Duncan v Independent Commission Against Corruption
High Court of Australia · 2015
Duncan v Independent Commission Against Corruption [2015] HCA 32
A corruption report had been published, and then the High Court read the watchdog's powers more narrowly. Within weeks Parliament passed a law about acts like that report. Could a court still be asked to strike the findings down?
What happened?
An ICAC report of July 2013 found that Travers William Duncan had engaged in conduct which adversely affected, or could have adversely affected, the efficacy of the performance of functions by officials of the executive government of New South Wales, and the Commission concluded this was "corrupt conduct" within s 8(2) of the Independent Commission Against Corruption Act 1988 (NSW) ([2]). He challenged the findings in the Supreme Court. McDougall J dismissed his claim, and while his application for leave to appeal was pending in the Court of Appeal this Court decided Independent Commission Against Corruption v Cunneen on 15 April 2015, holding that "corrupt conduct" did not encompass conduct which did not compromise the probity of public administration ([3]). The report did not suggest his conduct had affected probity, so he added a claim that ICAC lacked jurisdiction.
On 6 May 2015 Parliament enacted the Independent Commission Against Corruption Amendment (Validation) Act 2015 (NSW), inserting Part 13 of Schedule 4 to the ICAC Act ([4]). Duncan added a claim that Part 13 was invalid. Gageler J removed that part of the proceedings into the High Court on 25 May 2015 ([6]). It was common ground that, given Cunneen, the report had been affected by jurisdictional error when first published ([7]).
What did the Court decide?
The challenge to Part 13 failed, and the removed part of the proceedings was dismissed with costs ([32]-[34]). There were three sets of reasons: French CJ, Kiefel, Bell and Keane JJ; Gageler J, who agreed with the orders ([43]); and Nettle and Gordon JJ, who agreed with the orders and with the joint reasons on what Part 13 deems valid, while preferring a different characterisation of how it operates ([45]-[47]). The Court did not revisit the construction of s 8(2) adopted in Cunneen.
Proposition
What is the principle?
Part 13 of Schedule 4 (cll 34 and 35) provides that anything done or purporting to have been done by ICAC before 15 April 2015 "that would have been validly done if corrupt conduct for the purposes of this Act included relevant conduct is taken to have been, and always to have been, validly done" (cl 35(1), set out at [8]). "Relevant conduct" is conduct that would be corrupt conduct if s 8(2) extended to conduct affecting the efficacy (but not the probity) of the exercise of official functions (cl 34(1)). French CJ, Kiefel, Bell and Keane JJ read this as a deeming of validity "to the extent that" the acts would have been valid on that wider definition ([11]), and as operating "to amend s 8(2) of the ICAC Act in its application to acts done by the respondent prior to 15 April 2015" ([12]). What matters is the date of ICAC's act, and the validation is confined to what the wider definition would have made valid.
That construction decided the constitutional question. Part 13 widens ICAC's jurisdiction retrospectively; it does not tell a court to treat as valid something the legislature has left invalid. So it is a change in substantive law, which the joint reasons held does not interfere with judicial power, does not engage the Kable principle because it neither confers a power on nor directs the Supreme Court ([27]-[28]), does not contravene Kirk because it withdraws no jurisdiction from that Court ([29]), and would not offend Chapter III even as a Commonwealth law ([31]).
The Justices did not all describe the mechanism in the same way. Gageler J said cl 35(1) extends the authority conferred on ICAC to include the historical acts ([41]). Nettle and Gordon JJ would put it as a new or different legal regime for a prescribed period rather than an amendment of s 8(2) ([46]). All seven agreed in the result.
Why does this case matter?
It is the second half of a two-case story, and a problem-writer sets it as the follow-on to Cunneen: what became of reports ICAC had already published on the wider reading? Two answers go wrong. One treats Cunneen as the end of the matter for those reports. The other cites Duncan for more than it decided; the Court itself described Part 13 as "brief but comprehensive" and as concerned "to address only one problem" ([8]).
Exam and application relevance
Start with the date of the Commission's act. The validation in cl 35(1) concerns things done before 15 April 2015, and it validates them only to the extent they would have been valid under the wider definition, so the facts that matter are when ICAC acted and what it found. For a constitutional attack on a validation provision, characterise the provision first, as the Court did: does it attribute validity to administrative acts and alter the substantive law, or does it direct a court as to the exercise of its jurisdiction? Name the Justices behind any account of the mechanism, since the joint reasons, Gageler J and Nettle and Gordon JJ differ on how to describe it.
Cite Duncan for what it decided about Part 13 and the Kable and Kirk challenges to it. It is not authority on the meaning of s 8(2), which is the subject of Cunneen.
Check your understanding
1. On 1 March 2015 ICAC made a finding of corrupt conduct against X based only on conduct that affected the efficacy of an official function. Which provision is relevant, and what is the condition of its operation? 2. How did the four-Justice joint reasons and Nettle and Gordon JJ differ in describing what cll 34 and 35 do, and on what did they agree? 3. Why did the applicant's Kable and Kirk arguments depend on how Part 13 was construed, and what was conceded about that?