In reasons released yesterday, Hoeben CJ at CL, sitting in the Supreme Court, struck down Deputy Senior Crown Prosecutor Margaret Cunneen SC’s bid to declare the ICAC investigation against her outside power and otherwise injunct the Commission from proceeding with public hearings.
Cunneen (first plaintiff) is under investigation for allegedly perverting the course of justice by together with her son (second plaintiff) counselling her son’s girlfriend (third plaintiff) to fake chest pains following a motor vehicle accident in which she was involved in May this year.
Was ICAC required to give reasons for its decision to investigate and to proceed by way of public hearing?
No. Section 111 of the ICAC Act 1988 comprises a number of secrecy provisions which prevents ICAC officers from divulging information relating to an investigation, even to a court. Hoeben CJ at CL found that divulging the information requested by the plaintiffs could prejudice the ongoing investigation, and s 111 authorised ICAC not to give reasons. Hoeben CJ at CL also noted that Cunneen was not prevented from challenging any findings ICAC made after its investigation and hearings were completed, notwithstanding the irreversible reputational damage which might have accrued as a result .
Was ICAC acting beyond its scope?
The plaintiffs’ lawyers argued that the components of corrupt conduct cited under the Act alleged, namely conduct which affects the exercise of official conduct by a public official, and perverting the course of justice, could not be established by virtue of the same conduct, and must be linked by different conduct. Moreover both components must be established before corrupt conduct could be made out. Otherwise, it was argued, ICAC would be equipped with special powers beyond that of the police to investigate individuals for criminal offences purely by virtue of their holding public office. It followed, in their submission, that the common law principle of legality – that certain rights, freedoms, immunities, prinicples and values cannot be eroded by legislation unless by express implication – operated to limit the scope of the ICAC inquiry in this instance. Hoeben CJ at CL disagreed, and noted that the Act clearly evidenced a legislative intention to erode these rights and privileges, including the right to silence and the privilege against self-incrimination . The language of the Act did permit the same conduct to substantiate the two necessary components of corrupt conduct .
Did ICAC take into account irrelevant considerations?
The plaintiffs’ lawyers submitted that the conduct as alleged had nothing to do with Cunneen’s status as a Crown Prosecutor and, if it occurred, it did so in the context of her status as a private individual. It would follow, therefore, that taking into account Cunneen’s status as a Deputy Senior Crown Prosecutor was in irrelevant consideration. Hoeben CJ at CL turned this submission on its head by pointing out that status as a public official is not a requirement of being investigated by ICAC, as the second and third plaintiffs are not public officials . There was nothing in the Act which suggested ICAC should not consider an individual’s holding of public office, and no distinction was made in the Act between private and public conduct .
Could the allegations support a charge of perverting the course of justice?
The plaintiff’s lawyers argued that because curial proceedings were not on foot at the time of the impugned conduct, the police investigation was not the “course of justice” so a charge of perverting the course of justice could not be made out on the facts alleged. Hoeben CJ at CL found that the plaintiff’s lawyers relied on an erroneous interpretation of Einfeld v R  NSWCCA 215, and rather, cases such as R v Rogerson (1992) 174 CLR 268 and R v OM  NSWCCA 109 made it clear that interference with police investigations prior to proceedings being commenced could indeed constitute perverting the course of justice .
Was ICAC not authorised under the Act to hold a public hearing for this matter?
The plaintiffs’ lawyers relied on ICAC’s failure to demonstrate that it took into account the mandatory considerations of whether holding a public hearing gave risk to an undue risk to the reputation of the person being investigated would be damaged, and the balancing test between the public interest in holding hearings in public and the right to privacy of the person concerned. Given that the ICAC was not required to give reasons for its decision to hold a public hearing, the only other ground on which the ICAC’s decision might be impugned would be that it was patently unreasonable in a Wednesbury / Li sense, was difficult to make out, and indeed wasn’t .
Cunneen and the other two plaintiffs sought to exhaust every legal avenue in shutting down what, in her own words, she described as a “malicious complaint”. It is conceivable that another purpose of the Supreme Court proceeding was to unmask her accuser.
To invoke the reviewing power of the Supreme Court to curtail the operation of an independent body such as the ICAC would never be an easy feat. ICAC was given sweeping powers by Parliament in order to survive such legal challenges. Its “Star Chamber” qualities, including the abrogation of fundamental legal rights and privileges, are justified on the theory that public officials voluntarily participate in public life and hold a concomitant duty of responsibility, suspected failure of which can result in investigations which would be derogatory of the rights and privileges of private individuals, whose freedom from unfair impositions of the State and other private individuals is protected by common law rights and privileges.
Whether ICAC has gone too far in this instance is not a question for the Supreme Court – it is in the name: the Independent Commission Against Corruption. The provenance and merit of the complaint which led to the investigation hopefully will be aired in the coming weeks. Whether the reputational damage which follows a public ICAC inquiry is reversible is yet to be determined. Perhaps this common criticism of ICAC will result in legislative changes to the ICAC Act. Again, this is a matter for the legislature, and not the judicature.
A follow-up article might look at the defamation law implications of this matter, which are currently beyond the author’s contemplation (and capacity).
Image credit: The Australian
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