Will ICAC retrieve its mojo? ... The High Court will decide on the powers of the most effective corruption fighter in the country ... ICAC's pen has been "put down" ... The issue to be resolved is what conduct "adversely affects" the exercise of official functions ... Words and meanings ... Nina Ubaldi on the case
Corruption busters fighting back
So now we know. At today's (Dec. 12) direction's hearing in the High Court Chief Justice French set March 4-5, 2015 as the dates ICAC's appeal against the Court of Appeal decision in the Cunneen case will be heard.
ICAC filed a summons seeking expedition, with its barrister Jeremy Kirk telling French that the CA ruling has "knock-on effects for a wide range of people and a wide range of inquiries".
ICAC has delayed releasing the reports into operations Credo and Spicer (Australian Water Holdings and Liberal Party donations) because the CA has cast doubt on its powers.
Arthur Moses for the Cunneenites told French that ICAC has "put its pen down" for reasons "not immediately apparent".
He added that ICAC's statements today were "sweeping [and] overkill".
Last week, the NSW Court of Appeal held by majority that the ICAC did not have the power to investigate an alleged attempt to pervert the course of justice by NSW prosecutor Margaret Cunneen, her son Steven Wyllie and his partner Sophia Tilley.
It is alleged that Cunneen and Wylie encouraged Tilley to fake chest pains at the scene of an accident in order to avoid police obtaining evidence about her blood alcohol level.
In the first round CJ@CL Cliff Hoeben upheld ICAC's power to investigate the alleged offences.
On appeal, Moses successfully argued that the alleged behaviour did not fall within the definition of "corrupt conduct" under s.8(2) of the ICAC Act.
Section 8(2) defines corrupt conduct by any person, including those who are not public officials, through two "limbs".
The first limb requires that the conduct could adversely affect, either directly or indirectly, the exercise of official functions by a public official. The second limb requires that the conduct could constitute one of a number of prescribed offences.
In the Cunneen case the relevant offences were s.8(2)(g), perverting the course of justice, and 8(2)(y), any conspiracy or attempt in relation to the listed offences.
The CA accepted that frustrating the commencement of court proceedings could, in some circumstances, amount to the perversion of the course of justice (although strictly speaking Justice Julie Ward thought it unnecessary to decide the matter).
The appeal bench also agreed that a single course of conduct could satisfy the two limbs, contrary to the suggestion of Moses at the trial.
The crux of the case was the construction of "adversely affecting directly or indirectly the exercise of official functions".
It is this construction that primarily the High Court will have to sort out.
Justice John Basten, who formed the majority with Ward, said that the term "adversely affecting" should be interpreted consistently with "the ordinary understanding of corruption affecting public authorities and public officials".
The conduct must therefore have "the capacity to compromise the integrity of public administration" by potentially leading a public official into dishonest, partial or otherwise corrupt conduct. This interpretation, he argued, was supported by the object of the ICAC Act to investigate "corruption involving or affecting public authorities and public officials."
Basten drew an analogy with tax evasion - also listed in s.8(2) - that involved understating income or a property's sale price. Although the Tax Office would be misled into allowing a person to pay less tax, the tax official would nevertheless be acting "honestly, impartially and in accordance with his or her statutory obligations".
In contrast, a private citizen offering a bribe to avoid investigation into his or her actual income would "compromise public administration".
Applying these principles to the allegations against Cunneen and her son, even if the appellants had successfully dissuaded the police officer from taking blood alcohol samples, "it could not be said that the police officer acted otherwise than honestly and impartially in taking steps in accordance with his or her understanding of the circumstances".
This is because, in this instance, the officer may have thought the chest pains were a legitimate reason not to test Sophia Tilley's blood alcohol level.
Further, the police officer was not alleged to have breached public trust or misused official information.
Ward J similarly directed her attention towards the phrase "adversely affected". The relevant conduct, she stated, must have "the potential to affect the exercise of the relevant public official's functions in a manner adverse to the public administration of justice in the sense of diverting the proper exercise of those functions".
It was therefore not sufficient that the conduct "might cause a different decision to made"; it must cause "corruption" in the exercise of an official's functions or have an "adverse outcome when viewed from a public corruption perspective."
The majority of the appeal bench said that it would only adversely affect an official function if it actually induced a public official to act improperly. Even though the alleged conduct could constitute an attempt to pervert the course of justice, as it was intended to dissuade a police office from investigating an offence - nevertheless, here the alleged conduct could not be said to cause the police to act otherwise than honestly and impartially.
Arthur Moses says ICAC has put down its pen
In it's application for special leave to appeal, the ICAC argues that the majority's reference to the "ordinary understanding of public corruption" has caused the court to read in requirements that are not supported by the text of the statute.
This appears to draw on the dissent of Chief Justice Bathurst who, in considering his colleagues' opinions, commented: "I would prefer to focus on the words of the section."
In the Chief Justice's opinion, "if the conduct in question limits or prevents the proper performance of the public official's function, then the first limb will be satisfied".
In this case, diverting a police officer from the investigation of suspected drink driving offences would satisfy this requirement.
In relation to the second limb, Bathurst noted that not all conduct designed to mislead a police officer would amount to an attempt to pervert the course of justice.
The offence will be committed however where the conduct has, "the tendency to deflect the police from invoking the jurisdiction of the court, when it is their duty to do so".
The CJ noted the overlap between the two limbs in this particular case.
"Conduct which could impair the court's capacity to do justice in the particular case is conduct which in my opinion could adversely affect at least indirectly the exercise by a court of its official functions."
In reaching this conclusion he acknowledged that any attempt to pervert the course of justice would fall within s.8(2).
This he argued, "is not surprising where the essence of the offence is to impair the court's capacity to administer justice, something at the core of our legal and political system".
The outcome in the High Court is likely to have significant implications for the scope of ICAC's power to nail corrupt individuals.
See: judgment summary Cunneen v ICAC
Here are ICAC's grounds for special leave (excuse the quality of reproduction) ...
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ICAC compulsory examination
On the same day that the NSWCA brought down it's reasons in Cunneen's appeal, it also produced it's findings in the less well reported matter of A v ICAC.
This matter has not been made public and the subject of ICAC's investigation has also been suppressed.
ICAC had issued a summons to "A" requiring it to produce electronic records in the name of a particular employee, whose name is also suppressed.
In August, Hormones Harrison J dismissed "A's" claim that ICAC was acting beyond its powers. The CA agrees.
"A" also sought access to commission documents which would identify the nature of the investigation. Bathurst, Basten and Ward said that the secrecy provisions of the ICAC Act, s.111, protected the commission from compulsory disclosure of its documents.
Also, rejected was an argument that the secrecy provisions were constitutionally invalid because they limited the powers of the court to grant relief in appropriate circumstances.
At the commencement of the compulsory examination to be conducted by ICAC in private, the applicant would then be entitled to be told the nature of the allegation or complaint.
See: judgment A v ICAC
See: judgment summary A v ICAC
In further recent news, it has been separately reported in the press that Graham Richardson is a "person of interest" to ICAC.
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It should not be forgotten that there are three other ICAC related matters in the High Court, set down for hearings on February 10, 2015:
This corruption busting business is lawyer intensive.