Operations Credo and Spicer reports status

Friday 29 April 2016

Preparation of these reports has been affected by litigation, legislative changes and the need to ensure that those involved are afforded procedural fairness.

The relevant litigation included the 5 December 2014 NSW Court of Appeal judgment in Cunneen v ICAC [2014] NSWCA 421 and the 4 March 2015 High Court judgment in ICAC v Cunneen [2015] HCA 14. Both these decisions affected the Commission’s jurisdiction in relation to matters being investigated as part of operations Spicer and Credo and resulted in the Commission suspending activity in these matters pending a decision by the NSW Government whether it would amend the Independent Commission Against Corruption Act 1988 (the ICAC Act) in relation to the Commission’s jurisdiction.

On 6 May 2015, the NSW Parliament passed the Independent Commission Against Corruption Amendment (Validation) Act 2015 (the Validation Act). It validated things done by the Commission before 15 April 2015 which depended on the Commission’s previous construction of section 8(2) of the ICAC Act.

The validity of the Validation Act was subject to a challenge in the High Court. Judgment dismissing the application was delivered on 9 September 2015 (Duncan v ICAC [2015] HCA 32).

In order to consider the scope of the Commission’s jurisdiction in light of the High Court judgment in Cunneen, the NSW Government established an Independent Panel, which provided its report to the Premier on 30 July 2015.

The NSW Parliament subsequently passed the Independent Commission Against Corruption Amendment Act 2015 which came into force on 28 September 2015. It amended the ICAC Act in relation to the jurisdiction and functions of the Commission.

Further delay in relation to Operation Spicer occurred because of proceedings brought in the Supreme Court of NSW in September 2015 seeking orders restraining the Commission from preparing or furnishing any report in Operation Spicer. The case was heard on 12 and 13 November 2015. Judgment was delivered on 10 December 2015 dismissing the summons (McCloy v Latham [2015] NSWSC 1879).

The High Court decision in Cunneen and the legislative responses to that decision fundamentally affected significant aspects of operations Spicer and Credo. In these circumstances it was necessary that the Commission be furnished with further written submissions from Counsel Assisting the Commission and relevant parties addressing how the Commission should interpret and apply the ICAC Act in light of the relevant developments. Final submissions were received on 25 February 2016.

The Commission is now working towards completing the reports for these operations. The reports will be furnished to Parliament in due course.