[Legislative Council] 2R - Independent Commission Against Corruption Amendment Bill 2015

• published: 13 Oct 2015
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16 September 2015 Legislative Council, NSW Parliament 2nd Reading Speech - Independent Commission Against Corruption Amendment Bill 2015 The Hon. ADAM SEARLE (Leader of the Opposition) [11.37 a.m.]: The Labor Opposition supports the Independent Commission Against Corruption Amendment Bill 2015. On the same day in April that the High Court of Australia delivered its judgement in the Cunneen matter, the Leader of the Opposition stated: I believe the Parliament needs to consider legislating to strengthen the ICAC's powers to fight corruption. Labor wants to see a powerful statutory corruption fighter. Since that time, the Labor Opposition has worked with the Premier to ensure that the Independent Commission Against Corruption is given the legislative powers it needs to effectively combat corruption. To that end, Labor gave full support to the establishment of an independent panel to review the jurisdiction of the ICAC. That panel consisted of the former Chief Justice of the Supreme Court of this State and of the High Court of Australia, the Hon. Murray Gleeson, AC, and Mr Bruce McClintock, SC, an outstanding counsel who also conducted the statutory review of the ICAC legislation of this Parliament in 2005. The bill now before this Chamber draws on the recommendations of this panel, and the amendments to the substantive Act strengthen the powers of the Independent Commission Against Corruption [ICAC]. On 26 May 1988 in the Legislative Assembly, former Premier Nick Greiner spoke to the bill that established the institution. He said: Nothing is more destructive of democracy than a situation where the people lack confidence in those administrators and institutions that stand in a position of public trust. If a liberal and democratic society is to flourish we need to ensure that the credibility of public institutions is restored and safeguarded, and that community confidence in the integrity of public administration is preserved and justified. He went on to say: … the definition in the legislation has been framed to include everyone who is conceivably in a position of public trust. There are no exceptions and there are no exemptions. Under the leadership of Bob Carr, the establishment of this important institution was supported by the Labor Party in 1988. In our view, the ICAC has served the people of New South Wales well since that time. This bill will hopefully ensure that the ICAC continues to serve the people of this State well. The overview of the bill records the history that led to it. The legislation seeks to implement the recommendations of the panel, consisting of Murray Gleeson and Bruce McClintock. The panel resulted from a challenge to the jurisdiction of the ICAC in the now well-known case of Independent Commission Against Corruption v Cunneen. The decision focused on the meaning of section 8 (2) of the Act and on the meaning of the expression "adversely affect the exercise of the official function of any public official". The question was: Did it mean adversely affect the probity of the exercise of the function or adversely affect the efficacy of the exercise of the function? A lot depends on the approach one takes to that question. The High Court took the narrower definition rather than the more expansive definition, despite the fact that the Independent Commission Against Corruption and those who had dealings with it and the 2005 statutory review conducted by Mr McClintock all assumed that it was the wider view of the jurisdiction of the ICAC that was the correct one. It informed the way in which the ICAC conducted its business and issued its reports which have been tabled in the Parliament. In my view, there was a broad understanding of the jurisdiction of the ICAC. However, the High Court took a different view. As a matter of law, of course, the High Court is always correct. However, I prefer the view and the judgements of Chief Justice Bathurst of the Supreme Court of New South Wales in his Court of Appeal judgement and the judgement of Justice Gageler in the High Court to that of the majority of the High Court. As a matter of black letter statutory interpretation, I think the majority of the High Court engaged in what lawyers like to deride as judicial activism. They did the very thing in interpreting section 8 (2) of the Act that the balance of section 8 says you cannot do. There is a big red light saying it cannot be looked at in this way, but they did... Full transcript at http://www.parliament.nsw.gov.au/prod/parlment/HansArt.nsf/V3Key/LC20150916016?open&refNavID;=HA8_1