News: New ICAC challenge goes directly to the High Court

At a hearing on Monday, Gageler J ordered the ‘removal’ to the High Court of a NSW matter challenging the constitutionality of recently enacted NSW legislation retrospectively validating some past actions by that state’s Independent Commission Against Corruption. The Judiciary Act permits the High Court to move any current constitutional or federal dispute in any Australian court directly to the High Court if one or more parties (or an Attorney-General) applies. Last Tuesday, Gageler J agreed to expedite the request to move the application and ordered the parties to provide written submissions. According to Monday’s reasons, those submissions (which are not publicly available) were persuasive:

I am persuaded to take this course having regard, in particular, to the potential for an early resolution of the constitutional issue by this Court to result in a significant saving of time in the hearing and disposition of the proceeding between the present parties that is now pending in the Court of Appeal, as well as to the resolution or substantial resolution of a number of other proceedings now pending in the Supreme Court of New South Wales in which the same issue arises, or is likely to arise.

Indeed, the removal was supported by the party challenging the legislation and was not opposed by ICAC. (By contrast, see here on unsuccessful applications for removal.)

The current ICAC matter has close ties to two separate High Court judgments that were brought down on April 15 this year.First, the NSW legislation under challenge is an express response to ICAC v Cunneen [2015] HCA 14, where a majority of the Court (with Gageler J dissenting) held that ICAC’s statute was limited to a public official’s crimes involving the corruption of a public decision (e.g. a bribe to a public figure), rather than crimes that would impede a public official (such a prosecutor allegedly advising a person involved in a car crash to lie to avoid taking a blood alcohol test.) The NSW government’s response to this decision is split between ICAC’s future operation (where the government has commissioned a review of the ICAC’s statute by a panel chaired by former High Court Chief Justice Murray Gleeson) and its past actions (where the NSW parliament retrospectively validated all ICAC actions made before the High Court judgment that would have been valid if Gageler J’s approach had been followed.) It is the latter validating legislation that is under challenge, presumably as an alleged attack on the integrity of NSW’s Supreme Court under the Kable doctrine.  For excellent analysis  of the background and issues, see discussions by Gabrielle Appleby and the NSW Parliamentary research service.

Second, the constitutional challenger, Travers Duncan, failed in another (somewhat similar) constitutional challenge to NSW legislation in Duncan v New South Wales; NuCoal Resources Limited v New South Wales; Cascade Coal Pty Limited v New South Wales [2015] HCA 13. The legislation in that case cancelled mining licences that ICAC had found were affected by corrupt conduct. The High Court unanimously rejected an argument that the legislation breached constitutional separation of powers principles. Travers Duncan has since continued to challenge the ICAC findings in the NSW courts (including the matter that has now been moved to the High Court) and would doubtless have been heartened by the Court’s decision in the Cunneen matter. Hence, his challenge to legislation that retrospectively removes the effect of the Cunneen decision in relation to ICAC’s decisions in relation to him.

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About Jeremy Gans

Jeremy Gans is a Professor in Melbourne Law School, where he researches and teaches across all aspects of the criminal justice system. He holds higher degrees in both law and criminology. In 2007, he was appointed as the Human Rights Adviser to the Victorian Parliament's Scrutiny of Acts and Regulations Committee.