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[2025] NSWCA 84
mixed. Leave to appeal granted; appeal allowed in part. Orders (3) and (4) of the primary judge were set aside. The Court declared that ICAC and its officer lacked authority to issue the CANs for sequences 1...
The Court of Appeal drew a distinction between two kinds of prosecution initiated by an ICAC officer. ICAC could not use an officer to start prosecutions for Crimes Act offences that arose from the conduct ICAC had investigated as possible corruption. The legislation gave ICAC investigative and reporting functions, while assigning prosecution-related consideration to the DPP and restricting what ICAC could say about prosecution in its reports. But ICAC could initiate proceedings for offences under its own Act that protected its investigative process. The Court therefore set aside the relevant Crimes Act CANs and the resulting convictions and sentences, while confirming authority to institute the ICAC Act proceedings.
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2,777 words · generated 07/10/2026
In Gamage v Riashi [2025] NSWCA 84, the NSW Court of Appeal considered whether an officer of the Independent Commission Against Corruption (ICAC) had authority to issue court attendance notices (CANs) against Don Gamage. The central point was not whether the alleged conduct occurred, but whether the officer had statutory authority to start the proceedings.
22 cited instruments linked from this judgment.
In October 2011, the officer issued 13 CANs. One was later withdrawn. Of the remaining 12 charges, nine were under the Crimes Act 1900 (NSW) and arose from conduct investigated by ICAC in 2010 as possible corrupt conduct. They included an alleged corrupt offer connected with recruitment at Woollahra Municipal Council, and alleged false statements made in seeking local-government employment. The other three charges were under the Independent Commission Against Corruption Act 1988 (NSW), concerning alleged false evidence and a false statement to an ICAC officer ([2], [8]-[9]).
The proceedings did not first come before the Local Court until 26 June 2023. The judgment says the almost 12-year interval was accounted for in large part by Gamage’s absence from Australia. He had appeared in December 2020 following arrest for a bail application. In June 2023, he challenged, among other matters, the Local Court’s jurisdiction on the basis that ICAC lacked power to commence the proceedings ([4]).
The Local Court rejected that challenge. The Supreme Court later dismissed Gamage’s appeal and judicial review application. He then sought leave to appeal to the Court of Appeal. The sole issue pursued there was whether the ICAC officer had authority to issue the CANs ([5]-[7]).
The Court of Appeal granted leave because the issue was of general public importance and remained unresolved ([11]). It divided the CANs by offence type. It held that ICAC lacked authority to issue the notices for the Crimes Act offences arising from the investigation into corrupt conduct. It held, however, that ICAC and its duly authorised officer had authority to institute proceedings for breaches of the ICAC Act ([54], [63]).
That distinction had immediate consequences. The Local Court had convicted Gamage on 9 December 2024 on the Crimes Act charges and imposed sentences. The Court of Appeal set those convictions and sentences aside ([60]-[63]). The judgment records that the ICAC Act charges remained listed for judgment in July 2025 ([60]).
The officer relied on s 14 of the Criminal Procedure Act 1986 (NSW), which provides that a prosecution for an offence under an Act may be instituted by “any person”, unless the right is expressly conferred on a specified person or class. The way proceedings could be commenced depended on the officer’s status. Under s 173, a police officer or public officer authorised under s 14 could issue and file a CAN. Under s 174, a person who was not a police or public officer had to use a CAN signed by a registrar. The notices in this case were signed by the ICAC officer, not a registrar, so the officer’s case depended on s 173 ([12]-[14]).
The officer fell within the statutory category of an employee or officer of a body declared by regulation to be a public body. ICAC had been declared such a body. But that did not resolve whether he was acting “in an official capacity”. Gamage’s argument was that prosecuting these offences had to be within ICAC’s own functions before the officer could be treated as acting officially ([15]-[16]).
The Court accepted that the s 3(3) presumption that an officer purporting to exercise a public-officer function acts in an official capacity was a presumption of fact, not a legal extension of the officer’s powers. The officer could not derive greater authority than the Commission possessed: “The powers of an individual officer cannot rise higher than the powers of the agency for which he or she purports to act” ([17]-[18]). The regulatory declaration that ICAC was a public body did not answer the separate question of the limits of its functions ([19]).
The Court then examined the ICAC Act. It found no express prosecutorial function for the type of Crimes Act offences at issue. The Act’s objects and principal functions instead focused on investigating possible corrupt conduct, communicating investigation results to appropriate authorities, and promoting changes that could reduce corruption ([26]-[28]). The statutory scheme also contemplated an opinion about whether the DPP’s advice should be sought on prosecution, rather than ICAC itself deciding to prosecute ([23], [29]).
Two provisions were particularly important. Section 13(4) restricts what ICAC may find, opine on or recommend, while s 74B prevents ICAC reports from stating that a person is guilty of an offence or recommending prosecution. The Court reasoned that these restrictions were inconsistent with implying a power for ICAC to prosecute the very conduct it had investigated as possible corrupt conduct ([28]-[29]). It also noted the scheme’s concern to distinguish an ICAC finding of corrupt conduct from a court’s determination of criminal guilt, and to avoid reputational harm or prejudice to a fair trial ([22]-[25]).
Section 19 gave ICAC power to do things “necessary” or “reasonably incidental” to exercising its functions. The Court applied the approach in Shanahan v Scott to the limits of ancillary powers: such a provision may support subsidiary means to carry out statutory purposes, but cannot be used to add different means or depart from the legislative plan ([31]-[32]). In this statutory context, prosecution for the investigated Crimes Act conduct was not necessary or reasonably incidental to investigation and reporting. Reading s 19 to authorise it would also undermine express restrictions elsewhere in the Act ([32]).
The Court found that the statutory text was reinforced by the parliamentary material it considered. The 1988 second-reading speech described ICAC as not having power to conduct prosecutions, and said matters would be forwarded to the DPP or another appropriate authority. Later parliamentary debate and the history of a proposed 2005 amendment were also considered, but the Court emphasised that parliamentary statements and past practice did not replace construction of the legislation ([33]-[40]).
The analysis differed for offences under the ICAC Act. Those offences concerned conduct directed at the Commission’s own investigative process, rather than the potentially corrupt conduct under investigation. The Court regarded prosecutions for those offences as capable of protecting the integrity of ICAC’s investigations. It held that they could fall within the incidental power in s 19, and noted that s 116 set out the relevant prosecution process ([49]-[52]). That difference explains why the result was split rather than applying a single rule to every CAN.
Before this decision, s 14 of the Criminal Procedure Act supplied a general route for commencing proceedings unless another Act expressly reserved that right to a specified person or class. ICAC was listed by regulation as a public body for the definition of “public officer”, and earlier decisions had accepted that an ICAC officer could issue CANs for offences under the ICAC Act ([14]-[15], [42]-[43]).
The judgment treated the existing authorities as involving an important distinction. In Lazarus v NSW Director of Public Prosecution [2015] NSWSC 1116 and Lazarus v Director of Public Prosecution NSW [2016] NSWCA 47, the issue concerned proceedings for offences under the ICAC Act, including false evidence. The Court of Appeal in 2016 had reasoned that the ICAC Act did not expressly restrict who could commence those proceedings, and that the relevant restrictions on ICAC’s investigative and reporting functions did not address offences under the Act itself ([42]-[44]).
The Court also considered Lazarus v Independent Commission Against Corruption (2017) 94 NSWLR 36; [2017] NSWCA 37, which concerned the validity of a legislative validation measure and a related argument about the notices. It noted that the prosecutorial-authority point had not been developed there in the same way as in Gamage ([45]).
The more direct difficulty was Lazarus v Independent Commission Against Corruption [2019] NSWCA 100. That decision had addressed challenges involving both Crimes Act and ICAC Act charges and had rejected an argument that ICAC officers lacked authority to commence proceedings. In Gamage, Basten AJA concluded that the distinction between proceedings for ICAC Act offences and proceedings arising from the subject matter of an ICAC investigation had been overlooked. The Court stated that, to the extent the 2019 decision cast doubt on its analysis of the Crimes Act charges, it should not be followed ([46]-[48]).
After Gamage, the authorities discussed in the judgment were reconciled by treating offence type and context as material. The Court affirmed the power to institute proceedings for breaches of the ICAC Act, but rejected an implied power to prosecute the Crimes Act conduct identified through an investigation into possible corrupt conduct. The disposition also set aside Gamage’s relevant convictions and sentences, rather than stopping at a declaration about the notices ([54], [61]-[63]).
The judgment does not describe any later appellate treatment of Gamage. It establishes the Court of Appeal’s position as at 30 April 2025; it does not provide a basis for stating how later courts have applied or limited it.
At [18], the Court said: “The powers of an individual officer cannot rise higher than the powers of the agency for which he or she purports to act.” In plain English, an officer’s job title or apparent official role cannot create a statutory power that the organisation itself does not have. The presumption in s 3(3) helps establish official capacity where appropriate, but does not enlarge the Commission’s statutory functions.
At [28], the Court explained that the reporting restrictions in ss 13(4) and 74B were “inconsistent with the Commission having an implied power to institute a prosecution itself.” The reasoning draws on the way the Act allocates institutional roles. ICAC investigates and reports within statutory limits; the prosecution decision is not simply an unexpressed extension of those tasks.
At [32], the Court said: “Instituting a criminal prosecution is neither necessary, nor reasonably incidental to, the functions of investigation and report.” This is the central application of s 19 to the Crimes Act charges. The Commission’s ability to do things incidental to its functions did not allow it to adopt prosecution as a further means where the statutory scheme assigned related steps to other authorities and constrained what ICAC could report.
At [51], the Court said that steps to protect the integrity of ICAC’s own investigation “may readily fall within the scope of the incidental powers” in s 19(1). This explains the contrasting result for ICAC Act offences. The Court treated interference with an investigation, or false evidence given in that process, as different in character from corruption investigated by ICAC. On this reading, pursuing an offence against the Commission’s own investigative process could support its statutory work rather than take over the prosecution of the conduct it was investigating.
The orders at [63] reflect both propositions. The Court declared the Crimes Act CANs in sequences 1 and 6-13 unauthorised and set aside the resulting convictions and sentences. Separately, it declared that ICAC and its duly authorised officer did not lack authority to institute proceedings for ICAC Act breaches.
The decision is most directly engaged where an ICAC officer issues a CAN, without a registrar’s signature, relying on the officer’s status as a public officer under ss 3, 14 and 173 of the Criminal Procedure Act. The authority question then turns on the nature of the offence and the statutory function said to support the prosecution ([13]-[18]).
The first relevant pattern is a prosecution for an offence under another Act, such as the Crimes Act, arising from the conduct ICAC investigated as possible corrupt conduct. Gamage says the existence of a general power for “any person” to institute proceedings does not finish the analysis. The officer must also be acting in an official capacity, and that depends on whether prosecution falls within ICAC’s functions. On the statutory construction adopted in this judgment, ICAC lacked that power for the investigated conduct ([28]-[34], [48], [54]).
The second pattern is a prosecution for an offence under the ICAC Act itself, concerning the Commission’s own investigative process. The judgment treats that as potentially different because such an offence may protect the integrity of an investigation and fall within ICAC’s incidental powers ([50]-[52]).
Those categories should not be collapsed merely because charges arise from a single investigation or are listed together. The Court expressly noted that the ICAC Act charges were not dependent on convictions for the Crimes Act offences, even though there was an obvious practical connection between them ([10]). The decision therefore makes the statutory source and function of each charge material.
The judgment does not decide every possible question about ICAC-related prosecutions. Its declaration concerned the specified sequences and conduct in this case, and its reasoning addresses prosecutions for investigated corrupt conduct and offences protecting ICAC’s own investigative process. The boundaries for materially different statutory schemes or factual contexts are not settled by the text provided.
The judgment identifies no decisions after 30 April 2025 and so cannot establish how later courts have treated Gamage. Its account of earlier cases is nevertheless important to understanding the holding.
The Court accepted the line of authority upholding the ability of an ICAC officer to commence proceedings for offences under the ICAC Act. It considered the 2015 Supreme Court decision and the 2016 Court of Appeal decision in the Lazarus litigation, which addressed false-evidence prosecutions under the ICAC Act ([42]-[44]). It also discussed the 2017 Court of Appeal decision, while explaining that the prosecutorial-authority issue there had been raised in a different and limited way ([45]).
By contrast, the Court expressly disapproved Lazarus [2019] NSWCA 100 to the extent it cast doubt on the conclusion that ICAC lacked authority to initiate prosecutions for offences arising from the subject matter of an investigation into possible corrupt conduct ([46]-[48]). That is a specific treatment of the earlier authority, not a rejection of every part of the Lazarus decisions. In particular, Gamage retained the distinction drawn in the earlier cases between prosecutions for offences under the ICAC Act and prosecutions concerning the subject matter of an ICAC investigation.
The Court also applied Shanahan v Scott when considering the limits of incidental or ancillary powers. It used that principle to resist treating s 19 as a means of expanding the statutory purposes or departing from the plan established by the ICAC Act ([31]-[32]). The judgment discussed Balog v ICAC in the context of the Commission’s limits on reporting findings of criminal guilt and the legislative changes that followed ([35]-[38]).
The decision resolves the authority issue for the two categories of proceedings before it, but leaves questions about how its reasoning applies beyond that context. One question is how to classify a prosecution where the alleged offence is connected to an ICAC investigation but is not itself the conduct investigated as corrupt. The judgment distinguishes offences arising from the subject matter of an investigation from offences protecting the investigative process, but does not provide a comprehensive test for every boundary case ([48]-[52]).
Another question concerns the relationship between s 19 and other express powers or procedural provisions in the ICAC Act. The Court held that s 19 could support proceedings for breaches of the ICAC Act, referring to s 116, while holding it could not support prosecutions for the investigated Crimes Act conduct. The reasoning depends on statutory purpose, structure and the constraints on reporting; it is not a general conclusion that incidental powers either always or never support prosecutions ([30]-[34], [49]-[52]).
A further issue is the effect of any later statutory amendments. The judgment notes a post-2011 amendment to the Criminal Procedure Act requiring prior DPP permission for an ICAC officer to commence proceedings, and observes that the relevant regulatory and statutory provisions would have work to do in relation to the ICAC Act prosecutions ([53]). The judgment’s orders address notices issued in 2011. The text does not determine the application of later provisions to every future prosecution.
Finally, the judgment’s discussion of parliamentary materials and historical practice may prompt questions about how those materials are to be used where statutory text is said to be uncertain. The Court treated the 1988 speeches as consistent with its reading, while holding that acknowledged practice alone could not determine the proper construction of the Act ([33]-[40]). It did not purport to settle every question about the significance of subsequent parliamentary statements or administrative practice.
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on, relying on, or using this analysis, have it checked by a qualified Australian lawyer.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Gamage v Riashi [2025] NSWCA 84
Hearing dates: 4 April 2025
Date of orders: 30 April 2025
Decision date: 30 April 2025
Before: Leeming JA at [1];
Basten AJA at [2];
Griffiths AJA at [64]
Decision: (1) Grant the applicant leave to appeal from the judgment and orders in the Common Law Division of 8 August 2024.
(2) Direct the applicant to file a notice of appeal in the terms of the amended draft notice of appeal within 7 days.
(3) Set aside orders (3) and (4) made by the primary judge on 8 August 2024.
(4) Declare that, the Independent Commission Against Corruption having no power to prosecute for matters the subject of an investigation by it into corrupt conduct involving the applicant, neither the Commission nor an officer of the Commission had authority to issue the court attendance notices in relation to sequences 1 and 6-13 in October 2011.
(5) Set aside the convictions entered in the Local Court on 9 December 2024 and the sentences consequent upon those convictions.
(6) Declare that the Independent Commission Against Corruption, and its duly authorised officer, did not lack authority to institute proceedings for breaches of the Independent Commission Against Corruption Act 1988 (NSW).
Catchwords: ADMINISTRATIVE LAW – powers of public authority – power to commence legal proceedings – court attendance notices issued by officer of Independent Commission Against Corruption – notices not signed by registrar – officer acting as “public officer” within s 3(1) of the Criminal Procedure Act 1986 (NSW) – whether officer acting in an “official capacity” – whether powers and functions of Commission extend to laying charges under the Crimes Act 1900 (NSW) for matters the subject of investigation into corrupt conduct – whether power and functions of Commission extend to laying charges for breaches of the Independent Commission Against Corruption Act 1988 (NSW)
STATUTORY INTERPRETATION – implied powers and functions of public body – powers necessary or reasonably incidental to the exercise of functions and powers – legislation to be read harmoniously
Legislation Cited: Criminal Procedure Act 1986 (NSW), ss 3, 14, 172, 173, 174
Independent Commission Against Corruption Act 1988 (NSW), ss 2A, 8, 9, 12, 13, 14, 19, 74, 74A, 74B, 99, 116
Cases Cited: AQO v Minister for Finance and Services (2016) 93 NSWLR 46; [2016] NSWCA 248
Balog v Independent Commission against Corruption (1990) 169 CLR 625; [1990] HCA 28
Deputy Commissioner of Taxes (SA) v Elder’s Trustee and Executor Co Ltd (1936) 57 CLR 610; [1936] HCA 64
Lazarus v Director of Public Prosecution NSW [2016] NSWCA 47
Lazarus v Independent Commission Against Corruption [2019] NSWCA 100
Lazarus v Independent Commission Against Corruption (2017) 94 NSWLR 36; [2017] NSWCA 37
Lazarus v NSW Director of Public Prosecution [2015] NSWSC 1116
Masson v Parsons (2019) 266 CLR 554; [2019] HCA 21
Shanahan v Scott (1957) 96 CLR 245, 250; [1957] HCA 4
Texts Cited: NSW Legislative Assembly, Parliamentary Debates (Hansard), 21 November 1990
NSW Legislative Assembly, Parliamentary Debates (Hansard), 26 May 1988
NSW Legislative Council, Parliamentary Debates (Hansard), 6 April 2005
P Herzfeld and T Prince, Interpretation (3rd ed, 2024, Thomson Reuters)
Category: Principal judgment
Parties: Don Gamage (Applicant)
Michael Riashi (First Respondent)
Independent Commission Against Corruption (Second Respondent)
Director of Public Prosecutions (Third Respondent)
Representation: Counsel:
M Karam / H Rogers (Applicant)
J Davidson (Respondents)
Solicitors:
C Farah, Farahs Legal (Applicant)
K Smith, Crown Solicitor’s Office (NSW) (Respondents)
File Number(s): 2024/00324247
Publication restriction: Nil
HEADNOTE
[This headnote is not to be read as part of the judgment]
In October 2011, the respondent, an officer of the Independent Commission Against Corruption (Commission), issued 13 court attendance notices (CANs) alleging offences committed by the applicant. One was withdrawn; of the remaining 12, nine involved offences under the Crimes Act 1900 (NSW) and related to conduct which had been the subject of an investigation by the Commission into corrupt conduct. The other three involved offences under the Independent Commission Against Corruption Act 1988 (NSW) (ICAC Act).
The charges first came before the Local Court on 26 June 2023, the delay being the result of the applicant’s absence from the country. The applicant sought to vacate the hearing of the charges on numerous grounds, one being a challenge to the jurisdiction of the Local Court, based upon the asserted lack of power of the respondent to commence criminal proceedings. The Local Court and, on appeal, the Supreme Court, rejected the applicant’s challenge.
The sole issue raised on the application for leave to appeal to this Court was whether the officer of the Commission had power to issue the court attendance notices. The respondent claimed his authority derived from s 14 of the Criminal Procedure Act 1986 (NSW) which allows “any person” to institute criminal proceedings under an Act unless the right to institute the proceeding is expressly conferred by that Act on a specified person or class of person.
The Court held (Basten AJA, Leeming JA and Griffiths AJA agreeing), granting leave to appeal and upholding the appeal in part:
(1) The applicant’s application raised issues of general public importance which remain unresolved. Accordingly, leave to appeal should be granted: [11].
(2) None of the CANs being signed by a Local Court registrar, the respondent could only validly have commenced the proceedings as a “public officer” under s 173 of the Criminal Procedure Act in accordance with the general power provided by s 14. The respondent fell within the definition of “public officer” in s 3(1) of that Act if he were an officer of a body declared by the regulations to be a public body for the purposes of s 3(1)(f) and “acting in an official capacity”. The Commission was declared to be a public body for that purpose in 2004: [13]-[16].
(3) The respondent was “acting in an official capacity” only if it were within the powers and functions of the Commission to prosecute for offences. The presumption that a public officer acts in an official capacity (in s 3(3) of the Act) is one of fact, not of law, and does not operate where the functions of the declared public body do not extend to the institution of criminal proceedings: [18].
(4) The ICAC Act does not expressly confer on the ICAC a function or power of prosecuting criminal proceedings. The objects and principal functions of the Commission are to investigate, communicate to appropriate authorities about, and take steps to limit opportunities for, corrupt conduct. Sections 13(4) and 74B, precluding the Commission including in a report a finding of guilt or a statement “recommending prosecution”, or even forming an opinion as to such matters, are inconsistent with the Commission having an implied power to institute a prosecution: [20], [28]-[29].
(5) Section 19 of the ICAC Act, providing for incidental powers of the Commission, does not provide further means for carrying into effect its functions, where the means have been identified in detail and are subject to carefully drafted constraints. Instituting a criminal prosecution is neither necessary, nor reasonably incidental to, the functions of investigation and report. The extrinsic material supports the conclusion that the Commission does not have the power to prosecute for corrupt conduct: [31]-[34].
Shanahan v Scott (1957) 96 CLR 245, 250; [1957] HCA 4, applied.
(6) The issue of the CANs for offences under the Crimes Act, being offences arising from the investigation of corrupt conduct on the part of the applicant, was invalid. To the extent that Lazarus v Independent Commission Against Corruption [2019] casts doubt on that conclusion, it should not be followed: [47].
Lazarus v Independent Commission Against Corruption [2019] NSWCA 100; 367 ALR 274, disapproved.
(6) Offences created by the ICAC Act are protective of the integrity of the investigative process of the Commission. Steps taken to protect the integrity of its own investigation fall within the scope of the incidental powers conferred by s 19(1) of the ICAC Act, as necessary for or reasonably incidental to the exercise of its functions. The issue of the three CANs against the applicant alleging breaches of the ICAC Act was valid: [41]-[45], [50].
Lazarus v NSW Director of Public Prosecution [2015] NSWSC 1116; Lazarus v NSW Director of Public Prosecution [2016] NSWCA 47; Lazarus v Independent Commission Against Corruption (2017) 94 NSWLR 36; [2017] NSWCA 37, considered.
LEEMING JA: I agree with Basten AJA.
BASTEN AJA: In October 2011, the respondent, an officer with the Independent Commission Against Corruption (Commission or ICAC), issued thirteen court attendance notices (CANs) alleging offences committed by the applicant. One was later withdrawn; of the remaining twelve charges, nine involved offences under the Crimes Act 19**00 (NSW) and related to conduct which had been the subject of an investigation by the Commission. The other three charges involved offences under the Independent Commission Against Corruption Act 1988 (NSW) (ICAC Act).
The sole issue raised on the application for leave to appeal to this Court is whether an officer of the Commission had power to lay information in respect of the offences. As explained below, there should be a grant of leave to appeal and the appeal allowed in part.
The charges first came before the Local Court on 26 June 2023. The period of almost 12 years between the issue of the CANs and the first hearing was accounted for, in large part, by the absence of the applicant from the country. His first appearance before the Local Court was in December 2020 following his arrest and was an application for bail. At a hearing in the Local Court on 26 June 2023 the applicant sought to vacate the dates fixed for the hearing of the charges. That application involved numerous grounds, one of which was a challenge to the jurisdiction of the Local Court, based upon the asserted lack of power of the Commission to commence criminal proceedings. [1] It appears that the applicant had attempted to raise the issue as a preliminary matter in earlier proceedings in the Supreme Court and had been advised by Rothman J that the matter should be dealt with first in the Local Court. [2]
On 26 June 2023 Magistrate Thomas dismissed the relevant challenge in the following terms: [3]
“Grounds 1 and 2, which deal with the question of the power to prosecute. It is clear to me on a reading of the material and a reading of the submissions by the Director that the proceedings are well founded and are able to be commenced in the way that they were commenced and the way in which they are now prosecuted by the Office of the Director of Public Prosecutions.”
The Magistrate also dismissed other grounds of challenge to the proceedings, an application for the stay, and an application to issue subpoenas. The applicant challenged the orders of the Magistrate in the Common Law Division, by commencing an appeal pursuant to s 53 of the Crimes *(*Appeal and Review) Act 2001 (NSW) and by seeking judicial review in the supervisory jurisdiction of the Court, pursuant to s 69 of the Supreme Court Act 1970 (NSW). On 8 August 2024, Rothman J granted the applicant leave to appeal on limited grounds, but dismissed both the appeal and the summons seeking judicial review. [4]
On 6 November 2024 the applicant filed a summons in this Court seeking leave to appeal. The only ground identified in a draft notice of appeal was that the primary judge erred in deciding that the respondent, an officer with the Commission, had the power to prosecute the applicant. That is the sole issue before this Court for a concurrent hearing of the application for leave and, if granted, the appeal.
As has been noted, there were twelve CANs, which fall into two categories. The first category involves offences which, it is common ground, arose from the investigation into corrupt conduct carried out by the Commission in 2010. The Commission made findings of corrupt conduct against the applicant and stated an opinion that the advice of the Director of Public Prosecutions (DPP) be sought with respect to the prosecution of the applicant for various offences. The offences are: (i) an offence of corruptly offering a benefit in relation to a pending recruitment at Woollahra Municipal Council (sequence 1); (ii) seven offences of making a false statement with intent to obtain an advantage, under s 178BB of the Crimes Act, each statement being made in seeking employment with a local government authority (sequences 6 – 12), and (iii) an offence of making a false statement with intent to obtain an advantage, charged under s 192G of the Crimes Act (sequence 13). The last offence was relevantly identical to the earlier offences, but involved conduct which occurred after the repeal of s 178BB.
The second category of offences involved two charges of giving false evidence, laid under s 87(1) of the ICAC Act (sequences 2 and 3), and one of making a false statement to an officer, laid under s 80(c) of the ICAC Act.
For reasons set out below, the applicant’s submissions that an officer of the Commission has no power to commence proceedings for offences arising out of an investigation into corrupt conduct should be upheld. However, an officer does have power to lay an information in relation to any consequential offending under the ICAC Act. Whilst there is an obvious connection between the Commission’s findings in the course of its investigation and the charges of making false statements to it or its officers, the latter charges are not dependent upon convictions under the Crimes Act. No doubt, as a practical matter, the charges would be listed together.
The issues raised by the applicant are of general public importance. Although, as will appear, there has been at least one opportunity for the issues to be considered in the past, they were not expressly addressed and remain unresolved. There should be a grant of leave to appeal.
14 Common informer (cf Fines and Penalties Act 1901 sec 4)
A prosecution or proceeding in respect of any offence under an Act may be instituted by any person unless the right to institute the prosecution or proceeding is expressly conferred by that Act on a specified person or class of persons.
The respondent noted that none of the offences the subject of the CANs was one with respect to which an Act expressly conferred the right to institute proceedings on a specified person or class of persons which did not include him. Indeed, there was no such Act.
172 Commencement of proceedings by court attendance notice
(1) Proceedings for an offence are to be commenced in a court by the issue and filing of a court attendance notice in accordance with this Division.
(2) A court attendance notice may be issued in respect of a person if the person has committed or is suspected of having committed an offence.
(3) A court attendance notice may be issued in respect of any offence for which proceedings may be taken in this State, including an offence committed elsewhere than in this State.
173 Commencement of proceedings by police officer or public officer
If a police officer or public officer is authorised under section 14 of this Act or under any other law to commence proceedings for an offence against a person, the officer may commence the proceedings by issuing a court attendance notice and filing the notice in accordance with this Division.
174 Commencement of private prosecutions
(1) If a person other than a police officer or public officer is authorised under section 14 of this Act or under any other law to commence proceedings for an offence against a person, the person may commence the proceedings by issuing a court attendance notice, signed by a registrar, and filing the notice in accordance with this Division.
…
public officer means any of the following persons, if acting in an official capacity:
(a) an employee in the Public Service or the Police Service,
(b) an officer or employee of a statutory body representing the Crown,
…
(e) the Director of Public Prosecutions, Deputy Director of Public Prosecutions or Solicitor for Public Prosecutions,
(f) an officer or employee of a body declared by the regulations to be a public body for the purposes of this definition.
The respondent relied upon his position as an officer or employee of a body declared by the regulations to be a public body for the purposes of the definition, as provided in par (f). He noted that the Criminal Procedure Regulation 2000 (NSW) had been amended in 2004, some years before the issue of the CANs, to include the Commission as a public body for the purposes of par (f). Not only did the Regulation provide the relevant authority, but further, in the respondent’s contention, it recognised that officers of the Commission could indeed commence criminal prosecutions. At the time the CANs were issued, cl 101(1)(a) of the Criminal Procedure Regulation 2010 (NSW) declared the Commission to be a public body for the purposes of s 3(1)(f). [6]
The appellant did not take issue with this aspect of the respondent’s case; rather he submitted that the respondent could only fall within the definition in s 3(1) of the Criminal Procedure Act if he were “acting in an official capacity”. He could not satisfy that requirement unless the institution of prosecutions for criminal offences fell with the functions and powers of the Commission itself.
The respondent contended that, as he was at least purporting to exercise a function as a public officer, he was then “presumed to be acting in an official capacity”, pursuant to s 3(3) of the Criminal Procedure Act, which states:
3 Definitions
…
(3) In the absence of evidence to the contrary, a person specified in paragraphs (a)–(f) of the definition of public officer who purports to exercise a function as a public officer under this Act is presumed to be acting in an official capacity.
The initial qualification to the presumption (“[i]n the absence of evidence to the contrary”) indicates that the presumption is one of fact, rather than law. Thus, the existence of an appropriate delegation, if delegation were required, is to be presumed. The presumption does not operate in circumstances where the “official capacity” does not extend to the institution of criminal proceedings because the agency does not have such a function. The powers of an individual officer cannot rise higher than the powers of the agency for which he or she purports to act.
The question, therefore, remains as to the scope of the functions and powers of the Commission. While it is true that the naming of the Commission in the Regulation indicates a belief on the part of the Attorney General of the day, who promoted the amendment to the Regulation in 2004, that the Commission could prosecute for offences, that does not avoid the obligation of this Court to consider whether, as a matter of statutory construction, that belief was correct.
The relevant provisions of the ICAC Act do not contain any express function or power involving prosecution of criminal offences. The question is therefore whether such a function or power can be inferred from the statutory context. Before noting the key provisions, of which there are a number, two preliminary observations should be made. The first is that the boundaries of the Commission’s functions have not proved easy to fix with precision. Cases determining some aspect of the boundaries have on occasion been followed by amendments. Elements of uncertainty remain.
Secondly, the fact that a finding of corrupt conduct is often dependent upon the Commission being satisfied as to a relevant criminal offence, in combination with the need to maintain the boundary between opinions formed by the Commission and the establishment of a criminal offence by the only arm of government capable of making such a finding, namely a court with criminal jurisdiction, means that the boundary has been hard to settle. It is convenient to start with some explication of this point. [7]
Section 8 of the ICAC Act contains a lengthy definition of “corrupt conduct”. At the risk of oversimplification, s 8(1) provides as part of the definition of corrupt conduct any conduct that adversely affects “the honest or impartial” exercise of official functions. Section 8(2) omits the words “honest or impartial” but includes some 25 categories of misconduct, all, or almost all, of which are criminal offences. Section 9(1) then qualifies the operation of s 8 to exclude conduct from the definition of corrupt conduct “unless it could constitute or involve … a criminal offence”, or a disciplinary offence, or reasonable grounds for dismissing a public official. Relevantly, the conduct of the applicant could not be corrupt conduct unless it “could constitute or involve” a criminal offence. Section 9 further provides:
9 Limitation on nature of corrupt conduct
…
(5) Without otherwise limiting the matters that it can under section 74A (1) include in a report under section 74, the Commission is not authorised to include a finding or opinion that a specified person has, by engaging in conduct of a kind referred to in subsection (4), engaged in corrupt conduct, unless the Commission is satisfied that the conduct constitutes a breach of a law (apart from this Act) and the Commission identifies that law in the report.
74A Content of reports to Parliament
(1) The Commission is authorised to include in a report under section 74:
(a) statements as to any of its findings, opinions and recommendations, and
(b) statements as to the Commission’s reasons for any of its findings, opinions and recommendations.
(2) The report must include, in respect of each “affected” person, a statement as to whether or not in all the circumstances the Commission is of the opinion that consideration should be given to the following:
(a) obtaining the advice of the Director of Public Prosecutions with respect to the prosecution of the person for a specified criminal offence,
…
74B Report not to include findings etc of guilt or recommending prosecution
(1) The Commission is not authorised to include in a report under section 74 a statement as to:
(a) a finding or opinion that a specified person is guilty of or has committed, is committing or is about to commit a criminal offence or disciplinary offence (whether or not a specified criminal offence or disciplinary offence), or
(b) a recommendation that a specified person be, or an opinion that a specified person should be, prosecuted for a criminal offence or disciplinary offence (whether or not a specified criminal offence or disciplinary offence).
(2) A finding or opinion that a person has engaged, is engaging or is about to engage:
(a) in corrupt conduct (whether or not specified corrupt conduct), or
(b) in specified conduct (being conduct that constitutes or involves or could constitute or involve corrupt conduct),
is not a finding or opinion that the person is guilty of or has committed, is committing or is about to commit a criminal offence or disciplinary offence.
…
Section 9 having required that to be corrupt, conduct must be such as “could constitute or involve” a criminal offence, a matter as to which the Commission must be satisfied, these provisions attempt to limit the possibility that members of the public will conclude from a finding of corrupt conduct that the person is guilty of a criminal offence, or has even been convicted of an offence. To give such an impression risks damaging the affected person’s reputation and may put in jeopardy a fair trial if a jury trial were to take place.
The relevance of this material for the present purposes is not to resolve issues as to the balancing exercise which can or should be undertaken in preparing a report, but rather to indicate a degree of inconsistency between the limitation imposed on the Commission’s reporting function and the precondition for the commencement of criminal proceedings, namely an opinion that, if a jury were to accept the admissible evidence against the affected person, it would be reasonably open to them to convict.
The scope of the identified powers and functions may be guided by the overarching principles identified in Pt 4, which commences with Div 1 “Functions generally”. Although detailed and lengthy, it is necessary to set out the relevant provisions:
12 Public interest to be paramount
In exercising its functions, the Commission shall regard the protection of the public interest and the prevention of breaches of public trust as its paramount concerns.
…
13 Principal functions
(1) The principal functions of the Commission are as follows:
(a) to investigate any allegation or complaint that, or any circumstances which in the Commission’s opinion imply that:
(i) corrupt conduct, or
(ii) conduct liable to allow, encourage or cause the occurrence of corrupt conduct, or
(iii) conduct connected with corrupt conduct,
may have occurred, may be occurring or may be about to occur,
…
(c) to communicate to appropriate authorities the results of its investigations,
(d) to examine the laws governing, and the practices and procedures of, public authorities and public officials, in order to facilitate the discovery of corrupt conduct and to secure the revision of methods of work or procedures which, in the opinion of the Commission, may be conducive to corrupt conduct,
(e) to instruct, advise and assist any public authority, public official or other person (on the request of the authority, official or person) on ways in which corrupt conduct may be eliminated and the integrity and good repute of public administration promoted,
(f) to advise public authorities or public officials of changes in practices or procedures compatible with the effective exercise of their functions that the Commission thinks necessary to reduce the likelihood of the occurrence of corrupt conduct and to promote the integrity and good repute of public administration,
(g) to co-operate with public authorities and public officials in reviewing laws, practices and procedures with a view to reducing the likelihood of the occurrence of corrupt conduct and to promoting the integrity and good repute of public administration,
(h) to educate and advise public authorities, public officials and the community on strategies to combat corrupt conduct and to promote the integrity and good repute of public administration,
(i) to educate and disseminate information to the public on the detrimental effects of corrupt conduct and on the importance of maintaining the integrity and good repute of public administration,
(j) to enlist and foster public support in combating corrupt conduct and in promoting the integrity and good repute of public administration,
(k) to develop, arrange, supervise, participate in or conduct such educational or advisory programs as may be described in a reference made to the Commission by both Houses of Parliament.
…
(2) The Commission is to conduct its investigations with a view to determining:
(a) whether any corrupt conduct, or any other conduct referred to in subsection (1)(a), has occurred, is occurring or is about to occur, and
(b) whether any laws governing any public authority or public official need to be changed for the purpose of reducing the likelihood of the occurrence of corrupt conduct, and
(c) whether any methods of work, practices or procedures of any public authority or public official did or could allow, encourage or cause the occurrence of corrupt conduct.
(2A) Subsection (2)(a) does not require the Commission to make a finding, on the basis of any investigation, that corrupt conduct, or other conduct, has occurred, is occurring or is about to occur.
(3) The principal functions of the Commission also include:
(a) the power to make findings and form opinions, on the basis of the results of its investigations, in respect of any conduct, circumstances or events with which its investigations are concerned, whether or not the findings or opinions relate to corrupt conduct, and
(b) the power to formulate recommendations for the taking of action that the Commission considers should be taken in relation to its findings or opinions or the results of its investigations.
(3A) The Commission may make a finding that a person has engaged or is engaging in corrupt conduct of a kind described in paragraph (a), (b), (c) or (d) of section 9(1) only if satisfied that a person has engaged in or is engaging in conduct that constitutes or involves an offence or thing of the kind described in that paragraph.
(4) The Commission is not to make a finding, form an opinion or formulate a recommendation which section 74B or 74BA prevents the Commission from including in a report, but section 9(5) and this section are the only restrictions imposed by this Act on the Commission’s powers under subsection (3).
(5) The following are examples of the findings and opinions permissible under subsection (3) but do not limit the Commission’s power to make findings and form opinions:
(a) findings that particular persons have engaged, are engaged or are about to engage in corrupt conduct,
(b) opinions as to:
(i) whether the advice of the Director of Public Prosecutions should be sought in relation to the commencement of proceedings against particular persons for criminal offences against laws of the State, or
(ii) whether consideration should or should not be given to the taking of other action against particular persons,
(c) findings of fact.
14 Other functions of Commission
(1) Other functions of the Commission are as follows:
(a) to gather and assemble, during or after the discontinuance or completion of its investigations, evidence that may be admissible in the prosecution of a person for a criminal offence against a law of the State in connection with corrupt conduct and to furnish such evidence to the Director of Public Prosecutions,
…
…
(2) If the Commission obtains any information in the course of its investigations relating to the exercise of the functions of a public authority, the Commission may, if it considers it desirable to do so:
(a) furnish the information or a report on the information to the authority or to the Minister for the authority, and
(b) make to the authority or the Minister for the authority such recommendations (if any) relating to the exercise of the functions of the authority as the Commission considers appropriate.
…
2A Principal objects of Act
The principal objects of this Act are:
(a) to promote the integrity and accountability of public administration by constituting an Independent Commission Against Corruption as an independent and accountable body:
(i) to investigate, expose and prevent corruption involving or affecting public authorities and public officials, and
(ii) to educate public authorities, public officials and members of the public about corruption and its detrimental effects on public administration and on the community, and
(b) to confer on the Commission special powers to inquire into allegations of corruption.
There is, self-evidently, no express conferral of a function or power to institute criminal proceedings. In short, both the legislative objects and the principal functions of the Commission are to investigate, communicate to appropriate authorities about, and to take steps to limit opportunities for, corrupt conduct. The terms of ss 13(4) and 74B, precluding the Commission including in a report a finding of guilt or a statement “recommending prosecution”, or even forming an opinion as to such matters, are inconsistent with the Commission having an implied power to institute a prosecution itself.
That point is emphasised by the fact that the prohibition on recommending prosecution appears not only in the section dealing with “principal functions”, but also in Pt 8 dealing with reports prepared following an investigation. Section 74B(1)(b) states that the Commission is “not authorised” to include a recommendation that a specified person should be prosecuted. Further, the requirement that the report “must include” an opinion as to whether or not “consideration should be given to … obtaining the advice of the [DPP] with respect to the prosecution of the person for a specified criminal offence”, reveals an express expectation that the decision to prosecute or not prosecute will be made by the DPP and not the Commission. Of course, it remains possible that the Commission, having received advice that a prosecution is appropriate, could then initiate a prosecution. Nevertheless, these provisions, read as a whole, are inconsistent with the implication of a power to prosecute, at least in relation to conduct which has been a subject of an investigation to determine whether it constitutes “corrupt conduct”.
It remains to note the terms of s 19:
19 Incidental powers
(1) The Commission has power to do all things necessary to be done for or in connection with, or reasonably incidental to, the exercise of its functions, and any specific powers conferred on the Commission by this Act shall not be taken to limit by implication the generality of this section.
(2) The Commission or an officer of the Commission may seek the issue of a warrant under the Surveillance Devices Act 2007.
“The result is to show that such a power does not enable the authority by regulations to extend the scope or general operation of the enactment but is strictly ancillary. It will authorise the provision of subsidiary means of carrying into effect what is enacted in the statute itself and will cover what is incidental to the execution of its specific provisions. But such a power will not support attempts to widen the purposes of the Act, to add new and different means of carrying them out or to depart from or vary the plan which the legislature has adopted to attain its ends.”
In some circumstances, the inclusion of such a provision in a statute may expand the means the legislature has provided, but it is unlikely to affect the purposes of the statute. Indeed, it will not provide further means for carrying the purposes into effect, where the means have been identified in detail and are subject to carefully drafted constraints. The expression of the powers in s 19, as “necessary” or “reasonably incidental to” the exercise of the stated functions and specific powers conferred on the Commission, is consistent with the principle articulated in Shanahan v Scott. Instituting a criminal prosecution is neither necessary, nor reasonably incidental to, the functions of investigation and report. Section 19 cannot be read in a manner which undermines the express constraints on the opinions which may be expressed in a report, discussed above. The power to prosecute for corrupt conduct cannot be found within the language or purpose of s 19, read harmoniously with the rest of the ICAC Act.
The conclusion that the Commission does not have power to prosecute for the corrupt conduct it has investigated is consistent with the following statement of Premier Greiner, in his second reading speech for the 1988 ICAC bill: [9]
“The third fundamental point I want to make is that the independent commission will not be a crime commission. Its charter is not to investigate crime generally. The commission has a very specific purpose which is to prevent corruption and enhance integrity in the public sector…
Honourable Members will note that the bill makes specific provisions to allow the commission to refer matters to other investigatory agencies to be dealt with. Obviously, that will be the most sensible way to deal with the majority of matters that will come to the attention of the commission. The commission will monitor those investigations and will retain the most significant allegations of corruption.
My fourth point is that the independent commission is not a purely investigatory body. The commission has also a clear charter to play a constructive role in developing sound management practices and making public officials more aware of what it means to hold an office of public trust and more aware of the detrimental effects of corrupt practices. … In preventing corruption in the long term, the educative and consultancy functions of the commission will be far more important than its investigatory functions.”
In short, there was no reference to any prosecutorial function. Rather, later in his speech the Premier stated: [10]
“The proposed Independent Commission Against Corruption will not have power to conduct prosecutions for criminal offences or disciplinary offences, or to take action to dismiss public officials. Where the commission reaches the conclusion that corrupt conduct has occurred, it will forward its conclusion and evidence to the Director of Public Prosecutions, department head, a Minister or whoever is the appropriate person to consider action.”
The legislative intention could not have been more clearly stated: it was consistent with the text of the legislation set out above.
In June 1990, the High Court handed down judgment in Balog v Independent Commission against Corruption. [11] Mr Balog was the managing director of a land development company. The Commission investigated whether he was involved in corrupt conduct in relation to a development application before Waverley Municipal Council. At that time, s 74(5) and (6) of the ICAC Act provided:
(5) A report may include a statement of the Commission's findings as to whether there is or was any evidence or sufficient evidence warranting consideration of –
(a) the prosecution of a specified person for a specified offence; or
…
(6) A report shall include such a statement in relation to the persons substantially and directly interested in the subject-matter of the investigation concerned or persons named in the reference made by both Houses of Parliament.
“At least in theory there may be a fine line between making a finding and merely reporting the results of an investigation. But in practice the line should not be difficult to draw. It is clear enough that there is a distinction between the revelation of material which may support a finding of corrupt conduct or the commission of an offence and the actual expression of a finding that the material may or does establish those matters…
…
Although the pernicious practices at which the Act is aimed no doubt call for strong measures, it is obvious that the Commission is invested with considerable coercive powers which may be exercised in disregard of basic protections otherwise afforded by the common law. Were the functions of the Commission to extend to the making of findings, which are bound to become public, that an individual was or may have been guilty of corrupt or criminal conduct, there would plainly be a risk of damage to that person's reputation and of prejudice in any criminal proceedings which might follow.”
The Court made the declaration that the Commission was “not entitled in any report … to include a statement of any finding by it that the respective appellants or either of them was or might have been guilty of a criminal offence or corrupt conduct other than the statement made pursuant to s 74(5) of that Act”.
“The commission has a charter to investigate corruption. It was not set up to investigate crime generally. Obviously, however, there will be cases where the corrupt conduct concerned involves criminal activity. In the area where corrupt conduct overlaps with criminal activity the commission will only be able to reach conclusions regarding the corrupt aspect of the person’s behaviour. It is not for the commission to determine criminality. Nor is it the commission’s role to conduct prosecutions for criminal or disciplinary offences. The Director of Public Prosecutions and other authorities are charged with that responsibility and the commission should not be able to pre-empt the decisions of those authorities to prosecute or not to prosecute. The bill therefore makes it clear that the commission does not have power to recommend prosecution. At most the commission will be able to state its opinion as to whether or not consideration should be given to prosecution for a criminal or disciplinary offence.”
This was a strong statement denying the Commission’s role in conducting prosecutions for criminal offences. It would be remarkable if, in using the word “conduct”, the Attorney had been deliberately evading the question as to whether the Commission’s functions extended to initiating proceedings. The Government’s intentions should not be so understood.
There are, it may be accepted, statements by later Attorneys in the course of parliamentary debates as to “the practice” of the Commission to commence criminal prosecutions arising from its investigation, but that the DPP then takes over the carriage of the prosecution. Such a statement was made in relation to a proposed amendment to the ICAC Act in 2005, seeking to insert a new s 116A, the effect of which would have been to require the Commission to obtain the approval of the DPP before commencing proceedings. [14] The extent and nature of the “practice” referred to by the Minister in 2005 is not known, but in the absence of any judicial determination as to whether or not the practice was valid, the mere existence of the practice, recognized by the Minister, cannot affect the proper construction of the legislation. Even had the amendment been passed, it would not have affected the construction of the pre-amendment statute, except possibly to resolve ambiguity. [15]
However, as the applicant noted, the proposed new s 116A of the ICAC Act, was omitted as a result of an amendment made in a Legislative Council on 6 April 2005. Opposing the amendment, the Leader of the Opposition asserted that the amendment would see the Commission “moving away from its role as an investigative body to that of the prosecutorial body”. He further stated that, in the view of the Coalition, “it was not the intention of those who drafted the ICAC legislation, nor should it be the practice … to provide oversight of the state”. [16] He later reiterated his concern that “prosecutorial powers [were to be] given to the body with inquisitorial powers and the power to force people to answer questions”. [17] In April 2005, the majority of members of the Legislative Council did not believe that the Commission had or should have powers to initiate prosecutions. The proposed s 116A was not enacted.
Only one decision in this Court has expressly addressed the question of the power of the Commission to commence proceedings with respect to the subject matter of its investigation. There is, however, a line of authority dealing with prosecutions for offences under the ICAC Act itself. Those decisions have upheld the power of an officer of the Commission to lay an information with respect to such an offence, identified above as category two of the CANs the subject of the present proceedings.
In 2015 Garling J dealt with an application under s 69 of the Supreme Court Act to set aside a conviction for an offence under s 87 of the ICAC Act: Lazarus v NSW Director of Public Prosecution. [18] The applicant, Michelle Lazarus, challenged her convictions in the Local Court on seven counts of giving false or misleading evidence. Relevantly for present purposes, Ms Lazarus challenged the lawfulness of the conduct of the prosecution by an officer of the Commission. Garling J held:
“[83] … Mr Michael Kane, who was the prosecutor named on each of the CANs was, I am satisfied, a public officer for the purpose of s 173 of the Criminal Procedure Act, who was authorised under s 14 of that Act to commence proceedings. He was authorised by s 14 of that Act to commence proceedings because with respect to charges under s 87(1) of the ICAC Act, that Act did not expressly confer the right to institute any prosecution or proceedings in respect of that offence expressly on a specified person or class of persons.
[84] The ICAC Act is entirely silent on that question. Accordingly, Mr Kane was authorised pursuant to both ss 14 and 173 of the Criminal Procedure Act in combination, to commence these proceedings.”
“[12] The ICAC Act was indeed silent on the question identified in s 14 of the Criminal Procedure Act; it did not restrict the right to commence a prosecution by expressly conferring the power on a specified person or class of persons. At least it did not do so at the date when these proceedings were commenced. The applicant placed reliance on the functions conferred on the ICAC by s [13] of the ICAC Act. However that reliance was misconceived. That section deals with the matter being investigated, not an incidental prosecution, as in the present case, for an offence against Pt 9 of the ICAC Act. Similarly, reliance on provisions in the ICAC Act limiting the power of the Commission to refer a matter to another body and make recommendations that a person should be prosecuted for a criminal offence (ss 13(4) and [74B]) were referred to) were also directed to the investigatory function of the Commission and did not deal with offences under Pt 9.”
Importantly for present purposes, the Court distinguished a prosecution for a breach of the ICAC Act, from a prosecution arising from the subject matter of the investigation by the Commission. It will be necessary to return to that point shortly.
A related issue was raised in a challenge to the constitutional validity of a legislative amendment to the powers of the Commission, [20] in Lazarus v Independent Commission Against Corruption. [21] The argument was described as “somewhat muted, being developed in written submissions in one sentence and only briefly in oral submissions.” [22] The submission appears not to have been couched in terms of an absence of power to prosecute per se, but instead as a consequence of a limitation upon the scope of the Commission’s investigative powers, upheld by a majority of the High Court and not, so it was said, cured by retrospective validating legislation thereafter enacted. Leeming JA disposed of the submission on the basis that it merely reflected the consequences of the arguments concerning the validity of the Validation Act:
“[143] Either the court attendance notices were valid or they were not. If they were valid, the issue dissolves. If they were not, then for the reasons already given, the Validation Act applied to them in terms …”
However, it may be accepted that the point of distinction was overlooked by this Court in a later judgment dealing with both Ms Michelle Lazarus and Ms Sandra Lazarus: Lazarus v Independent Commission Against Corruption. [23] Both categories of offences were raised, 58 charges being laid against Sandra Lazarus for frauds committed during the latter’s employment in two public hospitals in Sydney. Seven charges were laid against Michelle Lazarus for giving false or misleading evidence during the Commission’s inquiry into the conduct involving her sister. Court attendance notices were issued by an officer or employee of the Commission.
The judgment on the relevant issue commenced:
“[63] The applicants argue that the court attendance notices issued to them were invalid because no officer of ICAC was authorised under the Criminal Procedure Act 1986 (NSW) to commence proceedings in respect of offences under the Crimes Act and ICAC Act*.* It is said to follow that the criminal proceedings initiated in the Local Court were without lawful authority. That argument was addressed and rejected by Garling J in [Lazarus (2015)] and directed to the orders of the Local Court …. It was also rejected as a proposed ground of appeal to this Court on the leave application … : [Lazarus (2016)] at [10] – [12].”
Sections 14 and 173 of the Criminal Procedure Act were then set out and the presumption that the officer was acting in his capacity as an officer of Commission was noted and said not to be displaced. [24] The Court concluded that no jurisdictional error on the part of the District Court had been established.
The remaining issue is whether the Commission has power to prosecute for breaches of its own legislation, that is, primarily, by hindering its officers or giving false evidence before it. That it has was accepted in earlier authorities, and a question arises on the applicant’s case as to whether those authorities were correctly decided.
First, unlike offences under the Crimes Act, offences in relation to the operations of the Commission are set out in the ICAC Act, and steps for their prosecution provided in s 116 of that Act. Such offences are temporally and institutionally separate from the investigation of corrupt conduct. They are temporally distinct because they only arise in the course of investigation, and do not form part of the possibly corrupt conduct. Institutionally, the provisions of the ICAC Act are protective of the integrity of the investigative process carried out by the Commission, as compared with the Commission’s investigative functions which are concerned with corrupt conduct across the public service.
While it is true that there is no express function conferred on the Commission to prosecute for offences under its own Act, steps taken to protect the integrity of its own investigation may readily fall within the scope of the incidental powers conferred by s 19(1) of the ICAC Act, as being necessary in connection with or reasonably incidental to “the exercise of its functions”. The necessary process is identified in the ICAC Act, s 116. Such a prosecution is not covered by the constraints on the contents of reports to Parliament under Pt 8, nor the restrictions on those functions under Pt 4 of the ICAC Act.
Conduct the subject of the offences identified in Pt 9 (which include obstructing and hindering the operation of the Commission and giving false evidence at a compulsory examination) may well fall within the matters identified in Pt 10 involving contempt of the Commission. The Commission is not given powers to punish for contempt, but is empowered to present a certificate to the Supreme Court setting out the facts upon which the Court may inquire into the alleged contempt and punish the contemnor: ICAC Act, s 99. It is consistent with the structure of Pt 10 that offences under Pt 9 can be pursued by filing a court attendance notice in the Local Court under s 116, thereby instituting a process protective of the Commission’s integrity. There is nothing in the ICAC Act which is inconsistent with that approach. The approach is itself consistent with the authorities discussed above in relation to the prosecution of Ms Michelle Lazurus.
It would follow from this conclusion that the Criminal Procedure Regulation 2010 (NSW), identifying an officer of the Commission as a “public officer” for the purposes of the s 3(1) of the Criminal Procedure Act, and thus a person entitled to commence proceedings without the authorisation of a registrar of the Local Court, pursuant to s 173 of the , would have work to do. Similarly, the post-2011 amendment of the providing that an officer of the Commission does not have power to commence proceedings unless with prior permission of the DPP, will also have work to do.
It follows that the issuing of the three CANs against the applicant alleging breaches of the ICAC Act was valid. However, the issuing of the CANs for offences under the Crimes Act, being offences arising from the investigation of allegations of corrupt conduct on the part of the applicant, was invalid.
It may be noted that the primary judge addressed the issues which have been raised in this Court, but not on the basis that there could have been a bifurcation in the result, so that some CANs were valid and others were not. The judge’s reasoning focused upon the provisions of ss 14 and 173 of the Criminal Procedure Act, noting that the exclusion from the power to prosecute under s 14 by reference to a restriction in another Act, was not engaged. He concluded that an officer of the Commission was a public officer, not constrained by the provisions of s 14A, and was a “person” who might institute proceedings in the absence of an express provision conferring the right to institute proceedings on some other personal class of persons. [25]
The primary judge also noted the statements in the 1988 second reading speech for the ICAC Act, that the Commission “will not have power to conduct prosecutions for criminal offences” and “will not be engaging in a prosecutorial role”. [26] The judge was not persuaded that that view was correct, so that, in the absence of an express prohibition in the ICAC Act, the second reading speech could not be used to give the ICAC Act an effect which brought it within the exclusion of s 14 of the Criminal Procedure Act. The judge suggested that the second reading speech may have been referring to “a lack of power, perhaps as a result of there being no express provisions to take prosecutions or commence them.” [27]
The applicant appeared in person before the primary judge, raising a plethora of challenges, most of which were unsupportable, but had to be addressed. A perusal of the transcript demonstrates that the analysis of the legislation set out above was not engaged in. That is not to deny the applicant the benefit of the legal arguments now developed by counsel, but it provides some explanation of the brevity of the consideration given by the primary judge to the issues addressed above.
The draft notice of appeal as amended sought, among other things, an order setting aside the finding of the primary judge that an ICAC officer was empowered to prosecute in his official capacity by s 14 of the Criminal Procedure Act. It further sought a declaration that the ICAC had exceeded its jurisdiction when it made allegations that the applicant had committed criminal offences. Thirdly, it sought declarations as to the invalidity of the CANs.
So far as these orders are concerned, first, the Court does not set aside findings but orders; secondly, a declaration of exceeding jurisdiction by making allegations constitutes a challenge to the report, and not to the CANs, and is therefore not within the scope of the ground of leave to appeal; thirdly, the declaration as to the invalidity of the CANs must be refined to accommodate the bifurcated conclusion set out above.
Separately, it was necessary to deal with the fact that the Local Court had made orders on 9 December 2024 convicting the applicant on sequences 1 and 6 – 13 (the Crimes Act offences) and sentencing him for those offences. As to sequence 1, he was sentenced to a term of imprisonment of 12 months to commence on 9 June 2024 and expire on 8 June 2025, with a non-parole period terminating the day before the sentencing. With respect to the other 8 offences, the applicant was sentenced to an aggregate term of imprisonment for 15 months to commence on the date of sentencing (9 December 2024) and expire on 8 March 2026. The term was to be served by way of intensive correction in the community, subject to standard conditions. Although the relevant documents were not before this Court, it was common ground that the applicant promptly lodged an appeal to the District Court pursuant to Pt 3 of the Crimes *(*Appeal and Review) Act 2001 (NSW), the effect of which was to stay the execution of the sentences, pursuant to s 63 of that Act. The Court was further informed that the District Court appeals have not yet been determined, and that the Local Court charges for offences under the ICAC Act have been listed for judgment in July 2025.
Counsel for the applicant accepted that relief restricted to declarations as to the invalidity of the CANs would be inadequate, given the subsequent events in the Local Court, and filed an amended draft notice of appeal seeking a declaration that the orders of the Local Court were invalid. However, rather than a declaration, the proper order, consequent on the applicant’s success in this Court, is to set aside the convictions and sentences in the Local Court entered on 9 December 2024.
With respect to costs, neither party sought an order for costs in this Court. In those circumstances, having set aside the orders of the primary judge, it is appropriate that there be no order as to the costs of the proceedings below. The Court appreciates the willingness of both counsel and solicitors to appear pro bono and on short notice, and to provide significant assistance to the Court.
(1) Grant the applicant leave to appeal from the judgment and orders in the Common Law Division of 8 August 2024.
(2) Direct the applicant to file a notice of appeal in the terms of the amended draft notice of appeal within 7 days.
(3) Set aside orders (3) and (4) made by the primary judge on 8 August 2024.
(4) Declare that, the Independent Commission Against Corruption having no power to prosecute for matters the subject of an investigation by it into corrupt conduct involving the applicant, neither the Commission nor an officer of the Commission had authority to issue the court attendance notices in relation to sequences 1 and 6-13 in October 2011.
(5) Set aside the convictions entered in the Local Court on 9 December 2024 and the sentences consequent upon those convictions.
(6) Declare that the Independent Commission Against Corruption, and its duly authorised officer, did not lack authority to institute proceedings for breaches of the Independent Commission Against Corruption Act 1988 (NSW).
**********
LC Tcpt, 26/06/23, pp 22(40)-23(50).
LC Tcpt, p 34(1)-(18).
LC Tcpt, p 37(30).
Gamage v Riashi [2024] NSWSC 975 (primary judgment).
As in force in October 2011.
See now Criminal Procedure Regulation 2017 (NSW), cl 113(1)(a).
References are to the legislation in force in October 2011, but there have been no material changes to the ICAC Act since then.
(1957) 96 CLR 245, 250 (Dixon CJ, Williams, Webb and Fullagar JJ); [1957] HCA 4.
NSW Legislative Assembly, Parliamentary Debates (Hansard), 26 May 1988, p 674.
Ibid, p 677.
(1990) 169 CLR 625; [1990] HCA 28.
Balog at 635.
NSW Legislative Assembly, Parliamentary Debates (Hansard), 21 November 1990, p 10201.
NSW Legislative Council, Parliamentary Debates (Hansard), 6 April 2005, p 15066.
Deputy Commissioner of Taxes (SA) v Elder’s Trustee and Executor Co Ltd (1936) 57 CLR 610, 625-626 (Dixon, Evatt and McTiernan JJ); [1936] HCA 64; Masson v Parsons (2019) 266 CLR 554; [2019] HCA 21 at [28] (Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ); AQO v Minister for Finance and Services (2016) 93 NSWLR 46; [2016] NSWCA 248 at [142]-[143]; P Herzfeld and T Prince, Interpretation (3rd ed, 2024, Thomson Reuters), at [8.330].
Hansard, p 15066.
Hansard, p 15068.
[2015] NSWSC 1116 (“Lazarus (2015)”).
[2016] NSWCA 47 (Basten and Ward JJA) (“Lazarus (2016)”).
By the Independent Commission Against Corruption Amendment (Validation) Act 2015 (NSW) (“Validation Act”).
(2017) 94 NSWLR 36; [2017] NSWCA 37 (“Lazarus (2017)”).
Lazarus (2017) at [140].
[2019] NSWCA 100; (2019) 367 ALR 274 (Meagher JA, Sackville AJA and I agreeing) (“Lazarus (2019)”).
Lazarus (2019) at [65].
Judgment at [48], [51].
Judgment at [44].
Judgment at [45].
Gamage
Riashi [2025] NSWCA 84
(2016) 93 NSWLR 46
(1990) 169 CLR 625
(1936) 57 CLR 610
(2017) 94 NSWLR 36
(2019) 266 CLR 554
(1957) 96 CLR 245
(2019) 367 ALR 274
Leave to appeal granted; appeal allowed in part. Orders (3) and (4) of the primary judge were set aside. The Court declared that ICAC and its officer lacked authority to issue the CANs for sequences 1 and 6-13, set aside the Local Court convictions and sentences entered on 9 December 2024 for those offences, and declared that ICAC and its duly authorised officer did not lack authority to institute proceedings for breaches of the ICAC Act: [63].
The following orders should be made: