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IP ACCESS Request Made On: Tuesday, 09 January, 2018 at 17:13 AEDT Westlaw AU Delivery Summary Request made by: CHARLES STURT UNI : IP ACCESS Request made on: Tuesday, 09 January, 2018 at 17:13 AEDT Content Type: Cases Title Independent Commission Against Corruption v Cunneen Delivery selection: Current Document Number of documents delivered:1 Copyright © 2018 Thomson Reuters (Professional) Australia Limited (2015) 256 CLR 1 Independent Commission Against Corruption v Cunneen Jump to: » Judgment Court: High Court of Australia Judges: French CJ, Hayne J, Kiefel J, Gageler J, Nettle J Judgment Date: 15/4/2015 Jurisdiction: Australia (Commonwealth) Court File Number: S302/2014 Citations: [2015] HCA 14 , (2015) 256 CLR 1 , 89 ALJR 475 , 318 ALR 391, 151 ALD 78, [2015] ALMD 2156 Party Names: Independent Commission Against Corruption, Margaret Cunneen and Ors Legal Representatives: J K Kirk SC with S Robertson for the applicant (instructed by Crown Solicitor (NSW)); D F Jackson QC with A R Moses SC and R L Gall for the respondents (instructed by Cockburn and Co) Classification: » Criminal law > Federal and state investigative authorities > New South Wales > Independent Commission Against Corruption » Statutes > Acts of parliament > Interpretation > Particular classes of Act > Enabling Acts Headnote HC of A Independent Commission Against Corruption v Cunneen [2015] HCA 14 S302/2014 March 4; April 15 2015 Statutory Bodies — Functions — Investigating body — Independent Commission Against Corruption — Corrupt conduct — Definition as conduct that could adversely affect exercise of official function by public official — Whether included conduct that could adversely affect efficacy but not probity of exercise — Independent Commission Against Corruption Act 1988 (NSW), s 8 A principal function of the Independent Commission Against Corruption established by the Independent Commission Against Corruption Act 1988 (NSW) was to investigate any allegation or complaint that corrupt conduct may have occurred. The Commission sought to investigate an allegation that a Crown Prosecutor and her son, with the intention to pervert the course of justice, counselled the son’s de facto partner to pretend to have chest pains and that the de facto partner, with the intention to pervert the course of justice, did so, to prevent investigating police officers from obtaining evidence of the de facto partner’s blood alcohol level at the scene of a motor vehicle accident. The Commission contended that this was corrupt conduct within the meaning of s 8(2) of the Act. Section 8(1) provided that corrupt conduct was (a) any conduct of any person (whether or not a public official) that adversely affected, or could adversely affect, either directly or indirectly, the honest or impartial exercise of official functions by any public official, any group or body of public officials or any public authority; (b) any conduct of a public official that constituted or involved the dishonest or partial exercise of any of the his or her official functions; (c) any conduct of a public official or former public official that constituted or involved a breach of public trust; or (d) any conduct of a public official or former public official that involved the misuse of information or material that he or she had acquired in the course of official functions, whether or not for his or her’s benefit or for the benefit of any other person. Section 8(2) provided that corrupt conduct was also any conduct of any person (whether or not a public official) that adversely affected, or that could adversely affect, either directly or indirectly, the exercise of official functions by any public official, any group or body of public officials or any public authority and which could involve various specified matters, including perverting the course of justice. Held, by French CJ, Hayne, Kiefel and Nettle JJ, Gageler J dissenting, that the alleged conduct was not corrupt conduct within the meaning of s 8(2) of the Act and, accordingly, the Commission did not have power to investigate the allegation. For conduct to have an adverse effect upon the exercise of an official function by a public official within the meaning of s 8(2), the exercise must constitute or involve conduct of the kind identified in s 8(1)(b)-(d). It was necessary that the conduct affected or could have affected the probity of the exercise of an official function by a public official. It was insufficient that it affected or could have affected the Tuesday, 09 January, 2018 at 17:13 AEDT Page 1 (2015) 256 CLR 1 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 from that which would otherwise be the case. Per curiam. The matters specified in s 8(2) qualify the conduct said to be corrupt, not the exercise of official functions. It is necessary that the conduct said to be corrupt could involve a matter specified in that sub-section. It is not necessary that the exercise of official functions could involve such a matter. Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 381-382 [69]-[70], applied. Decision of the Supreme Court of New South Wales (Court of Appeal), affirmed. Application for Special Leave to Appeal from the Supreme Court of New South Wales. The Independent Commission Against Corruption was established by s 4(1) of the Independent Commission Against Corruption Act 1988 (NSW). A principal function of the Commission was to investigate any allegation or complaint that corrupt conduct may have occurred. Corrupt conduct was defined by s 7(1) to mean conduct of the kind described in s 8(1) or (2) which was not excluded by s 9. Pursuant to s 35(1) of the Act, by a summons dated 27 October 2014, the Commission required Deputy Senior Crown Prosecutor Margaret Cunneen SC, her son Stephen Wyllie and his de facto partner Sophia Tilley to attend and give evidence at a public inquiry to be conducted by the Commission under s 31(1) for the purposes of an investigation. The allegation under investigation identified by the summons was that, on 31 May 2014, Cunneen and Wyllie, with the intention to pervert the course of justice, counselled Tilley to pretend to have chest pains and that Tilley, with the intention to pervert the course of justice, pretended to have chest pains, to prevent investigating police officers from obtaining evidence of Tilley’s blood alcohol level at the scene of a motor vehicle accident. Cunneen, Wyllie and Tilley commenced a proceeding in the Supreme Court of New South Wales seeking a declaration that the Commission was exceeding its jurisdiction in conducting an investigation into the allegation and restraining the Commission from continuing to investigate the allegation. Hoeben CJ at CL dismissed the proceeding [1] . By a majority (Basten and Ward JJA, Bathurst CJ dissenting), the Court of Appeal allowed an appeal by Cunneen, Wyllie and Tilley, and declared that the Commission had no power to investigate the allegation [2] . The Commission applied for special leave to appeal to the High Court. French CJ referred the application to a Full Court to be heard as on an appeal. J K Kirk SC (with him S Robertson), for the applicant. The natural meaning of “adversely affects” in s 8(2) is effect which would be detrimental to the due exercise of official functions. An object of the Act is to constitute the Commission to investigate, expose and prevent corruption involving or affecting public authorities and officials, not merely corruption involving them [3] . Sub-sections (1) and (2) of s 8 are alternatives. Section 8(6) precludes an argument of expressio unius. That is consistent with a broad definition of corrupt conduct. The Commission is authorised to investigate criminal offences [4] . Section 12A requires it to direct its attention to serious corrupt conduct and systemic corrupt conduct. But that is not a definition of corrupt conduct. The principal functions of the Commission include investigation of systemic matters which may allow corrupt conduct without any allegation against a particular person, examination of laws, practices and procedures seeking externally to corrupt public administration, advising about changes in practices or procedures to reduce the likelihood of corrupt conduct [5] . [Kiefel J. Its functions are directed to the integrity of public administration.] That raises the question of what is meant by the integrity of public administration. It means the effective governance of public administration in a way not corrupted either internally or by external conduct directed to corrupting outcomes and processes. [Nettle J. Would corrupt conduct include tax evasion, simply because it reduces the tax take by the revenue?] Yes. Consistently with s 12A, the Commission would focus on serious and systemic tax evasion. Not every instance of a misstatement of duty will merit the attention of the Commission. [French CJ. Given that s 12A was enacted in 2005, does it bear on the construction [6] of s 8?] An amended Act must be read as a whole . Section 12A implicitly accepts that corrupt conduct is very encompassing. The fact that it is empowered to work in co-operation with such persons as the Commission thinks appropriate [7] illustrates the potential breadth of its jurisdiction. Each part of s 8(1) identifies some impropriety, or fault element, which merits the conduct being included in the definition. The fact that s 8(1)(a) refers to conduct which could adversely affect a public official illustrates that the corrupt conduct may be from outside, directed to the exercise of official functions, with no stain on any actual exercise of power. But it is limited to conduct that could affect the honest or impartial exercise of official functions.
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