Today’s High Court consideration of the definition of corrupt conduct has implications for public officials in New South Wales and ultimately across the country.

The court is hearing an appeal from the Independent Commission Against Corruption against an earlier finding of the NSW Court of Appeal, stopping it from inquiring into allegations surrounding the conduct of the state’s deputy senior Crown prosecutor Margaret Cunneen SC.

It’s alleged Cunneen and her son counselled her son’s friend, Sophia Tilley, to fake chest pains after a car accident and that Tilley did so to prevent police obtaining evidence of Tilley’s blood-alcohol level. All three denied the allegations and sought injunctions to restrain ICAC from investigating the matter, successfully arguing before the Court of Appeal the alleged conduct did not meet the statutory definition of corrupt conduct.

Prior to this action the definition of corrupt conduct was considered to cast a very wide net over a public official’s behaviour, but the matter shows there may be limits to the types of conduct considered corrupt.

Under the ICAC Act, corrupt conduct is any conduct of any person that could adversely affect the honest or impartial exercise of official functions by any public official, but it also includes any conduct of any person that could both:
  1. Adversely affect the exercise of official functions by any public official; and
  2. Which could involve perverting the course of justice.

The key question before the High Court now is whether the alleged actions of Cunneen, her son and Tilley caused the actual public official (the police officer) to act “adversely”.

In the earlier decision, the majority held the first limb had not been satisfied, finding the alleged conduct had not led the police to act in a corrupt manner. The majority focused on whether the alleged actions of the deputy senior Crown prosecutor caused the police officer to make a different decision. Although the alleged conduct could have caused the police officer to have made a different decision, the fact that the alleged actions did not was critical in the Court of Appeal’s judgement.

The High Court’s consideration of the matter is likely to have profound implications for the investigation of corrupt conduct more broadly and to constrain ICAC at a time where its investigation into political donations has led to claims by those it was investigating it was operating like a “kangaroo court”.

In submissions to the High Court, ICAC has argued it would be constrained from investigations involving conduct where that conduct has not led to any alleged dishonest or partial exercise of official functions by a public official or authority.

ICAC has already deferred completing reports in “Operation Credo” (involving Australian Water Holdings and Senator Arthur Sinodinos) and “Operation Spicer” (relating to political donations). ICAC has claimed three other investigations (not the subject of a public inquiry) are also impacted.

ICAC also submitted that corrupt conduct findings had been made against 26 persons between June 10, 2010, and October 2014 based on ICAC’s then understanding of the concept. It is possible question marks will arise over some of these previous investigations if the High Court upholds the Court of Appeal decision.

In Operation Jasper (involving former NSW mining minister Ian Macdonald as well as former NSW Labor MP Edward “Eddie” Obeid Sr) one of the parties has already made an application, arguing that under the interpretation of the Court of Appeal, it was not open for ICAC to have made a finding of corrupt conduct.

In any case, the High Court decision is likely to have a major influence on any reforms to the ICAC Act as well as future national ICAC-styled legislation that has been the subject of recent consideration.

*This article was originally published at The Mandarin.

Peter Fray

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