In a much anticipated ruling, today the High Court has held, by majority that the New South Wales Independent Commission Against Corruption (ICAC) has no power to conduct an inquiry into allegations that were made against Crown Prosecutor Margaret Cunneen and others, because the alleged conduct was not “corrupt conduct” as defined in s 8(2) of the Independent Commission Against Corruption Act 1988 (NSW).
The allegation presented by ICAC was that Cunneen had counselled her eldest son’s girlfriend Sophia Tilley, to fake chest pains so that police officers would not be able to obtain a blood alcohol reading at the scene of a motor vehicle accident Ms Tilley was involved in.
Section 8(2) provides that “corrupt conduct” is “any conduct of any person … that adversely affects, or that could adversely affect, either directly or indirectly, the exercise of official functions by any public official.” ICAC argued that the alleged conduct was ‘corrupt conduct’ within the meaning of the Act because it could adversely affect the exercise of official functions by the investigating police officers or by a Court that would deal with any charges arising from the motor vehicle accident.
As outlined in the judgment summary published today by Senior Executive Deputy Registrar Ben Wickham:
“The High Court unanimously granted special leave but, by majority, dismissed the appeal. The majority held that the expression “adversely affect” in s 8(2) refers to conduct that adversely affects or could adversely affect the probity of the exercise of an official function by a public official. The definition of “corrupt conduct” does not extend to conduct that adversely affects or could adversely affect merely the efficacy of the exercise of an official function by a public official in the sense that the official could exercise the function in a different manner or make a different decision.”
Accordingly, the allegation that Cunneen advised Sophia Tilley to feign chest pains to avoid a breath test was found not to be corrupt conduct.
The decision could potentially have far reaching ramifications. A number of previous corruption findings may now need reviewing and could be struck down by the Supreme Court. It also changes the likelihood of ICAC bringing prospective inquiries.
For the full judgment summary visit http://www.hcourt.gov.au/assets/publications/judgment-summaries/2015/hca-14-2015-04-15.pdf