ICAC v CUNNEEN [2015] HCA 14 – GOING BEYOND THE POLITICS

Introduction

The recent High Court case of the Independent Commission Against Corruption v Margaret Cunneen & Ors [2015] HCA 14 has been heavily criticised by journalists, politicians and some members of the legal profession for taking an alleged “narrow” approach to “corrupt conduct” and reigning in ICAC’s powers. These critics claim that the court should have taken a broad approach to interpretation as this would have produced a more useful political outcome. In this article I argue that the High Court’s legal reasoning is correct. Instead of starting from a desired political outcome, I analyse the High Court’s reasoning using the principles of statutory interpretation. While I found one of Gageler J’s reasons in the dissent compelling, I found the majority’s reasoning could still stand on other pillars of reasoning.

Background to the case

ICAC began an investigation into Margaret Cunneen, Deputy Crown Prosecutor of NSW. The alleged conduct was that Cunneen gave her son’s girlfriend certain legal advice when she had a car accident to avoid having a breath test. The alleged advice was that her son’s girlfriend should pretend having chest pains. Cunneen commenced action on two main grounds:

1.       That the allegations did not constitute “corrupt conduct” and the investigation was therefore beyond ICAC’s powers; and

2.       That ICAC provide reasons for its decision to commence an investigation.

Cunneen was unsuccessful before the primary judge on both points. ICAC is not required to disclose reasons for its decision to commence an investigation as section 111 of the ICAC Act entitled “secrecy” provides that ICAC is not required to produce documents or divulge information in court. Cunneen appealed on both point (1) and point (2).

In Cuneen v ICAC [2014] NSWCA 421 the Court of Appeal (Bathurst CJ, Basten JA, and Ward JA) affirmed the primary judge’s reasoning for ICAC not having to provide reasons for its decision to commence an investigation. However, Cunneen was successful before the New South Wales Court of Appeal on point (1). While the reasons between judges differed, the Court of Appeal held that the investigation was beyond ICAC’s powers because the alleged conduct was not “corrupt conduct”. ICAC applied for leave to appeal to the High Court.

Key sections of the ICAC Act

One of the functions of ICAC is to investigate corrupt conduct (s13 ICAC Act). “Corrupt conduct” is defined in sections 7 to 11 in Part 3 of the ICAC Act. In particular, section 8 describes the general nature of corrupt conduct. Section 8(1) and section 8(2) are the focus of the case. Section 8 establishes five main categories of “corrupt conduct”:

1.       Conduct adversely affecting directly or indirectly the honest or impartial exercise of official functions (s8(1));

2.       Dishonest exercise of official functions (s8(1));

3.       Breach of public trust (s8(1));

4.        Misuse of information acquired in the course of official functions (s8(1)); and

5.       Conduct that adversely affects, or that could adversely affect directly or indirectly the exercise of official functions by any public official, such conduct including perverting the course of justice (s8(2)).

For ICAC to be successful in the High Court, it would have to successfully argue that Cunneen’s alleged conduct fitted in one of these categories of “corrupt conduct”. ICAC argued for what I have labelled as Category 5 (italicised above). The interpretive question the High Court faced was specifically concerned with the meaning of s8(2), in particular the interpretation of the phrase “adversely affect”.

Section 2A of the ICAC Act is also important, as it states the principal objects of the ICAC Act and is referred to by the High Court in the course of interpreting section 8. I have pasted section 2A in full:

The principal objects of this Act are:

(a) to promote the integrity and accountability of public administration by constituting an Independent Commission Against Corruption as an independent and accountable body:

(i) to investigate, expose and prevent corruption involving or affecting public authorities and public officials, and

(ii) to educate public authorities, public officials and members of the public about corruption and its detrimental effects on public administration and on the community, and

(b) to confer on the Commission special powers to inquire into allegations of corruption.

What was the legal question before the High Court?

The majority phrased the question as:

“what is meant by the expression "adversely affects, or that could adversely affect ... the exercise of official functions by any public official" in the definition of "corrupt conduct" in s 8(2)” ([1]).

Gageler J also focuses on this question in his dissent, but framed the question more broadly, as “whether ICAC has power to investigate an allegation of criminal conduct having the potential to impede or impair the exercise of an official function by a public official in a manner involving no wrongdoing on the part of that public official” ([73]).

More specifically, the High Court was choosing between two possible alternative meanings of “adversely affect” in s8(2):

1.       Narrower meaning: Adversely affect or could adversely affect the probity of the exercise of an official function by a public official;

2.       Broader meaning: Adversely affect or could adversely affect the 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 ([2]).

What was the High Court’s answer?

The High Court ruled 4-1 that ICAC had no power to investigate those affairs as the alleged behaviour did not fall into the definition of “corrupt conduct”, specifically the definition in s8(2). The majority (French CJ, Hayne J, Kiefel J and Nettle J) delivered a joint judgment. Gageler J dissented.

The majority found that the narrower meaning was the correct interpretation. This resulted in the alleged conduct not being within the ambit of “corrupt conduct” and ICAC having no power to investigate the matter. In his dissent, Gageler J argued for the broader meaning of “adversely affect”.

Did the majority’s reasoning correctly follow the principle of statutory interpretation?

The modern purposive approach to statutory interpretation was clarified in Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355. Project Blue Sky requires the text being interpreted to be considered in light of its context and purpose. Section 33 of the Interpretation Act 1987 (NSW) requires that a construction promoting the purpose or object of the Act to be preferred to a construction that would not promote that purpose or object.  I go through the majority’s reasoning under the headings “Text”, “Context” and “Purpose” to show how sound the majority’s reasoning is. I also incorporate the dissenting judgment into my comments.

Text

The Project Bluesky approach requires interpretative analysis to start with the text to identify the plain and ordinary meaning. The ordinary meaning rarely ends up being the legal meaning, but it serves as a starting point for analysis.

The majority do cover this initial step, but do not identify an ordinary meaning. Instead they say “adversely affects” is a “protean expression capable of a number of meanings according to the context in which it appears” ([56] and [60]). They assert the meaning should be “adversely affect” as understood by public administration in the context of corruption (see discussion below). This is in contrast to Gageler J’s dissent and ICAC’s submissions that “adversely affect” has an ordinary meaning, being the broader meaning described above. Even if this is so, the Project Bluesky approach does not allow one to stop there. The ordinary meaning is merely the starting point and must be considered in context and in light of the statutory purpose.

Where Gageler J in his dissent really departs from the majority is the authority he relies on to support his interpretation. His argument is essentially that the plain and ordinary meaning of “adversely affects” is the broader meaning and that this should not be departed from unless there is a clear reason to do so (contrast with the modern Project Bluesky approach requires context and purpose to be considered in all cases). Gageler J relies on the case of PMT Partners Pty Ltd (In liq) v Australian National Parks and Wildlife Service [1995] HCA 36 where it is stated “it is "of fundamental importance" that the language of the definition is accorded its "natural and ordinary meaning unless some other course is clearly required", and that "limitations and qualifications are not read into" the definition unless "clearly required by its terms or its context". We don’t need to go into the dissent too much, but I would just like to make two points:

1.       PMT Partners was decided in 1995, before 1998 when Project Bluesky clarified the modern purposive approach to interpretation that context and purpose must always be considered;

2.       Even the PMT Partners approach appears to allow for context and purpose to be taken into account. Something that Gageler J does not appear to do in his dissent. While Gageler J does analyse the context of section 8, he does not link it back to the ordinary meaning of the text and does not contemplate the influence of this context on changing the ordinary meaning ([81] – [82]).

Context

This requires the text being interpreted to be read in the context of the rest of the Act. The Act is concerned with the integrity of public administration. This context informs the meaning of “adversely affects”. As the majority point out, the narrower meaning is consistent with the ordinary understanding of corruption in public administration, while the broader meaning is inconsistent with this understanding, as it would enable ICAC to exercise its “extraordinary coercive powers” well beyond the ordinary understanding of corruption and public administration ([3]). Public law principles also come into play here, where the judiciary generally take a more limited approach when dealing with coercive powers limiting the rights of individuals.

Considering the text in context with the rest of the Act can involve reconciling provisions within the Act. The majority cite the Project Bluesky approach to reconiliation:

"The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined 'by reference to the language of the instrument viewed as a whole'.”

In particular, they emphasise achieving a result that maintains the unity of all the statutory provisions ([31]).

This approach becomes important when the majority start analysing the words “adversely affect” with the rest of section 8, particularly s8(1). To reconcile the subsections, s8(2) becomes a two pronged test, as it takes on some of the characteristics of s8(1) (see [45] onwards). Conduct will be “corrupt conduct” for the purposes of s8(2) where:

1.       The conduct in question “could involve” any of the matters in 8(2) (a)-(y); and

2.       The conduct adversely affects or could adversely affect the probity of the exercise of an official function in one of the ways listed in s 8(1)(b)-(d).

The High Court argue that this construction, and the more narrow use of the words “adversely affect” is favourable, as it is consonant with the language in s2A and s9 and embraces offences which could affect the integrity of public administration and excludes those which could not.

Context can sometimes involve consideration of extrinsic material. Section 34 of the Interpretation Act 1987 (NSW) permits extrinsic material to be used in interpretation for two uses:

1.       To confirm the meaning is the ordinary meaning conveyed by the text; and

2.       To determine the meaning of the provision where the provision is ambiguous or obscure OR if the ordinary meaning leads to a result that is manifestly absurd or unreasonable. 

There is a war of words between the majority and the dissent on extrinsic material. The majority use the Explanatory Note to argue that ICAC was not intended to operate as a general crime commission and therefore the narrow interpretation is correct ([54] and [67]). Gageler goes into much more detail in the legislative history and convincingly argues that the majority is mislead in its reliance on this. While I believe Gageler J is correct here, the use of extrinsic material is not a major pillar of the majority’s reasoning, and the rest of the majority’s reasoning is still sound.

Purpose 

The ICAC Act has an “objects section” in section 2A (pasted above). The Objects section can be used to identify the purpose of the Act, but if this purpose conflicts with a more specific purpose identified elsewhere in the statute, this more specific purpose is to prevail (Russo v Aiello (2003) 215 CLR 643 at 645). The ICAC Act is relatively small, and no conflicting purposes are identified. The High Court can therefore rely on the legislative purpose as stated in the objects section.

The majority point out that the narrower meaning of “adversely affect” is consistent with the objects in s2A and that the broader meaning is inconsistent with these objects ([3]). The Act is directed to investigate, expose and prevent corruption affecting public authorities. It is therefore not likely it was intended to reach to a broad array of crimes having nothing to do with corruption in public administration apart from a direct/indirect effect conceivably had on the efficaciousness of public officials ([53]).

Conclusion

I hope I have demonstrated that the High Court majority had no choice. Once they had applied the principles of statutory interpretation, the legal meaning of “adversely affect” was clearly the narrower meaning. While to some commentators this may have lead to an unsatisfactory result politically, with ICAC’s powers potentially limited, this is not a concern of the High Court. In the traditional view of the separation of powers, if the public have an issue with legislation as it stands, such as the ICAC Act, they need to lobby the parliament for change through the usual processes. It is not the High Court’s role to be concerned with political outcomes.

There has been a lot of fear mongering that parliament could never get its act together to increase the investigative powers of ICAC by expanding the definition of corrupt conduct. I am not convinced by these arguments. Who do you think made the ICAC Act in the first place? While the political mood of parliament may change, there is no reason why the legislature, which managed to pass an Act establishing ICAC could not amend the Act.