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Key decisions

  • Duncan v Independent Commission Against Corruption [2015] HCA 32
  • Fuller-Lyons v NSW [2015] HCA 31
  • AstraZeneca AB v Apotex Pty Ltd; AstraZeneca AB v Watson Pharma Pty Ltd; AstraZeneca AB v Ascent Pharma Pty Ltd [2015] HCA 30


Judicial power – whether Act passed to reverse effect of High Court decision interferes with integrity of state court

In Duncan v Independent Commission Against Corruption [2015] HCA 32 (9 September 2015) the High Court decided in April 2015 in ICAC v Cunneen [2015] HCA 14 that the definition of ‘corrupt conduct’ that the ICAC was given jurisdiction to investigate by the ICAC Act 1988 (NSW) did not encompass conduct that did not compromise the conduct of public administration. In early 2015 D was seeking leave to appeal to the NSW Court of Appeal against a finding of a primary judge that a like report concerning him and others was likewise beyond the jurisdiction of ICAC as it did not relate to any compromise of public administration. In May 2015 the NSW parliament passed the ICAC (Validation) Act 2015 to introduce into the ICAC Act provisions intended to ensure the validity of ICAC’s activities before April 2015. D amended his proceedings in the NSW Court of Appeal to challenge the effect of the amendments and this part of his proceedings was removed to the High Court. It was accepted that given Cunneen the ICAC report affecting D was affected at the time of publication by a misconstruction of the ICAC Act and affected by jurisdictional error. D contended the new provisions had failed to validate the invalid acts of ICAC and merely directed courts to treat invalid acts as valid in contravention of the principles in Kable v DPP (NSW) [1996] HCA 24 and also Kirk v Industrial Court (NSW) [2010] HCA 1. All members of the High Court rejected this contention holding the amending legislation had amended the definition as a matter of substantive law and neither Kable nor Kirk was offended: French CJ, Kiefel, Bell & Keane JJ jointly; Gageler J; Nettle & Gordon JJ jointly. The Court observed that amendments to substantive law did not involve any interference with judicial power where that law was the subject of proceedings. Those parts of the proceedings in the Court of Appeal (NSW) that were removed to the High Court were dismissed.

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