The NSW Court of Appeal has recently upheld a challenge to the power of the Independent Commission Against Corruption (ICAC) to commence criminal proceedings, finding that the Commission and its officers lack the authority to institute prosecutions for offences arising from its investigations into corrupt conduct: Gamage v Riashi [2025] NSWCA 84. The decision affirms an important distinction between ICAC’s investigative functions and the prosecutorial role of the Director of Public Prosecutions.
In October 2011, an officer of the Independent Commission Against Corruption purported to issue a number of court attendance notices (CANs) alleging offences committed by the applicant, Mr Gamage. In doing so, the ICAC officer purported to act as a “public officer” under s 173 of the Criminal Procedure Act 1986 (NSW). Of the twelve charges that proceeded, nine involved offences under the Crimes Act 1900 (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) (the ICAC Act).
Mr Gamage sought leave to appeal from a judgment of the Supreme Court dismissing his challenge to the validity of the CANs issued in 2011. Basten AJA (with whom Leeming JA and Griffiths AJA agreed) granted leave to appeal, allowed the appeal in relation to the Crimes Act offences, and set aside Mr Gamage’s convictions for nine alleged offences under the Crimes Act.
The Court conducted a detailed examination of the ICAC Act, holding that:
- the Commission’s statutory functions are primarily to “investigate, communicate to appropriate authorities about, and take steps to limit opportunities for, corrupt conduct”;
- express prohibitions on ICAC including in a report a statement “recommending prosecution”, or even forming an opinion that a prosecution should occur, are “inconsistent with [ICAC] having an implied power to institute a prosecution itself”; and
- accordingly, in purportedly instituting the prosecutions of Mr Gamage for offences arising from ICAC’s investigations into corrupt conduct, the ICAC officer was not lawfully acting as a “public officer”.
In reaching those conclusions, the Court declined to follow one of its previous decisions, which had accepted that ICAC’s powers extended to the institution of proceedings for offences under the Crimes Act. However, the Court affirmed previous authority that ICAC’s implied powers extend to the institution of prosecutions for incidental offences against the ICAC Act, which are protective of the integrity of ICAC’s investigations.
Matt Karam and Harry Rogers appeared for the appellant.
