Important questions remain unanswered in Margaret Cunneen case

Let's get it straight. The High Court did not dismiss ICAC's appeal in the Cunneen case on a technicality. The court found that ICAC was acting beyond its statutory charter. That is, it misunderstood its role and exceeded its jurisdiction when it decided to pursue Margaret Cunneen SC.

That said, the High Court's decision was in a sense, a technical one. With the NSW Chief Justice in the Court of Appeal Tom Bathurst and the High Court's highly regarded Justice Gageler against the majority conclusion (they would have allowed ICAC to continue its investigation) it must be acknowledged that the debate around the meaning of "corrupt conduct" in section 8 of the ICAC Act was one about which some very big brains differed.

So can ICAC be excused for getting it wrong? I don't think so. Where ICAC really went wrong was its apparent disregard of a much clearer statutory requirement about which there is very little ambiguity and which was not really tested in the High Court – namely that ICAC focus on serious and systemic corruption. In 2005 the NSW Parliament confirmed through a new section 12A, what was then well understood: that it was Parliament's intention that ICAC not conduct itself like a standing police commission and should keep its nose out of garden variety matters by focusing on serious or systemic corruption.

Never in the history of the ICAC, have the facts of a case in ICAC's sights so comprehensively failed to meet the statutory injunction in section 12A. ICAC's decision to investigate and pursue an allegation that Cunneen allegedly told her son to tell his girlfriend to fake chest pains to avoid a breathalyser test at the scene of a motor vehicle accident amounted to nothing more than a decision to investigate a lie told to a police officer. No one would condone the telling of a lie to a police officer. Nonetheless, it was the glaringly obvious triviality of the allegation that led the legal community to collectively scratch its head, that likely prompted the legal challenge to ICAC's jurisdiction, and led to the High Court being required to grapple with the more technical issue of the meaning of corrupt conduct.

On highways and byways, on footpaths, in living rooms and in interview rooms around the nation every day, good and bad people tell lies to police officers. They tell them for little and big, and good and bad reasons. They tell them to avoid serious and petty crimes. Sometimes they tell lies when they don't need to, in the heat of the moment, over a minor incident. Sometimes the lies have significant consequences. Sometimes they have none.

In the broad landscape of either criminal or corrupt conduct, the allegation against Cunneen and those with her on that fateful day is nothing short of insignificant. If she did tell her son to tell his girlfriend to tell a lie to a police officer, it occurred in the heat of the moment and it had no impact on the investigation of any crime (it turned out that the girlfriend had not been drinking in any event). The alleged criminality is so inconsequential, that in the ordinary course of events, the police would unlikely even think about pursuing it.

What led ICAC to pursue this matter? In 2005, the former Operations Review Committee – a committee established by the ICAC Act to oversee and review ICAC investigations –looked at a complaint about an employee of a statutory authority who was allegedly stealing supplies and equipment and reselling to others – an emphatically more serious allegation than the Cunneen allegation. The committee found that while the conduct might amount to corruption, it recommended that ICAC not pursue the matter as it did not fall within section 12A. That recommendation and a 2007 audit into compliance with 12A are matters on the public record which suggest strong organisational commitment by ICAC to ensuring compliance with its statutory charter when section 12A was first introduced.

Parliament has given ICAC incredibly broad powers and almost unfettered discretion to violate fundamental rights so that it can uncover corruption. This involves a very big trade-off, but in the main, and on balance, it is a good thing. At the same time, it is critical to our democratic processes and vital for the reputation of the integrity branch that investigatory bodies like ICAC are mindful at all times of their statutory boundaries.

Why on earth, given Parliament's insistence that ICAC should focus on serious or systemic corruption, was ICAC so intent on devoting scarce public resources to investigating an alleged lie told to a police officer at the scene of a motor vehicle accident?