Common Sense prevails in Cunneen v ICAC

The High Court’s recent decision in Cunneen v ICAC [2014] HCA 14 provides an interesting case study on the current state of statutory interpretation in our courts. In narrowing the definition of conduct a private citizen must engage in to enliven the Commission’s considerable investigative reach, the High Court settled on ‘relative consistency’ over ‘absolute validity’ (at [35]) in its effort to interpret the ICAC Act.

Striving for “harmony” in its task, the Court struggled to make the various provisions of the Act sing. After all, its cumbersome provisions mean it’s no Melba. But in the end, what the Court really settled upon was plain old common sense, which is always the most appealing interpretation of all.

The starting point for the Court was its often applied decision in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, which has now become somewhat the doyenne of statutory interpretation. The logic of the broad proposition stated in Blue Sky is largely self- evident:

“The primary object of statutory construction is to construe the relevant provisions so that it is consistent with the language and purpose of all the provisions of the statute.”

In its application is where the artistry arises.

The HCA was tasked with determining the meaning of “corrupt conduct” by a private individual as defined by sub-section 8(2) of the ICAC Act. The Court did this by breaking the quite cumbersome section into 2 limbs (at [7]), being conduct:

(i) “that could adversely affect” the exercise of official functions by a public official; and
(ii) “and which involves” any of the matters listed in sub-parts (a) to (y) (eg. bribery, fraud, theft and in what was the allegation ICAC wanted to investigate in this case, perverting the course of justice).

The words “adversely affect” were the point of divergence for the NSW Chief Justice and a majority of Ward and Basten JJ in the NSW Court of Appeal. Bathhurst CJ chose to give the words a more expansive definition that contemplated as corrupt any behaviour that “limits or prevents the proper performance of a public official’s function” ([2014] NSWCA 421 at [29]. This is what the High Court neatly termed the “efficacy” interpretation.

That is, such an interpretation would mean that any conduct which could affect the efficacy of the performance of a public official’s function would, for the purposes of the ICAC Act, be deemed corrupt; and thereby enliven its vast investigative powers.

However, once a light is shone upon the consequences of giving these words such a broad meaning and a few examples given, the undesirability is clear. In making this point the Court took the “efficacy” approach to its extreme (at [52]):

“… If a thief stole one of a public authority’s vehicles – say a garbage truck – the theft would qualify as corrupt conduct under s8(2)(f) because, having lost the use of the truck, the authority could be rendered less able to discharge its official function of collecting garbage.”

By choosing such a crude example, the High Court makes a strident remark.

The alternative interpretation, being the one both the majority of the NSW Court of Appeal and High Court settled upon, is the “probity” interpretation. That is, conduct of a private individual could only be corrupt for the purposes the ICAC Act if it could “adversely affect” the probity of the performance of a public official’s duties.

The Court found that the “probity” interpretation is more harmonious with the manner in which corrupt conduct is defined in sub-section 8(1), which limits the definition of “corrupt conduct’ to that which could “adversely affect” the honesty, impartiality or integrity of the public official. Therefore, in line with the objectives of “harmony” and “unity” of statutory interpretation espoused in Project Blue Sky, the Court found that the legislature is unlikely to have intended the reach of subsection 8(2) to go beyond the limits of sub-section 8(1).

Having satisfied the formal requirements of the interpretative task, the Court then said (at [53]):

“It is not likely that an Act which is avowedly directed to investigating, exposing and preventing corruption affecting public authorities – and for which the justification for the conferral of extraordinary powers on ICAC was said to be the difficulty of discovering and exposing corruption in the nature of a consensual crime of which there is no obvious victim willing to complain – should have the purpose or effect of extending the reach of ICAC to a broad array of crimes having nothing to do with corruption in public administration apart from such direct or indirect effect as they might conceivably have upon the efficaciousness of the honest and impartial exercise of official functions by public officials.”

Clearly common sense is at the heart of the Court’s judgment.

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