Retrospective ICAC Validation Bill Rushed Through Parliament and Assented In Single Day

Thursday 7 May 2015 @ 11.42 a.m. | Crime | Legal Research

The NSW Parliament has rushed the Independent Commission Against Corruption Amendment (Validation) Bill 2015 through both houses in a single day in an attempt to preserve previous findings of the Commission from being overturned by court orders.  According to the Sydney Morning Herald, the bill was originally planned to be introduced next week, but instead was rushed through Parliament “in a bid to ensure the law was passed before court orders were made overturning findings against mining mogul Travers Duncan and his associates”. 

The Bill has already been assented by the Governor and is the first Act passed in 2015.  The Act commenced immediately upon assent.

Nevertheless, legal action may continue.

The Bill

The Bill adds a new Part 13 to the Independent Commission Against Corruption Act 1998 (NSW).

The Explanatory Note for the Bill notes:

“The object of this Bill is to amend the Independent Commission Against Corruption Act 1988 to validate certain previous actions of the Independent Commission Against Corruption (ICAC) following the decision of the High Court in Independent Commission Against Corruption v Cunneen [2015] HCA 14….

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.”

The Bill does not apply to anything done by ICAC after the date of the decision, which the Sydney Morning Herald notes “means the commission cannot yet make findings in its investigations into Obeid-linked company Australian Water Holdings and Liberal Party donations, which were affected by the ruling.”

ICAC’s future will instead be decided by a review which the Premier announced earlier this week, saying the government wants “the strongest possible watchdog and the best possible outcome.”  The review will be chaired by former High Court Chief Justice Murray Gleeson, and will examine the “appropriate scope” for the ICAC’s jurisdiction and report back by July 10.

Cross-Party Support

The Bill had a swift passage through Parliament as all parties supported the measures.

Premier Mike Baird introduced the Bill by saying:

“In simple terms, we will not tolerate corruption in this State, end of story. All previous findings of corruption by the Independent Commission Against Corruption [ICAC] should, and will, stand.”

He also thanked the Opposition for supporting the Bill.

Opposition Leader Luke Foley agreed with the Premier’s call for swiftness, noting:

“I am advised that yesterday following the Premier's announcement a number of applications were filed in the Supreme Court seeking to overturn past findings of the Independent Commission Against Corruption [ICAC]. That leads us all to understand the urgency of the passage of this legislation through this Parliament.”

The Greens also stated their support, with Dr John Kaye telling the Legislative Council:

“Like I think all members of Parliament, we see this as an essential step to protect the Independent Commission Against Corruption [ICAC] from a flood of litigation, which would not only be expensive but could threaten a number of important findings of ICAC.”

The Greens and the Shooters and Fishers Party did express some in principle concern about the retrospective nature of the legislation, but acknowledged it was a special case which attracted a great deal of "public concern".

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