By Christine Henchman
Two of the arguments put to the High Court in Duncan v Independent Commission Against Corruption  HCA 32 challenging the validity of NSW legislation which added a new Part (Pt 13) to the Independent Commission Against Corruption Act 1988 (NSW) to ensure the validity of ICAC’s activities and reports prior to the High Court Cunneen decision were:
(i) that new Pt 13 offended the principle stated in Kirk v Industrial Court (NSW) (2010) 239 CLR 531 that “legislation which would take from a State Supreme Court power to grant relief on account of jurisdictional error was beyond State legislative power”.
(ii) that, in directing the courts to treat as valid that which was invalid, new Pt 13 contravened the principle in Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 by undermining the institutional integrity of the NSW Supreme Court.
In 2013, ICAC had found that the applicant, Duncan, had engaged in corrupt conduct within s 8(2) of the ICAC Act, being conduct adversely affecting the efficacy of the performance of functions by NSW public officials. Duncan unsuccessfully challenged the validity of the findings in the NSW Supreme Court and appealed to the Court of Appeal against that decision. In 2015, prior to the determination of the appeal, the High Court delivered its judgment in ICAC v Cunneen  HCA 14, holding that “corrupt conduct” within the ICAC’s investigative jurisdiction under the ICAC Act did not encompass conduct which did not adversely affect the probity, even if it adversely affects the efficacy, of the exercise of the functions of a public official. As Duncan’s conduct had not been said to affect the probity of the exercise of the public official functions, Duncan added to the grounds of his appeal the contention that the respondent lacked jurisdiction to make findings of corrupt conduct against him.
However on 6 May 2015, the NSW Parliament enacted the Independent Commission Against Corruption Amendment (Validation) Act 2015 (NSW), which added Pt 13 of Sched 4 to the ICAC Act. Pt 13 was headed “Validation relating to decision on 15 April 2015 in Independent Commission Against Corruption v Cunneen  HCA 14” and cl 34(1) provided that “in this Part: … “relevant conduct” means conduct that would be corrupt conduct … if the reference in section 8(2) to conduct that adversely affects … the exercise of official functions included conduct that adversely affects … the efficacy (but not the probity) of the exercise of official functions. Cl 35 headed “Validation” provided in brief that anything done by ICAC before 15 April 2015 that would have been validly done if corrupt conduct for the purposes of this Act included “relevant conduct” is taken to have been, and always to have been, validly done.
The applicant sought a declaration from the Court of Appeal that new Pt 13 was invalid. The applicant’s challenge was removed to the High Court. The High Court unanimously dismissed the application and ordered that so much of proceeding as was pending in the NSW Court of Appeal as concerned the additional grounds of appeal were to be dismissed.
The High Court plurality judgment
• applied the statement in AEU v General Manager of Fair Work Australia (2012) 246 CLR 117 that : “If a court exercising federal jurisdiction makes a decision which involves the formulation of a common law principle or the construction of a statute, the Parliament of the Commonwealth can, if the subject matter be within its constitutional competence, pass an enactment which changes the law as declared by the court. Moreover, such an enactment may be expressed so as to make a change in the law with deemed operation from a date prior to the date of its enactment.”
• explained that Pt 13, “properly understood, effects an alteration in the substantive law as to what constitutes corrupt conduct; it does not withdraw any jurisdiction from the Supreme Court. The Court of Appeal remains seized of the proceedings pending before it. Accordingly, Pt 13 does not contravene the Kirk principle.”
• explained: “In this way, cll 34 and 35 operate to amend s 8(2) of the ICAC Act in its application to acts done by the respondent prior to 15 April 2015. Parliament thereby changed the meaning of `corrupt conduct’, as a matter of substantive law, from the meaning given to that expression in Cunneen in respect of acts occurring before 15 April 2015. It is not to the point that cl 35 does not expressly purport to `amend’ s 8(2): it is well settled that a statute which effects an alteration of the provisions of an earlier statute amends that earlier statute even though it may not expressly describe itself as `an amending statute’.
• as to the Kable argument, said: “Decisions of this Court establish that a law of the Commonwealth to the effect of Pt 13 would not be inconsistent with Ch III of the Constitution.” In particular it was noted that cl 35 did not purport to confer any power or function upon a court. Importantly, it did not purport to give a direction to a court to treat as valid that which the legislature had left invalid.
Nettle and Gordon JJ in a separate judgment said:
“We agree with the reasons advanced by their Honours for concluding that Pt 13 … deems to be valid acts done by the respondent before 15 April 2015 to the extent that they would have been valid if corrupt conduct as defined in s 8(2) of the ICAC Act encompassed conduct which adversely affected the efficacy, but not the probity, of the exercise of official functions. We would prefer to put it upon the basis that in their legal operation cll 34 and 35 do not amend s 8(2) of the ICAC Act in its application to acts done by the respondent prior to 15 April 2015. Clauses 34 and 35 do operate to effect a change in the law. They create a new or different legal regime in which, for a prescribed period of time, the concept of corrupt conduct (as defined in s 8(2) of the ICAC Act) is taken to be expanded to encompass conduct which adversely affected, or could adversely affect, the efficacy, but not the probity, of the exercise of official functions. Clauses 34 and 35 then validate acts done during that time according to the new or different legal regime.”