ICAC rulings face new legal test

The High Court will hear a constitutional challenge today that could further test NSW’s embattled anti-corruption agency.

The High Court will hear a constitutional challenge today that could force the NSW government to consider a second round of retrospective legislation to validate the mistakes of its embattled anti-corruption agency.

Today’s challenge, which has been brought by businessman Travers Duncan, is the first in a series of events this week that will determine the extent of the powers of the NSW Independent Commission Against Corruption.

Mr Duncan is trying to strike down retrospective legislation that was rushed through the NSW parliament in May after a High Court victory by prosecutor Margaret Cunneen SC that made it clear ICAC had been exceeding its jurisdiction.

If he wins, ICAC has told the High Court that findings of corrupt conduct that it made against him and other former directors of Cascade Coal will be invalid.

The government of Premier Mike Baird would then need to decide whether it would try again to retrospectively validate ICAC’s mistakes or whether it would allow those who were adversely affected to seek declarations that the agency’s rulings had no basis in law.

The outcome of today’s challenge will affect the validity of past findings of corrupt conduct but ICAC’s own analysis suggests that relatively few findings would be vulnerable.

Before it lost the Cunneen case, ICAC told the High Court that between June 2010 and Oct­ober 2014, it had made findings of corrupt conduct against 26 people on the basis of what it then believed was the scope of its jurisdiction.

It told the court that if it lost the Cunneen case, “issues might arise as to whether some of those findings should have been made”.

The agency’s future structure and powers are expected to be decided by state cabinet based largely on a report it will consider on Friday from former High Court chief justice Murray Gleeson and barrister Bruce McClintock SC.

In response to concern about the decision to pursue Ms Cunneen, the NSW Bar Council has urged the Gleeson panel to recommend subjecting the agency to a new appeal mechanism.

On the same day, ICAC Commissioner Megan Latham will be giving evidence to a parliamentary committee that is expected to ask her about the pursuit of Ms Cunneen.

That case revealed ICAC had mistakenly believed it had the authority to examine matters in the private sector — such as lying to an honest policeman — that could affect the efficacy of public administration.

The Cunneen decision meant that this was wrong and it was limited to considering matters that could affect public sector probity — such as bribing a ­policeman.

Mr Duncan has argued that the retrospective legislation should be struck down because it does not overturn the Cunneen decision and merely gives an ­improper instruction to the ­judiciary that ICAC’s invalid actions should be considered valid.

If the Duncan challenge succeeds, the Cunneen decision would again define the agency’s past jurisdiction.