A legal academic has played down the implications of the High Court’s ruling in the Margaret Cunneen matter after ICAC warned of its damaging impact.
Dr Gabrielle Appleby (pictured) from the UNSW Law School told Lawyers Weekly many important cases will not be affected by last week’s decision.
“The decision only concerns ICAC’s consideration of private individuals, which is narrow,” Dr Appleby said.
The High Court found ICAC’s jurisdiction did not extend to private citizens who mislead public servants, as long as the latter do not act dishonestly.
Dr Appleby claimed the result will affect only select cases involving private citizens, and each would be reviewed on a case-by-case basis to determine if ICAC exceeded its powers under the ICAC Act.
She could not, however, specify which ICAC matters would be affected.
Her comments follow claims by ICAC that the court’s interpretation of “corrupt conduct” will “substantially damage” its ability to carry out its investigation and corruption-prevention functions.
“The decision means that the Commission will be unable to investigate or report on several current operations, and will severely restrict its ability to report on operations Spicer and Credo,” ICAC stated.
Operation Credo examined the Obeid-linked Australian Water Holdings, while Operation Spicer investigated the NSW Liberal Party donations scandal.
The watchdog also warned that the decision could involve the NSW Government and ICAC in “costly and protracted litigation involving persons who have been the subject of corrupt conduct findings based on investigations conducted under section 8(2)”.
But some legal and political figures have questioned ICAC’s argument and its powers.
Former Supreme Court judge David Levine QC has accused the watchdog of being a “poor loser” and launching “an improper and dismissive attack on the judgment of the highest court in the land” after ICAC urged the NSW Government to legislate in response to the High Court decision, The Sydney Morning Herald reported .
Mr Levine, who oversees ICAC as its inspector, also cautioned Premier Mike Baird against “any knee-jerk legislative reaction” that would give ICAC greater powers.
Mr Levine is leading an audit of the commission’s investigation into Ms Cunneen.
Meanwhile, Professor Gary Sturgess, an architect of ICAC, along with the former premier Nick Greiner, have applauded the High Court’s decision, stating the ICAC Act was not meant to grant the commission broad powers to investigate general crime.
ICAC launched an inquiry into Ms Cunneen last year, alleging she advised her son’s girlfriend, Sophie Tilley, to fake chest pains to avoid a police breath test. Ms Cunneen denied the allegation.