Cunneen case hampers public servants’ work

The High Court ruling in favour of Margaret Cunneen is the first time the powers of NSW’s Independent Commission Against Corruption were tested by the court. Michael Winram outlines the implications for the public service when a member of the public lies.

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.

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