Duncan v Independent Commission Against Corruption [2015] HCA 32: Review of Act
Wednesday 9 September 2015 @ 1.33 p.m. | Legal Research
The High Court has today (9 September 2015) unanimously dismissed a challenge to the Independent Commission Against Corruption Act 1988 (NSW) (The Act) by lawyers to the mining mogul Travers Duncan (Duncan). Duncan asked the Court to review the Act seeking a declaration that Part 13 of Schedule 4 is invalid.
Background
Duncan was found to have acted corruptly when he allegedly concealed the involvement of the Obeid family in a coal tenement. This fell within the meaning of ‘corrupt conduct’ in s 8(2) of the Act. Duncan initially challenged these findings in the Supreme Court of New South Wales but the appeal was dismissed.
He appealed the decision to the New South Wales Court of Appeal. Prior to the Court of Appeal’s decision, the High Court, on 15 April 2015, delivered its judgment in Independent Commission Against Corruption v Cunneen [2015] HCA 14. The High Court found that corrupt conduct in the Act does not encompass conduct which may not adversely affect the probity of the exercise of the functions of a public official.
It was understood at the time that Duncan’s activities did not affect the probity of the exercise of the functions of a public official. Consequently, Duncan immediately argued that the Independent Commission Against Corruption lacked the jurisdiction to make findings of corruption against him.
On 6 May 2015, the New South Wales Parliament enacted the Independent Commission Against Corruption Amendment (Validation) Act 2015 (NSW), which added Pt 13 of Sched 4 to the Act to ensure that the Commission did have jurisdiction to make such findings. The act would apply retrospectively to cover Duncan’s corrupt conduct finding. Duncan challenged the validity of this Act and the issue was removed to the High Court for decision.
High Court Decision
By a unanimous decision, the High Court dismissed Duncan’s application. The Court held that cll 34 and 35 of Pt 13 deem those acts done by the respondent before 15 April 2015 to be valid to the extent that they would have been valid if the definition of corrupt conduct in s 8(2) of the ICAC Act encompassed conduct which adversely affected the efficacy, but not the probity, of the exercise of official functions. The Court further held that cll 34 and 35 of Pt 13 retrospectively confer jurisdiction upon the respondent.
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