Independent Commission Against Corruption v Cunneen
High Court of Australia · 2015
Independent Commission Against Corruption v Cunneen [2015] HCA 14
Conduct that makes an official's job harder is not necessarily conduct that corrupts it. Which of the two does a corruption watchdog have power to investigate?
New South Wales legislated within months, but it did not undo this construction. The wording of s 8(2) that the Court construed -- "adversely affects, or that could adversely affect ... the exercise of official functions ... and which could involve any of the following matters" -- still stands, and Cunneen still tells you what it means. What the Independent Commission Against Corruption Amendment Act 2015 (NSW) did was add a new and separate limb, s 8(2A): corrupt conduct is also conduct "that impairs, or that could impair, public confidence in public administration" and which could involve one of five listed matters -- collusive tendering; fraud in relation to applications for licences or permits under legislation protecting health, safety or the environment or facilitating the management and commercial exploitation of resources; dishonestly obtaining or benefiting from public funds or public assets for private advantage; defrauding the public revenue; and fraudulently obtaining or retaining appointment as a public official. That is a targeted expansion into named categories, not a general reversal. Check which limb is engaged: s 8(2A) carries no probity requirement, but it reaches only its own list.
AND FOR ACTS BEFORE 15 APRIL 2015, PARLIAMENT REVERSED THE RESULT WITHOUT TOUCHING THE CONSTRUCTION -- so the date is the first thing to check. Cunneen was decided on 15 April 2015. New South Wales inserted Part 13 of Schedule 4 to the ICAC Act, headed (in the Act's own words) "Validation relating to decision on 15 April 2015 in Independent Commission Against Corruption v Cunneen [2015] HCA 14", comprising cl 34 (Interpretation) and cl 35 (Validation).
WHAT IT DOES, in the High Court's description. Duncan v Independent Commission Against Corruption [2015] HCA 32, NETTLE AND GORDON JJ at [45]: Pt 13 "deems to be valid acts done by the respondent before 15 April 2015 to the extent that they would have been valid if corrupt conduct as defined in s 8(2) of the ICAC Act encompassed conduct which adversely affected the efficacy, but not the probity, of the exercise of official functions". At [46] their Honours prefer to put it that cll 34 and 35 "do not amend s 8(2) ... in its application to acts done by the respondent prior to 15 April 2015" but "create a new or different legal regime in which, for a prescribed period of time, the concept of corrupt conduct ... is taken to be expanded to encompass conduct which adversely affected, or could adversely affect, the efficacy, but not the probity, of the exercise of official functions", and then validate acts done in that period accordingly.
THE CHALLENGE TO IT FAILED.
FRENCH CJ, KIEFEL, BELL AND KEANE JJ at [32]: "The applicant's challenge to the validity of Pt 13 fails." At [25] they characterise cl 35 as a "retrospective conferral ... of the jurisdiction which was held lacking in Cunneen", a grant of jurisdiction attaching "new legal consequences and a new legal status to things done which otherwise would not have had such legal consequences or status".
SO THE PRACTICAL ORDER OF QUESTIONS IS: when were the ICAC acts done? Before 15 April 2015, Pt 13 may validate what this case would otherwise have invalidated, and Duncan holds that validation good. On or after that date, Cunneen's construction governs s 8(2) -- and the separate s 8(2A) limb added by the 2015 Amendment Act, recorded in the entry above, may also be in play. None of this disturbs what s 8(2) MEANS, which is what this case decided and what a student is asked.
What happened?
ICAC proposed to investigate an allegation that Margaret Cunneen SC, a senior Crown prosecutor, had counselled someone to fake chest pains at the scene of a motor accident so as to prevent police from obtaining evidence of her blood alcohol level ([23]). ICAC said that if true, this could adversely affect the exercise of police officers' official functions, and so was "corrupt conduct" under s 8(2) of the Independent Commission Against Corruption Act 1988 (NSW). The Court of Appeal held it was not; ICAC sought special leave.
The whole case turned on two words. As the majority put it, "[a]dversely affect" is "a protean expression", and in this context there were "only two possibilities": conduct affecting the probity of an official's exercise of function, or conduct affecting its efficacy — so that the official "could exercise the function in a different manner or make a different decision from that which would otherwise be the case" ([2]).
What did the Court decide?
Special leave was granted, the appeal treated as instituted and heard instanter, and dismissed with costs ([72]). Four judges to one — French CJ, Hayne, Kiefel and Nettle JJ, with Gageler J dissenting. ICAC could not investigate this allegation as corrupt conduct.
Proposition
What is the principle?
Under s 8(2) of the Independent Commission Against Corruption Act 1988 (NSW), conduct "adversely affects" the exercise of official functions only where it could adversely affect the probity of that exercise, in one of the ways described in s 8(1)(b)–(d) — not where it merely makes the function less effective or produces a different decision.
The majority's reason was not that the word was plain. It was that the word had no plain meaning: "adversely affect" is "a term of uncertain connotation which derives its intended meaning from its context", and a statutory definition is susceptible to limitation where that is "clearly required by ... its context" ([62]). The efficacy reading would sweep into "corrupt conduct" "a broad array of criminal offences and other unlawful conduct having nothing to do with the ordinary understanding of corruption in public administration", and would let ICAC deploy "its extraordinary coercive powers (with consequent abrogation of fundamental rights and privileges)" across that field ([3]).
Gageler J took the other view, holding it enough that criminal conduct "has the potential to impair the efficacy of an exercise of an official function" ([74]).
Why does this case matter?
Because of what happened next, and what did not. Within months New South Wales amended the Act — but read the amendment before you assume it swept the decision away. Section 8(2) still carries the words the Court construed, and this case still supplies their meaning. What Parliament added was s 8(2A), a separate limb covering conduct that could impair public confidence in public administration, confined to five named categories. A student who answers "that was reversed by statute" has the shape of the legislative response wrong, and will reach for the wrong limb.
It is also a case where the consequences argument did the work in a particular way. ICAC's reading was not absurd; it was the wider of two available readings. What defeated it was that the wider reading would have attached extraordinary coercive powers to an ordinary field of criminal conduct. That is an argument about what the legislature is unlikely to have intended, not about what the words can bear.
Exam and application relevance
Identify the limb. Section 8(1), s 8(2) and s 8(2A) are different tests with different triggers, and the answer to "is this corrupt conduct?" depends on which one you are in. Under s 8(2) you need both the probity effect and one of the matters in paragraphs (a)–(y); under s 8(2A) you need impairment of public confidence and one of its five categories.
Then, generally: construe the empowering words, not the body's purpose. The consequences of a rival construction are an argument about meaning — here, that the wider reading would confer coercive powers over ordinary crime — and not a substitute for one. Make that argument in that form.
Check your understanding
Parliament amended the Act after this decision. Does that tell you the High Court construed s 8(2) wrongly — and does s 8(2) now mean something different?