ICAC, the NSW corruption watchdog, has just been handed a massive blow by the High Court

Flickr/ ssalonso

The High Court of Australia has just hammered the NSW Independent Commission Against Corruption over its plans to investigate crown prosecutor Margaret Cunneen, SC, ruling that ICAC does not have the power to conduct the inquiry.

The majority decision, by four of the five judges on the Full Bench, may lead to fresh legal action by former public officials found to have been acting corrupt in previous ICAC investigations.

The verdict upholds last year’s NSW Court of Appeal decision, which found the ICAC’s plan to investigate Cunneen fell outside the corruption watchdog’s jurisdiction.

Last year, the ICAC announced an inquiry into the senior counsel over allegations that she attempted to pervert the course of justice by telling her 26-year-old son’s girlfriend to fake chest pains to avoid a breath test after she was involved in a car accident in October 2014. The 25-year-old was tested later in hospital and is believed to have a zero reading.

The High Court’s view that the allegations against Cunneen are not “corrupt conduct” under the ICAC Act clarifies the difference between the actions of an individual as a private citizen and their behaviour in the performance of their duties as a public official.

The deputy senior prosecutor stood aside from her role as she launched legal action to fight ICAC’s power to investigate her. Cunneen has claimed that the allegations were a “malicious complaint”.

The ICAC argued that an adverse finding could hamper its ongoing investigations into illegal developer donations to political parties, which last year resulted in several Liberal MPs and ministers standing aside and/or leaving politics, including former premier Barry O’Farrell.

In a separate ruling today, the High Court turned down requests from two coal mining companies to overturn the cancellation of three exploration licences. Cascade Coal and the listed company NuCoal, lost the rights following ICAC investigations into the actions of senior Labor Party MPs, including disgraced powerbroker Eddie Obeid, which found the licences were “tainted by corruption”.

The ICAC found Obeid and former mining minister Ian Macdonald acted corruptly in granting a licence to Cascade Coal that included land in the Bylong Valley which was owned by the Obeid family.

Another corruption finding against McDonald involved an exploration licence at Doyles Creek granted to former union boss John Maitland. NuCoal obtained the licence from Maitland and has previously argued it was not a party to the corruption and should be compensated for the loss.

In January 2014, the NSW government passed laws to cancel the exploration licences. The miners challenged the laws in the High Court, which ruled unanimously that the O’Farrell government acted within its powers to cancel the rights, ending any further legal appeals.