ICAC Act challenged in the High Court

Crown Law acted for the Attorney-General
intervening in the High Court inDuncan v ICAC (NSW) which was heard on
5 August 2015.

Mr
Duncan challenged a validation provision in the ICAC Act. The validation
provision arose from the earlier High Court decision of ICAC v Cunneen (2015)
318 ALR 391. Cunneen held that ICAC had been misinterpreting
“corrupt conduct” in the ICAC Act to include conduct that adversely affects not
only the probity but also the efficacy of the exercise of
official functions. Cunneen therefore potentially invalidated many
ICAC investigations, including one involving Mr Duncan, former Minister Ian
Macdonald, Obeid family members and others. The NSW Parliament amended
the ICAC Act to validate such investigations.  Mr Duncan argued that the validation
provision contravened the Kirk principle (2010) 239 CLR 531. 

The
Solicitor-General and Felicity Nagorcka of Crown Law’s Constitutional Law team
appeared for the Attorney-General. The Court reserved its decision.