ICAC laws withstand High Court scrutiny

ICAC laws withstand High Court scrutiny

Retrospective laws introduced in NSW to urgently shore up previous findings from the state’s corruption watchdog have survived a constitutional challenge brought by rich-lister Travers Duncan.


The mining mogul has been engaged in a legal battle with the ICAC since 2013, when then-commissioner David Ipp declared him, and a number of other businessmen and former politicians, corrupt over dealings relating to the Mount Penny coal tenement in the NSW Bylong Valley.

When the High Court ruled the ICAC had overstepped its jurisdictional bounds in the case of high-ranking NSW prosecutor Margaret Cunneen SC, Mr Duncan decided to follow suit and elevate his case.

The High Court ruling cast doubt on other previous ICAC decisions and this prompted NSW Premier Mike Baird to rush retrospective laws through the parliament to affirm all commission findings that pre-dated the Cunneen decision.

Mr Duncan took his matter to the High Court arguing the Baird government’s ICAC validation laws were unconstitutional because they amounted to a direction to the courts.

But in a unanimous decision handed down on Wednesday, the High Court rejected Mr Duncan’s challenge and ordered he pay costs.

A joint judgment from Chief Justice Robert French, Justice Susan Kiefel, Justice Virginia Bell and Justice Patrick Keane described Mr Duncan’s construction of the validation laws as “distinctly implausible”.

It is expected Mr Duncan will now continue with a Court of Appeal challenge to the ICAC’s 2013 corruption findings.

But Wednesday’s decision is a win for the premier.

This week Mr Baird introduced another bill to allow the ICAC to recover from the Cunneen decision, by effecting review recommendations made by a team led by former High Court chief justice Murray Gleeson and respected silk Bruce McClintock SC.

“Previous findings of corruption by ICAC should, and will, stand, despite the decision in Cunneen,” Mr Baird told AAP in a statement.

“Yesterday, I introduced legislation to implement the recommendations of the Gleeson review panel, including an expansion of the ICAC’s jurisdiction to investigate corrupt conduct by non-public officials, in strictly defined circumstances.

“We will not tolerate corruption in this state, end of story.”

That legislation – which is expected to pass parliament with Labor’s support – empowers the ICAC to investigate corruption allegations involving ordinary members of the public where their conduct could “impair public confidence in public administration”.

But that right to investigate private individuals would only be triggered in circumstances involving specific criminal acts, like collusive tendering for government contracts or fraudulently obtaining government mining leases.

Greens MP Jamie Duncan hoped Wednesday’s decision would encourage the government to go a step further by introducing statutory provisions covering misconduct, bribery and corruption in public office.

“The community will be relieved that the corrupt actions of the rich and powerful cannot be airbrushed by repeated court action. Millionaires are still subject to the laws of parliament,” Mr Parker told AAP in a statement.