Cunneen case hampers public servants’ work

By Michael Winram

Thursday April 16, 2015

The High Court has handed down its decision on the definition of “corrupt conduct” in the New South Wales Independent Commission Against Corruption Act 1988. The High Court has found against the ICAC, and the decision will limit the type of corrupt conduct that ICAC can investigate.

Let’s recap the facts. ICAC wanted to investigate allegations against Margaret Cunneen, the deputy senior crown prosecutor in NSW, her son and her son’s girl-friend, Sophia Tilley. It was alleged that Cunneen and her son counselled Tilley to fake chest pains after a car accident and that Tilley did so to prevent police obtaining evidence of Tilley’s blood alcohol level. All three denied the allegations and sought injunctions to restrain ICAC from investigating the matter, successfully arguing before the Court of Appeal the alleged conduct did not meet the statutory definition of corrupt conduct. ICAC was not happy with the decision of the Court of Appeal and appealed to the High Court.

It should be noted that Cunneen’s alleged conduct was not being investigated for the effect it would have on her official functions as crown prosecutor, but on the effect of her conduct on the police officer who was at the scene of Tilley’s car accident. Although there was no suggestion that the police officer acted dishonestly or partially, ICAC argued that that the alleged conduct was corrupt because it prevented the police officer collecting evidence of Tilley’s blood alcohol level. That is, the conduct had the capacity to detrimentally affect the exercise of the police officer’s functions in the sense that the police officer might make a different decision or exercise his or her functions in a different manner.

In defining “corrupt conduct”, ICAC Act distinguishes between the conduct of a “public official”, and the conduct of “any person” that “adversely affects, or could adversely affect” the exercise of official functions of any public official. In this case, the High Court was concerned with the conduct of “any person” that could adversely affect the functions of a public official.

The High Court said that to be corrupt conduct for the purposes of ICAC Act, the conduct of the “other person” must adversely affect the exercise of an official function in such a way that the exercise of the official function constitutes or involves:

  • a dishonest or partial exercise of an official power,
  • a breach of public trust, or
  • the misuse of information or material acquired in the course of the public official’s official functions.

That is, the focus is not on the conduct of the other person (such as Cunneen) but on the impact the conduct had on the public official exercising official functions and whether the conduct resulted in the public official exercising its functions dishonestly, partially or in breach of public trust. Practically this means, for example:

  • the mere act of telling lies to a police officer with the object of deflecting the officer from collecting evidence or prosecuting would not count as corrupt conduct for the purposes of the ICAC Act, and therefore ICAC cannot investigate such conduct.
  • ICAC cannot investigate circumstances where a public authority relied on advice of, say, a fraudulent stockbroker, insurance company or savings institution, unless it can be demonstrated that relying on the advice led or resulted in the ‘public official’ acting dishonestly, partially or in breach of public trust.
  • ICAC cannot investigate a person who engages in state tax or revenue evasion, unless the conduct results in a public official acting dishonestly, partially or in breach of public trust.

The High Court’s decision will limit the type of conduct that ICAC investigates. As noted previously in the Mandarin, ICAC has already deferred completing reports in Operation Credo (involving Australian Water Holdings and Senator Arthur Sinodinis) and Operation Spicer (relating to political donations). ICAC has claimed three other investigations (not the subject of a public enquiry) are also impacted.

ICAC also submitted that corrupt conduct findings had been made against 26 persons between June 10, 2010 and October 2014 based on ICAC’s then understanding of the concept. These investigations are now in doubt.

More at The Mandarin: When no action is the best action: justifying non-enforcement

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