independent Commission Against Corruption v Cunneen

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.