The recent High Court decision in Independent Commission Against Corruption v Cunneen  HCA 14 has led to debate about the coercive powers of bodies such as ICAC and how best to proceed after the High Court clearly defined corrupt conduct in their judgement.
NSW Parliament has passed a new bill as a result of the High Court’s decision.
“The Bill does not reverse the High Court decision, but validates action taken by ICAC before 15 April 2015 on the previous understanding that corrupt conduct extended to relevant criminal conduct that adversely affected in any way the exercise of official functions (and accordingly validates action taken by others in reliance on the action taken by ICAC). The Bill does not authorise the continuation of investigations or inquiries by ICAC that have been held by the High Court to exceed its jurisdiction, but enables ICAC to refer any such matter to other investigative or prosecuting authorities and to provide them with any evidence or information obtained by ICAC before 15 April 2015.”
Explanatory Notes, Independent Commission Against Corruption Amendment (Validation) Bill 2015 (emphasis added).
The government has also announced a review will be held to determine the future of ICAC. It will be conducted by Former Chief Justice of Australia Murray Gleeson and author of the 2005 report into ICAC Bruce McClintock SC.
Read Premier Baird’s speech on the reading of the Bill.
A summary of events can be found on TimeBase
SBS wrote briefly on the new laws.
Quentin Dempster has an extended comment in the Sydney Morning Herald.
Bruce McClintock’s 2005 report can be found here.
Malcolm Stewart, the Rule of Law Institute’s Vice President wrote in The Australian ($) cautioned against the use of retrospective laws in response to the High Court’s decision. Retrospective laws reduce certainty and predictability in the legal system, and contravene many other rule of law principles.
Mr Stewart writes:
ICAC wants the ICAC Act to be urgently amended…ICAC is an important body and has highlighted many corrupt practices at all levels of public administration. By doing so it has no doubt deterred many others. ICAC wants its proposed amendments to be retrospective; it wants a free pass for contravening its own governing statute.
and makes it very clear that:
The government should not seek any retrospective amendments to the ICAC Act. The appropriate response is to conduct an inquiry to assess why ICAC sought to investigate Cunneen and what powers the agency should have to carry out future investigations and hearings.
Other media and academic commentators have discussed this key issue:
Dr Gabrielle Appleby of the University of New South Wales, writing in The Conversation and published by RoLIA analyses the High Court’s judgement and highlights the need for a review of ICAC’s compliance with statutory requirements.
Richard Ackland in The Guardian is critical of ICAC and its use of its powers of investigation.
The fallout in terms of current and past investigations by ICAC is discussed by Michaela Whitbourn in the Sydney Morning Herald.
Former Premiers of NSW, Morris Iemma, Nick Greiner and Bob Carr, in the Sydney Morning Herald, highlight the key issues for the government in their decision making about a legislative response to the decision.