Rulings by the NSW Independent Commission Against Corruption (Icac) may be reviewed in court and its current investigations audited to ensure they are not “trivial” in the wake of a high court decision which limits the scope of its powers.
The court found, in a four to one decision, that Icac had acted beyond the scope of its powers when it decided to investigate NSW crown prosecutor Margaret Cunneen over allegations she told her son’s girlfriend to fake chest pains to avoid a breath test after a car accident.
After Cunneen was unsuccessful in the NSW supreme court, the NSW court of appeal found in her favour and Icac’s appeal against that decision was dismissed by the high court on Wednesday. The court found the allegations against Cunneen did not fall under the definition of corrupt conduct which can be investigated by Icac as defined in the NSW legislation that governs the commission.
The decision could have wide-reaching ramifications for past decisions made by Icac as well as current and future investigations, according to University of New South Wales associate professor of law Gabrielle Appleby.
A spokeswoman for Icac said the commission was considering the decision and was yet to release a public statement on it.
Appleby said it could be facing an internal review or audit of current investigations to ensure they were complying with the scope of its powers decided by the high court.
“The facts of Miss Cunneen’s case raise an important question about whether the Icac should be investigating that type of matter at all, it raised pretty trivial allegations on a minor scale,” she said.
“I think there’s a real question about whether the Icac was complying with its statutory obligations to direct attention against serious or systemic corrupt conduct.”
Appleby said the high court decision had effectively “clipped the wings” of Icac, and certain people who have had corruption findings made against them could ask the decisions to be reviewed in court in a bid to have them quashed, though they would be unlikely to be able to seek any monetary compensation.
The NSW government could amend the legislation to widen Icac’s scope, and Appleby said it should be an important consideration.
“Politically there is a pretty low appetite for extending the Icac’s powers given the damage sustained by both parties in the past few years but there should be a discussion about whether the Icac should be investigating the conduct of private individuals,” she said.
“There’s a very good argument conduct should be investigated by police but also really strong argument perhaps this type of conduct should come in the Icac’s jurisdiction … now we decide as state whether we want the Icac’s wings clipped in this way.”
The NSW acting premier, Troy Grant, said the government had taken note of the decision but did not say whether it would consider any changes to legislation.
“The government will review the high court’s decision and take all appropriate advice on any action required,” he said. “I will meet with the premier upon his return to discuss this and other matters.”
Icac’s full statement said: “The NSW Independent Commission Against Corruption (Icac) is currently considering the decision of the high court of Australia in this matter and will be making a public statement in due course. The commission will be making no further comment at this stage.”
In the Icac act, “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” and which could involve certain kinds of misconduct listed, including perverting the course of justice.
The high court case centred around whether the definition of corrupt conduct extended to a private citizen who misleads public officials.
The high court found Cunneen’s alleged conduct did not occur when she was acting in her role as crown prosecutor. Icac had tried to argue it was corrupt conduct because it could adversely affect the exercise of official functions by the investigating police officers and by a court that would deal with any charges arising from the car accident.
Icac has delayed publishing reports in two separate inquires since Cunneen took the commission to court.
The reports, Operation Spicer and Operation Credo, one into alleged corrupt developer donations to the NSW Liberal party and the other into Australian Water Holdings, were supposed to be handed down before the 28 March election but a date for the publication is yet to be set.
Operation Spicer examined allegations the NSW Liberal party accepted illegal donations from developers and implicated eight Liberal party MPs who defected to the crossbench.
Six of them resigned before the state election.
The then NSW premier Barry O’Farrell resigned after it was revealed at an Operation Spicer hearing that he had not declared a $3,000 bottle of 2011 Grange given to him by developer Nick Di Girolamo.
Politicians from both sides of the parliament were embroiled in the allegations in Operation Credo which centred around Australian Water Holdings. Icac heard various people in the NSW government lobbied for the company to be awarded a state government contract worth millions at different times.
