The High Court has unanimously dismissed a cause removed from the New South Wales Court of Appeal challenging the newly inserted pt 13 in sch 4 of the Independent Commission against Corruption Act 1988 (NSW), which purports to validate ICAC’s decisions regarding corrupt conduct following the High Court’s decision earlier this year in ICAC v Cunneen  HCA 14. Following a public inquiry by ICAC into whether several companies, among them Cascade Coal Pty Ltd, ICAC provided a report to the NSW Parliament that concluded that the applicant (a former director of and current shareholder in Cascade), among others, had engaged in corrupt conduct in relation to a mining lease. The applicant sought a declaration from the NSW Supreme Court that this finding was made without or in excess of jurisdiction and was a nullity. The NSWSC dismissed that application in July 2014. During the course of the appeal against the NSWSC decision, the High Court handed down its decision in Cunneen, in which a majority of the Court held that conduct that ‘adversely affects’ the honest and impartial exercise of official functions by any public official required, to fall under corrupt conduct, an affect on the probity of the function, rather than the efficacy of the function. The applicant contended that this ruling was fatal to ICAC’s arguments in his matter before the NSWCA. Shortly after Cunneen was handed down, the NSW Parliament amended the ICAC Act to limit its impact by inserting a new pt 13 to sch 4, which explicitly expanded the definition of conduct prior to 15 April 2015 by deeming it to include ‘conduct that adversely affects, or could adversely affect, the efficacy (but not probity) of the exercise of official functions’. The applicant contended before the High Court that, following Cunneen, ICAC’s original finding against him was invalid, and that pt 13 of sch 4 (specifically cll 34 and 35) is itself invalid. (It was common ground between the parties in the High Court that the original finding was indeed affected by jurisdictional error: see at .) The arguments supporting this claim were that pt 13 did not validate otherwise invalid acts of ICAC, but rather directed courts to treat those invalid acts as if they were valid, and in doing so, contravened the principles in Kable v DPP (NSW)  HCA 24 and Kirk v Industrial Relations Commission of New South Wales  HCA 1 (see at ).
The Court unanimously rejected the challenge to the validity of pt 13. The joint judgment (French CJ, Kiefel, Bell and Keane JJ) held that the applicant’s construction of pt 13 was an implausible reading of pt 13: the ordinary meaning of the clauses in pt 13 operated to deem as valid acts done before 15 April 2015 if those acts adversely affected the efficacy but not the probity of official functions, and in this sense, simply operated to amend s 8(2) (see at –). Rather, Part 13 operates to declare the legal position of ICAC’s investigative powers, and as a result of that the report into the applicant’s conduct became ‘cognisable as a matter of law’ as a report into corrupt conduct in accordance with the ICAC Act (see at –). In widening the meaning of ‘corrupt conduct’, pt 13 widened ICAC’s investigative jurisdiction and validated its actions (at ). The joint judgment also rejected the Kable argument (that a State law cannot confer upon a State court a power or function which substantially impairs the court’s institutional integrity to make it incompatible with the Court’s role as a repository of federal jurisdiction) holding that pt 13, by attaching new legal consequences to acts done, conferred a grant of jurisdiction, rather than any direction as to the manner or outcome of the exercise of that jurisdiction (see at –). It also did not purport to confer any power or function upon a court, and does not direct a court to treat as valid something that the legislature has left invalid (see ). The joint judges also rejected the Kirk argument (that a legislature may not intrude upon a State Court’s supervisory jurisdiction over administrative agencies and lower courts) because pt 13 did not withdraw any jurisdiction from the NSW Supreme Court, and instead simply alters the substantive law to be applied by that court (see ). The joint judges also rejected an alternative claim that pt 13 was incompatible with ch III of the Constitution and could not apply to the NSWCA proceedings because those proceedings engaged that court’s federal jurisdiction, on the basis that even if pt 13 were a law of the Commonwealth it would not be inconsistent with ch III (see –).
Gageler J agreed with the orders of the joint judgment, rejecting the applicant’s argument that cl 35 attaches new legal consequences to an act of ICAC while accepting that the act remains invalid, and holding that cl 35 ‘does no more’ than provide that ICAC’s authority extends to include the authority to have done the historical acts which, but for the amendments, would have been in excess of power: –. Nettle and Gordon JJ agreed with the reasons of the joint judgment, but would have preferred to not characterise pt 13 as effecting a change in the law, but rather as creating a ‘new or different legal regime’ within which the concept of corrupt conduct is ‘taken to be expanded’ to cover conduct that went to the efficacy but not probity of official functions (at ).
|High Court Judgment|| HCA 32||9 September 2015|
|High Court Documents||Duncan v ICAC|
|Full Court Hearing|| HCATrans 170||5 August 2015|
|Application for Removal|| HCATrans 131||25 May 2015|
|Summons for Expedition|| HCATrans 124||19 May 2015|
|Judgment, NSWSC|| NSWSC 1018||29 July 2014|