Our insights - Henry Davis York

Review of the ICAC following the Cuneen decision

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8 September 2015

In our earlier Insight we reviewed the High Court's decision in ICAC v Cunneen [2015] HCA 13. In that decision, the High Court effectively constrained the ICAC's jurisdiction by interpreting section 8(2) of the Independent Commission Against Corruption Act 1988 (NSW) (ICAC Act) to refer to corrupt conduct which adversely effects the probity of the exercise of official functions.

In response to the Cunneen decision the NSW Government commissioned an Independent Panel consisting of the Hon. Murray Gleeson AC and Mr Bruce McClintock SC to consider and report on:

  • The scope of the ICAC's jurisdiction.
  • Any legislative measures required to provide the ICAC with the appropriate powers to prevent, investigate and expose serious corrupt conduct and/or systemic corrupt conduct.
  • Whether any limits or enhancements should be applied to the ICAC's powers.

On 6 May 2015, the NSW Government introduced the Independent Commission Against Corruption Amendment (Validation) Bill 2015 which was passed by Parliament and received assent on the same day. It effectively validated any former ICAC decision which would have been invalid as a result of the Cunneen decision. This legislation is the subject of a challenge in the High Court in Duncan v Independent Commission Against Corruption. The High Court reserved its decision in those proceedings on 5 August 2015.

The Independent Panel released its report on 30 July 2015 which contained a number of recommendations for the ICAC. Today, 8 September 2015, the NSW Government has responded to the Independent Panel's recommendations by introducing  the Independent Commission Against Corruption Amendment Bill 2015 in Parliament (Bill) which proposes to amend the Independent Commission Against Corruption Act 1988 (NSW) (ICAC Act). Debate concerning the Bill has been adjourned for 5 days. If the Bill is ultimately enacted:

  • The definition of corrupt conduct in section 8 of the ICAC Act will be amended so that ICAC can examine, and make findings and recommendations concerning, the conduct of any person (including private sector involvement) that impairs or could impair public confidence in public administration and which could involve:
    • collusive tendering;
    • fraud in or in relation to certain applications for licences, permits or clearances under statutes designed to protect health and safety or designed to facilitate the management and commercial exploitation of resources;
    • dishonestly obtaining or assisting or benefiting from the payment or application of public funds or the disposition of public assets for private advantage;
    • defrauding the revenue;
    • fraudulently obtaining or retaining employment as a public official.
  • The conduct which can be examined will include conduct occurring before the commencement of the proposed amending Act.
  • Section 13 of the ICAC Act (Principal Functions) will be amended to widen the ICAC's advisory, educational and prevention functions. The amendments include a reference to promoting the integrity and good repute of public administration.
  • A new section 13A will be inserted into the ICAC Act to enable the ICAC to investigate allegations about breaches of certain electoral, electoral funding, expenditures, electoral expenditures or disclosures, or lobbying laws.
  • A new section 74BA will be inserted into the ICAC Act to provide that the ICAC will not be authorised to include in a report to parliament a finding or opinion that any conduct of a specified person is corrupt conduct unless the conduct is serious corrupt conduct.

The Bill closely mirrors the Independent Panel's recommendations.

What hasn't changed?

The ICAC will have broader jurisdiction than it has had following the High Court's decision in Cunneen but it will be constrained to making findings of corrupt conduct involving serious corrupt conduct. Stay tuned to see how the ICAC will interpret 'serious'.

It remains the case that:

  • The ICAC remains an inquisitorial, executive body, not an adversarial, judicial one.
  • The ICAC's focus will remain on corruption in the public sector.
  • The Bill will not change the ICAC's public inquiry functions, which is consistent with the Independent Panel's rejection of a submission that public inquiries should no longer be part of the ICAC's functions.
  • The Bill will not introduce an oversight body that can review a decision by the ICAC to hold a public inquiry, which is consistent with the Independent Panel's rejection of such a body.
  • The Bill will not introduce ordinary rules of evidence for public inquiries. Again this is consistent with the Independent Panel's views.
  • The Bill will not introduce merits review of findings of corrupt conduct. Judicial review remains available to persons denied procedural fairness.
  • The Bill has not proposed any change to section 74A(2)(a) which allows the ICAC to make a recommendation that consideration be given to obtaining the advice of the DPP about the criminal prosecution of persons found to have engaged in corrupt conduct.
Author

Scarlet Reid

Partner

61 2 9947 6820

scarlet.reid@hdy.com.au

Author

Michael Sullivan

Partner

61 2 9947 6185

michael.sullivan@hdy.com.au

Author

Sally Moten

Senior Associate

61 2 9947 6777

sally.moten@hdy.com.au

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