ICAC scrambling to defend its powers

Leading crown prosecutor Margaret Cunneen has shut down an ICAC investigation and left the NSW corruption watchdog scrambling to defend its powers.


In a bruising day for the commission, the Court of Appeal told the Independent Commission Against Corruption it could not proceed with its probe of the silk because it fell outside its jurisdiction.

ICAC said it would seek special leave to appeal the majority decision to the High Court as a matter of urgency as the ruling “fundamentally affects the scope of its powers to hold investigations into corrupt conduct”.

By the afternoon, ICAC said the ruling had also rocked the basis of its powers in respect to significant parts of its Operations Credo and Spicer, held earlier this year.

Operation Credo examined the Obeid-linked Australian Water Holdings while Operation Spicer’s investigations uncovered the depths of the donations scandal engulfing the NSW Liberal Party.

The ICAC probes have so far claimed high-profile Liberal scalps, including former NSW premier Barry O’Farrell and federal assistant treasurer Arthur Sinodinos.

Due to the decision on Ms Cunneen’s case, the commission says it will now hold off filing both reports which were due to be handed down in January – just two months before the NSW election on March 28.

The news comes more than a month after ICAC announced it would hold public hearings into allegations Ms Cunneen had perverted the course of justice.

She was accused of advising her son Stephen Wyllie’s girlfriend Sophia Tilley to fake chest pains at a car crash scene in a bid to avoid police officers obtaining her blood alcohol level.

Ms Cunneen, who describes the accusations as malicious, has argued ICAC was acting beyond its jurisdiction and there was no suggestion the allegations involved her conduct as a crown prosecutor.

Although Justice Clifton Hoeben rejected Ms Cunneen’s first bid to shut down the inquiry, the NSW Court of Appeal upheld her claim.

Justices John Basten and Julie Ward said the conduct alleged against Ms Cunneen did not fall within the definition of corrupt conduct in section 8 of the ICAC Act.

But Chief Justice Tom Bathurst dissented from this opinion, saying the alleged conduct could have had the potential to divert the police officer from investigating a suspected offence.

In explaining his point of view, the chief justice noted the definition of corrupt conduct contained in section 8 of the ICAC Act was “wide and in a number of respects unclear”.