Independent Commission against Corruption v Cunneen

A majority of the High Court has dismissed appeal from the decision of the NSWCA relating to the powers of the Independent Commission against Corruption (ICAC) under the Independent Commission against Corruption Act 1988 (NSW). Following a motor vehicle accident, the first and second respondents allegedly advised the third respondent to pretend to have chest pains so as to prevent police officers from obtaining evidence of the third respondent’s blood alcohol level at the scene of the accident. ICAC commenced a public inquiry under s 31 of the ICAC Act. The respondents challenged that inquiry on the basis that it was beyond ICAC’s powers, namely to investigate allegations of corrupt conduct, defined under s 8 as including conduct that ‘adversely affects, or that could adversely affect’ the honest and impartial exercise of official functions by any public official. A majority of the NSWCA interpreted s 8(2) as relating only to conduct that ‘has the capacity to compromise the integrity of public administration’ in the sense of leading to the corruption of an official, and held that the alleged conduct was beyond ICAC’s investigatory powers. Bathurst CJ (in dissent) held that it extended to conduct within the ordinary meaning of the word, and held that the inquiry was within power.

The majority (French CJ, Hayne, Kiefel and Nettle JJ) held that of the two possible meanings of ‘adversely affect’ — either relating to the ‘probity of the exercise of an official function by a public official’ or to the ‘efficacy of the exercise of an official function by a public official’ — the probity definition is to be preferred: it accords with the ordinary understanding of corruption in public administration and the purposes of the ICAC Act, whereas the efficacy meaning would expand the meaning to a range of offences that are unrelated to either corruption or the purposes of the ICAC Act, and would expand ICAC’s powers well beyond its purpose as an anti-corruption body ([2]–[3]). The majority was critical of both approaches taken by the NSWCA. It rejected the plain and ordinary meaning approach taken by Bathurst CJ on the basis that it assumed the broadest possible meaning and did not account for the statutory context (see [32]ff), and also stated that the NSWCA majority’s approach was open to circularity because it assumed the purpose of the act and then preferred a meaning of ‘adversely affect’ that was more consistent with those assumed purposes (see [33]–[34]). Instead, the majority outlined that the preferred approach was to examine relative consistency (at [35]):

It is impossible to identify the purpose of the ICAC Act (and, therefore, impossible to establish a major premise against which to compare the relative consistencies of the competing constructions of ss 8 and 9) without reference to the scope of operation of the Act as defined by ss 8 and 9. For the same reason, it is not open to express a conclusion as to the meaning of “adversely affect” in s 8(2) in terms of absolute validity. The best that can be done is to reason in terms of relative consistency – internal logical consistency and overall consistency in accordance with the principles of statutory interpretation adumbrated in Project Blue Sky [1998] HCA 28 – to determine which of the two competing constructions of “adversely affect” is more harmonious overall.

After reviewing the text, structure and context of the ICAC Act (see [36]ff), the majority emphasised that the symmetry of the structure of s 8 meant that ‘adversely affect’ in s 8(2) means ‘to adversely affect the exercise of an official function by a public official in such a way that the exercise constitutes or involves conduct of the kind identified in s 8(1)(b)–(d)’, that is, dishonest or partial exercise of a public power, breach of public trust or the misuse of information or materials in the course of official functions ([44]–[45]), which go to defining improbity in public administration at which the ICAC Act is aimed ([46] and see following). The majority stated that the probity reading was reinforced by the many possible offences under the efficacy meaning that would range far beyond corruption (see examples at [52]), and held that

It is not likely that an Act which is avowedly directed to investigating, exposing and preventing corruption affecting public authorities – and for which the justification for the conferral of extraordinary powers on ICAC was said to be the difficulty of discovering and exposing corruption in the nature of a consensual crime of which there is no obvious victim willing to complain – should have the purpose or effect of extending the reach of ICAC to a broad array of crimes having nothing to do with corruption in public administration apart from such direct or indirect effect as they might conceivably have upon the efficaciousness of the honest and impartial exercise of official functions by public officials.

The majority also dismissed a final possible construction under which the clause ‘and which could involve’ limited and defined the phrase ‘the exercise of official functions’ rather than ‘conduct’ (see [65]–[70]). Gageler J, dissenting, preferred the efficacy construction on the basis that the provision only requires that the conduct have the potential to limit or prevent the proper exercise of official functions by the public official (see [81]ff).

High Court Judgment [2015] HCA 14 15 April 2015
Result Appeal dismissed
High Court Documents Cunneen
Full Court Hearing [2015] HCATrans 47  4 March 2015
Special Leave Hearing [2014] HCATrans 296 12 December 2014
Appeal from NSWCA [2014] NSWCA 421 5 December 2014
Trial Judgment NSWSC
[2014] NSWSC 1571 10 November 2014

11 thoughts on “Independent Commission against Corruption v Cunneen

  1. I would have thought that Cunneen’s conduct (if indeed she said what is alleged) is an attempt to pervert the course of justice [R v Rogerson [1992] HCA 25].

    Moreover, as a barrister, is not her paramount duty (at all times) to the court and to the administration of justice.

    • That may all be true – but the issue in this case is whether ICAC had the power to investigate the allegations, not whether the allegations were true, amounted to an offence, or would be a breach any ethical standards of practitioners — so this is rather Cunneen et al’s attempt to have a court rule that ICAC can’t investigate these allegations because they are outside the scope of its powers. Now that it’s clear ICAC can’t do that, there may be other ramifications; I’m not sure whether there has already been or will be any investigations by the NSW police or the Bar.

      • I believe it has been reported that NSW Police investigated the matter after the initial complaint and decided to take no action. I cannot find a reference right now.

  2. Cuneen was simply giving a relative legal advice. Is than not privileged? When I last checked, the Qld CMC laws give them the power to bug lawyer-client conversations provided the conversation is out of chambers.

    ICAC may well have been breaking the law on a lot of things. Their act does say widespread and serious corruption is their main focus. If they cannot investigate Cuneen, they certainly cannot investigate people such as Duncan Travers nor John Maitland.

    • It is difficult to see how counselling a person to have chest pains (if that is what she did) can amount to giving legal advice.

      Even if it could amount to legal advice, it would be legal advice arguably given for the purpose of giving effect to an illegal purpose or scheme and would not, as I understand it, be then subject to the privilege.

  3. Cunneen is a member of the NSW Bar, and she was advising someone potentially in trouble with the law. That *IS* legal advice, albeit pro bono, and on a phone. The question of privilege may depend on it being in or out of chambers. If it is privileged, no one can use the info.

    ICAC has been going crazy with bugging, or getting taps from the AFP. Anyone and everyone has been done. After the Cuneen decision, many people could potentially sue them.

    • The allegation is that Cuneen was advising her “client” to lie and deceive the police, a criminal offence. Such “advice” would not be privileged.

      Regardless, it does not seem to be “corrupt” conduct without stretching the definition to breaking point and the majority decision seems unassailable to me. It is a police matter not an ICAC matter.

      There’s been a lot of speculation about how the allegation against Cuneen came to ICAC’s attention in the first place and why ICAC chose to try and deal with it, and the obvious answer is certainly that it involves evidence the police can’t touch but ICAC can. Still, it was a mistaken overreach which is probably going to result in a bunch of people with more marginal cases than Ms Cuneen (where the High Court could have justified stretching the definition of corruption a little bit) suing ICAC both successfully and unsuccessfully and chewing up their time and resources.

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  6. OK so I found out that ICAC said it was a “Federal law enforcement agency”. See para. 7

    Which Agency? Who referred the matter to them? There are lots of unanswered questions about how and why this matter was investigated by a ‘Federal Law Agency’ (AFP/ACC??) and why they referred the matter to ICAC that need to be considered to satisfy there was not any political interference.

    Any thoughts on this?

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