The NSW Independent Commission Against Corruption has no power to conduct an inquiry into the crown prosecutor Margaret Cunneen for alleged corrupt conduct, the majority of the high court bench has ruled.
The case will have far-reaching implications for how the watchdog conducts future investigations.
Four of the five justices agreed that Icac had no power to investigate the allegations against Cunneen because they did not fit the definition of “corrupt conduct” in the NSW legislation which establishes Icac’s scope.
Under the legislation “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.
Cunneen has been accused of advising her son’s girlfriend to feign chest pain after a car crash in May last year to avoid being breath-tested by police.
The high court found the alleged conduct did not occur when Cunneen 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.
Cunneen denies the claims, and said the watchdog did not have the jurisdiction to investigate the case because it did not fit the definition of “corrupt conduct” as defined in the Icac Act.
Cunneen’s lawyers argued that the case went beyond the scope of her professional life as a prosecutor and into the realm of her personal life as a private citizen.
“The majority [of the high court bench] 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 summary of the judgement said.
“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.
“The alleged conduct was not conduct that could adversely affect the probity of the exercise of an official function by a public official. The alleged conduct was therefore not corrupt conduct within the meaning of s 8(2) of the ICAC Act and ICAC has no power to conduct the inquiry.”
The New South Wales court of appeal in December last year ruled that Icac did not have the powers to pursue the case against the prosecutor as there was no evidence to suggest the police officer at the site of the crash acted dishonestly or partially.
Icac appealed against that decision in the high court, saying the case “fundamentally affects the scope of the commission’s powers to conduct investigations into corrupt conduct”.
Limiting the scope of what is considered “corrupt conduct” would have a profound impact on the watchdog’s ability to pursue cases, including inquiries into Australian Water Holdings and a number of other businesses linked to the disgraced former NSW Labor politician Eddie Obeid.
