Independent Commission Against Corruption v Cunneen [2015] HCA 14

HIGH COURT OF AUSTRALIA

FRENCH CJ, HAYNE, KIEFEL, GAGELER AND NETTLE JJ

INDEPENDENT COMMISSION AGAINST CORRUPTION APPLICANT

AND

MARGARET CUNNEEN & ORS RESPONDENTS

Independent Commission Against Corruption v Cunneen [2015] HCA 14 15 April 2015 S302/2014

ORDER

1. Special leave to appeal granted.

2. Appeal treated as instituted and heard instanter and dismissed with costs.

On appeal from the Supreme Court of New South Wales

Representation

J K Kirk SC with S Robertson for the applicant (instructed by Crown Solicitor (NSW))

D F Jackson QC with A R Moses SC and R L Gall for the respondents (instructed by Cockburn and Co)

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Independent Commission Against Corruption v Cunneen

Statutory bodies – Investigating commission – Independent Commission Against Corruption – Powers – Independent Commission Against Corruption Act 1988 (NSW), s 8(2) defines "corrupt conduct" as conduct that could "adversely affect" exercise of official function by public official – Whether conduct that could adversely affect efficacy, but not probity, of exercise of official function by public official "corrupt conduct".

Statutes – Interpretation – Context and purpose – Statutory definitions – Effect of express statement of objects of Act – Where purpose of Act cannot be identified without reference to terms to be interpreted.

Statutes – Interpretation – Extrinsic materials – Legislative history – Where legislation not amended after review of Act.

Words and phrases – "adversely affect", "and which could involve", "corrupt conduct".

Independent Commission Against Corruption Act 1988 (NSW), ss 2A, 8, 9, 12A.

FRENCH CJ, HAYNE, KIEFEL AND NETTLE JJ. This is an application for special leave to appeal from a decision of the New South Wales Court of Appeal. The principal question for determination is what is meant by the expression "adversely affects, or that could adversely affect ... the exercise of official functions by any public official" in the definition of "corrupt conduct" in s 8(2) of the Independent Commission Against Corruption Act 1988 (NSW) ("the ICAC Act"). "Adversely affect" is a protean expression. In this context, however, there are only two possibilities. Either it means adversely affect or could adversely affect the probity of the exercise of an official function by a public official, or it means adversely affect or could adversely affect the efficacy of the exercise of an official function by a public official in the sense that the official could exercise the function in a different manner or make a different decision from that which would otherwise be the case. The former meaning accords with the ordinary understanding of corruption in public administration and consequently with the principal objects of the ICAC Act as set out in s 2A. The latter would result in the inclusion in "corrupt conduct" of a broad array of criminal offences and other unlawful conduct having nothing to do with the ordinary understanding of corruption in public administration or the principal objects of the ICAC Act. It would also enable the Independent Commission Against Corruption ("ICAC") to exercise its extraordinary coercive powers (with consequent abrogation of fundamental rights and privileges) in areas ranging well beyond the ordinary understanding of corruption in public administration and the principal objects of the ICAC Act. For those reasons, and the reasons which follow, the former meaning is to be preferred. The history of the ICAC Act The Independent Commission Against Corruption Bill 1988 was introduced into the New South Wales Parliament on 26 May 1988. In the course of the second reading speech, the then Premier of New South Wales, Mr Greiner, observed: "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. That is made clear in this legislation, and it was made clear in the statements I made prior to the election. It is nonsense, therefore, for anyone to suggest that the establishment of the independent commission will in some way derogate from the law enforcement role of the police or bodies such as the National Crime Authority. On the contrary, the legislation makes it clear that the focus of the commission is public corruption and that the commission is to co-operate with law enforcement agencies in pursuing corruption. ... My fourth point is that the independent commission is not a purely investigatory body. The commission also has 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. ... The final point I want to make by way of introduction concerns the question of civil liberties. This commission will have very formidable powers. It will effectively have the coercive powers of a Royal commission. ... There will be those who will say that this legislation is unjustified interference with the rights of individuals who may be the subject of allegations. Let me make a number of points in response to that sort of claim. First, though the commission will be able to investigate corrupt conduct of private individuals which affects public administration, the focus is public administration and corruption connected with public administration. The coercive powers of the commission will be concentrated on the public sector. Second, corruption is by its nature secretive and difficult to elicit. It is a crime of the powerful. It is consensual crime, with no obvious victim willing to complain." As a consequence of parliamentary debate, a number of amendments were agreed to and incorporated into the Independent Commission Against Corruption Bill (No 2) 1988 and that Bill was read a second time on 3 June 1988. The Bill, as amended, was enacted as the ICAC Act. As enacted, ss 8 and 9 of the ICAC Act defined "corrupt conduct" as follows: "8. General nature of corrupt conduct (1) Corrupt conduct is— (a) any conduct of any person (whether or not a public official) that adversely affects, or that could adversely affect, either directly or indirectly, the honest or impartial exercise of official functions by any public official, any group or body of public officials or any public authority; or (b) any conduct of a public official that constitutes or involves the dishonest or partial exercise of any of his or her official functions; or (c) any conduct of a public official or former public official that constitutes or involves a breach of public trust; or (d) any conduct of a public official or former public official that involves the misuse of information or material that he or she has acquired in the course of his or her official functions, whether or not for his or her benefit or for the benefit of any other person. (2) Corrupt conduct is also any conduct of any person (whether or not a public official) that adversely affects, or that could adversely affect, either directly or indirectly, the exercise of official functions by any public official, any group or body of public officials or any public authority and which involves any of the following matters: (a) official misconduct (including breach of trust, fraud in office, nonfeasance, misfeasance, malfeasance, oppression, extortion or imposition); (b) bribery; (c) blackmail; (d) obtaining or offering secret commissions; (e) fraud; (f) theft; (g) perverting the course of justice; (h) embezzlement; (i) election bribery; (j) election funding offences; (k) election fraud; (l) treating; (m) tax evasion; (n) revenue evasion; (o) currency violations; (p) illegal drug dealings; (q) illegal gambling; (r) obtaining financial benefit by vice engaged in by others; (s) bankruptcy and company violations; (t) harbouring criminals; (u) forgery; (v) treason or other offences against the Sovereign; (w) homicide or violence; (x) matters of the same or a similar nature to any listed above; (y) any conspiracy or attempt in relation to any of the above. (3) Conduct may amount to corrupt conduct under this section even though it occurred before the commencement of this subsection, and it does not matter that some or all of the effects or other ingredients necessary to establish such corrupt conduct occurred before that commencement and that any person or persons involved are no longer public officials. (4) Conduct committed by or in relation to a person who was not or is not a public official may amount to corrupt conduct under this section with respect to the exercise of his or her official functions after becoming a public official. (5) Conduct may amount to corrupt conduct under this section even though it occurred outside the State or outside Australia, and matters listed in subsection (2) refer to— (a) matters arising in the State or matters arising under the law of the State; or (b) matters arising outside the State or outside Australia or matters arising under the law of the Commonwealth or under any other law. (6) The specific mention of a kind of conduct in a provision of this section shall not be regarded as limiting the scope of any other provision of this section. 9. Limitation on nature of corrupt conduct (1) Despite section 8, conduct does not amount to corrupt conduct unless it could constitute or involve— (a) a criminal offence; or (b) a disciplinary offence; or (c) reasonable grounds for dismissing, dispensing with the services of or otherwise terminating the services of a public official. ..." Thus, as enacted, s 8(2) had two limbs: the "that could adversely affect" limb and the "and which involves" limb, and s 9 imposed a third criterion, that the conduct involve a crime or breach of a relevant standard of conduct. By Divs 2, 3 and 4 of Pt 4 of the ICAC Act, ICAC was vested with extraordinary powers, inter alia, to conduct investigations on its own initiative or on a complaint being made to it; to compel the production of information and documents regardless of privilege or duty of secrecy; to enter public premises; to require any person to provide information regardless of the privilege against self-incrimination; to conduct compulsory examinations and public inquiries; to summon witnesses and take evidence; and to issue and execute search warrants. Some two years later, following the decision of this Court in Balog v Independent Commission Against Corruption, the ICAC Act was amended by the Independent Commission Against Corruption (Amendment) Act 1990 (NSW) to give ICAC a clear and wide power to make and report findings and opinions based on results of its investigations and to make recommendations for the taking of further action. The 1990 Act also amended s 8(2) by omitting the words "which involves" and inserting in their place "which could involve" so that s 8(2) now reads: "Corrupt conduct is also any conduct of any person (whether or not a public official) that adversely affects, or that could adversely affect, either directly or indirectly, the exercise of official functions by any public official, any group or body of public officials or any public authority and which could involve any of the following matters ..." Section 9(1)(d) was inserted in 1994. Section 9(1) now reads: "Despite section 8, conduct does not amount to corrupt conduct unless it could constitute or involve: (a) a criminal offence, or (b) a disciplinary offence, or (c) reasonable grounds for dismissing, dispensing with the services of or otherwise terminating the services of a public official, or (d) in the case of conduct of a Minister of the Crown or a member of a House of Parliament—a substantial breach of an applicable code of conduct." Some ten years after that, on 11 November 2004, Mr Bruce McClintock SC was commissioned by letters patent to take over and conclude an inquiry into whether the terms of the ICAC Act remained appropriate for securing its objectives. In his final report, which was presented in January 2005, Mr McClintock stated: "ICAC was established to promote the integrity and accountability of public administration by investigating, exposing and preventing serious corruption and educating the public about the detrimental effects of corruption. I am satisfied that the terms of the Act remain generally appropriate for securing its objectives. Some amendments to the Act are required, however, particularly to improve the accountability of ICAC and to make sure its role is properly understood." Two of the amendments proposed by Mr McClintock are relevant for present purposes. The first was to include an express statement of the objectives of the Act in order to eliminate what was perceived to be residual confusion as to the role of ICAC. That recommendation was accepted. Sections 2A and 12A of the ICAC Act were enacted as follows: "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. ... 12A Serious and systemic corrupt conduct In exercising its functions, the Commission is, as far as practicable, to direct its attention to serious and systemic corrupt conduct and is to take into account the responsibility and role other public authorities and public officials have in the prevention of corrupt conduct." In the second reading speech relating to those amendments, the Minister, Mr Sartor, stated that: "The main changes introduced by the bill are as follows. The bill inserts a new section 2A into the Act to specify the objectives of the Act. These objectives confirm the role of the ICAC as an independent and accountable body established to investigate, expose, and prevent corruption involving or affecting public administration. The bill inserts a new section 12A into the Act to require the ICAC, so far as practicable, to direct its attention to serious and systemic corruption. Under part 5 of the Act, other matters may be referred by the ICAC to any person or body considered by the ICAC to be appropriate in the circumstances." The second recommendation of relevance was to redraft s 8 "to more clearly distinguish between corruption by public officials and corruption that adversely affects the performance of public official functions, without involving official wrongdoing". In making that recommendation, Mr McClintock set forth his understanding of the effect of s 8(2) as follows: "Section 8(2) corrupt conduct can be distinguished from section 8(1) conduct as it requires no wrongdoing on behalf of the public official. The conduct is corrupt because of its potential to adversely affect official functions, not because of any wrongdoing by the official." As will be seen, that was not an accurate assessment of the effect of s 8(2) and, in any event, the recommendation was not adopted. Previous authority concerning the meaning of s 8(2) Until now, s 8(2) has received little judicial attention. There was some reference to it in the judgments of the New South Wales Court of Appeal in Greiner v Independent Commission Against Corruption, but there was no need to consider what kind of effect would be required to qualify as an adverse effect within the meaning of s 8(2). In Independent Commission Against Corruption v Chaffey, Gleeson CJ began his judgment with this observation: "Under the Independent Commission Against Corruption Act 1988 one of the principal functions of the Commission is to investigate allegations or complaints of corrupt conduct. The expression 'corrupt conduct' is widely defined. It includes conduct that may not be unlawful, and, in so far as it covers unlawful conduct, it includes criminal offences (such as homicide, illegal drug dealing, theft and many others) which are a part of the ordinary calendar of crime. Although the Act is aimed at official corruption, to be guilty of corrupt conduct a person need not be a public official, provided the conduct in question could adversely affect, directly or indirectly, the exercise of official functions by a public official." Once again it was unnecessary to consider what kind of effect would be required to constitute an adverse effect for the purposes of s 8(2). In Balog, this Court stated that: "'Corrupt conduct' is defined in ss 7, 8 and 9 and extends generally to any conduct of any person that adversely affects or could adversely affect the honest or impartial exercise of official functions or which constitutes or involves the dishonest or partial exercise of official functions or a breach of public trust. It also includes conduct that adversely affects or could adversely affect the exercise of official functions and involves any one of a number of specified criminal offences, including bribery, blackmail, perverting the course of justice and the like. Nevertheless, conduct does not amount to corrupt conduct unless it could constitute or involve a criminal offence, a disciplinary offence or reasonable grounds for dismissing or dispensing with the services of a public official or otherwise terminating those services." Again, there was no question in that case as to what is meant by "adversely affect" in s 8(2). Significantly, however, in each of those three cases it was either assumed or concluded that the relative clause "and which could involve" limits and defines the "conduct" as opposed to "the exercise of official functions". Later in these reasons, it will be necessary to mention a possible alternative construction whereby the "and which could involve" clause would be taken to limit and control the exercise of the official function as opposed to the conduct. At this point, it is convenient to assume that the approach adopted in the three cases was correct. The proceedings below The first respondent to this application ("Ms Cunneen") is a Deputy Senior Crown Prosecutor of the State of New South Wales. Late last year, ICAC (the applicant) served a summons on her to appear before it to give evidence at a public inquiry to be conducted for the purposes of investigating an allegation or complaint: "That on 31 May 2014 Deputy Senior Crown Prosecutor, Margaret Cunneen SC and Stephen Wyllie, with the intention to pervert the course of justice, counselled Sophia Tilley to pretend to have chest pains, and that Sophia Tilley, with the intention to pervert the course of justice, did pretend to have chest pains, to prevent investigating police officers from obtaining evidence of Ms Tilley's blood alcohol level at the scene of a motor vehicle accident." It should be appreciated that Ms Cunneen's alleged conduct was not being investigated for the effect it might have on her official functions as a Crown Prosecutor in the sense that, as a public official, she might exercise her official functions in a different manner or make a different decision from that which would otherwise be the case. Following service of the summons, Ms Cunneen instituted proceedings in the Common Law Division of the Supreme Court of New South Wales for, inter alia, a declaration that the alleged conduct was not corrupt conduct within the meaning of s 8 of the ICAC Act and, therefore, that ICAC was acting beyond power in issuing the summons. At first instance, Hoeben CJ at CL held that the alleged conduct was corrupt conduct within the meaning of s 8 and so dismissed the application. On appeal to the Court of Appeal, the majority (Basten and Ward JJA) held that the alleged conduct was not corrupt conduct within the meaning of s 8 and therefore allowed the appeal. The judgments in the Court of Appeal Bathurst CJ, in dissent, reasoned in substance by the following steps: (1) Section 8(6) expressly provides that mention of a kind of conduct in one provision of the section does not limit the scope of any other provision of the section. (2) Unlike s 8(1), the first limb of s 8(2) does not expressly refer to any form of misconduct or potential misconduct by a public official. The misconduct, or potential misconduct, is picked up in the second limb of s 8(2). (3) Although the width of s 8(2) is such that, in many cases, conduct could fall within both s 8(1) and s 8(2), that is not a reason to read down s 8(2). It would be contrary to s 8(6) to do so. (4) It does not appear to be outside the contemplation of the legislature that both s 8(1) and s 8(2) could be satisfied by the same set of facts. (5) The critical question is what is meant by the expression "adversely affect, either directly or indirectly, the exercise of official functions". (6) If conduct limits or prevents the proper performance of a public official's function, the first limb of s 8(2) will be satisfied. (7) In this case, the alleged conduct had the potential effect of diverting the investigating police officers from the performance of an investigation into a suspected crime. That is sufficient to satisfy the first limb of s 8(2), assuming the second limb of s 8(2) is made out. (8) The second limb of s 8(2) would be made out where the alleged conduct had the tendency to deflect the police from invoking the jurisdiction of the court, when it was their duty to do so. That could amount to perverting the course of justice. (9) The alleged conduct had the tendency to frustrate or deflect the course of curial proceedings, thereby adversely affecting, at least indirectly, the exercise by a court of its official functions. In contrast, Basten JA held that it was evident from the principal object of the ICAC Act, as set out in s 2A and as emerges from the two-limbed structure of s 8(2), that the Act is not concerned with "all unlawful conduct which could adversely affect public administration". In his Honour's view, it is necessary to read the expression "adversely affect" in s 8(2) as limited to "conduct which has the capacity to compromise the integrity of public administration". Ward JA reasoned to similar effect, although not identically, that conduct may not be regarded as having the capacity to "adversely affect" the exercise by a public official of his or her official functions within the meaning of s 8(2), even if it "could have a potential effect on the exercise of official functions in the sense that it might cause a different decision to be made or the functions to be exercised in a different manner", unless the conduct has "the potential to cause ... 'corruption' in the exercise by the public official of his or her functions" or could "have [an] adverse outcome when viewed from a public corruption perspective". Her Honour was not persuaded that the alleged conduct satisfied that description. Basten and Ward JJA both accepted that the alleged conduct had the capacity to affect detrimentally the exercise by the investigating police officers of their investigative powers, in the sense that the police officers might make a different decision or exercise their functions in a different manner. But their Honours considered that it did not have the capacity to lead the officers or any other public official into dishonest, partial or otherwise corrupt conduct. Consequently, it was not corrupt conduct within the meaning of s 8(2). Difficulties with the approaches taken in the Court of Appeal and by the parties As was said in Project Blue Sky Inc v Australian Broadcasting Authority: "The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined 'by reference to the language of the instrument viewed as a whole'. ... A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions." (emphasis added, footnotes omitted) Judged by reference to those imperatives, there are potential difficulties with each of the approaches adopted in the Court of Appeal. The difficulty with the approach taken by Bathurst CJ, which ICAC urged this Court to approve, is that it assumes that the plain and ordinary meaning of "adversely affect" is its broadest possible meaning and does not attempt any kind of reconciliation of the meaning of that expression with the statutory context in which it appears. Conversely, the approach adopted by the majority, which counsel for the respondents urged this Court to adopt, is susceptible to circularity. Counsel for ICAC characterised it as circularity of the kind identified in Shin Kobe Maru; which is to say the circularity which arises when the terms of a definition are interpreted by reference to the term defined. It would be more accurate to say, however, that if there is any circularity in the majority's reasoning, it is constituted of assuming the purpose of the Act and then reasoning, as if syllogistically, that, because a meaning of "adversely affect" limited to an adverse effect on probity is more consonant with the assumed purpose of the Act, that meaning should be preferred. More specifically, Basten JA referred to the concern of the ICAC Act being with "conduct which has the capacity to compromise the integrity of public administration" – the assumption being that the compromise of public administration in that sense is limited to adverse effects upon the probity of public administration – and thus concluded that "adversely affect" in s 8(2) should be taken as limited to adversely affects the probity of the exercise of official functions by public officials. Similarly, Ward JA took as a starting point that the "focus of the ICAC Act is on corruption in the public sector". Her Honour stated that the ICAC Act is directed to dealing with adverse effects on the exercise of official functions by public officials from a "public corruption perspective" – the assumption being that the "public corruption perspective" is limited to adverse effects upon the probity of public administration – and thus concluded that "adversely affect" in s 8(2) should be taken as limited to adverse effects upon the probity of the exercise of official functions by public officials. In a case like this, however, it is not logically open to apply that kind of syllogistic reasoning. It is impossible to identify the purpose of the ICAC Act (and, therefore, impossible to establish a major premise against which to compare the relative consistencies of the competing constructions of ss 8 and 9) without reference to the scope of operation of the Act as defined by ss 8 and 9. For the same reason, it is not open to express a conclusion as to the meaning of "adversely affect" in s 8(2) in terms of absolute validity. The best that can be done is to reason in terms of relative consistency – internal logical consistency and overall consistency in accordance with the principles of statutory interpretation adumbrated in Project Blue Sky – to determine which of the two competing constructions of "adversely affect" is more harmonious overall. The meaning of "adversely affect" The question remains whether s 8(2) should be seen as limited to "corruption in public administration" in the sense of something which has or could have an effect upon the probity of public administration, or whether it comprehends something more. Counsel for ICAC contended that "corruption" is a term of such variable content as to be capable of including even mere alteration or marring; and that, in this context, there is no reason to suppose a statutory intention that it be any more limited than that. For the reasons which follow, that submission must be rejected. As Basten JA observed, the ordinary meaning of corruption in public administration implies dishonest or partial exercise of an official function. But to read "adversely affect" in s 8(2) as limited to causing a public official to act dishonestly or partially in the exercise of an official function would be to read s 8(2) as adding nothing to s 8(1); and it would not be right to read s 8(2) in a way that gave it no work to do beyond that already done by s 8(1)(a). Equally, however, it would not be right to read the four paragraphs of s 8(1) and the provision made by s 8(2) as if they were mutually exclusive. Rather, s 8(1) and (2) must be read recognising that s 8 describes "corrupt conduct" as not only misconduct by public officials but also misconduct (by any person) that does or could affect what public officials do. The provisions must further be read recognising that conduct of a public official that falls within s 8(1)(b) may also be conduct of a kind described in s 8(1)(c) or s 8(1)(d) and that the conduct of a public official may, but need not, be accompanied or preceded by conduct of another person (whether or not a public official) that falls within either or both of s 8(1)(a) and s 8(2). And the provisions must be read recognising that conduct of a person (whether or not a public official) that falls within s 8(1)(a) or s 8(2), or both, may, but need not, be accompanied or followed by conduct of a public official that falls within any of s 8(1)(b)-(d), or within either or both of s 8(1)(a) and s 8(2). Hence, when it is said that s 8(2) must be given work to do beyond the work done by s 8(1) (and s 8(1)(a) in particular) the concern is to identify additional work done by the provision, not some wholly distinct and separate field of operation. At the same time, it is necessary to keep in mind that s 8(1) demonstrates that "corrupt conduct" is not confined to conduct of any person (whether or not a public official) that does, or could, adversely affect the honest and impartial exercise of official functions (s 8(1)(a)) or conduct of a public official that constitutes or involves the dishonest or partial exercise of official functions (s 8(1)(b)). "Corrupt conduct" includes conduct by a public official of a kind described in either or both of s 8(1)(c) and (d). All of that combines to inform the natural and ordinary meaning of "adversely affect" in s 8(2). In that context, the expression appears to have the sense of having an injurious effect upon or otherwise detracting from the exercise of an official function by causing it to fall short of or below a set or given standard. Standing alone in s 8(2), that could mean either to adversely affect something about the manner in which the official function is exercised or to adversely affect the results of the exercise of the official function; or possibly both. Viewed in the context of s 8(1)(b)-(d), however, and the interrelationship between ss 8(1)(b)-(d) and 8(2), it will be seen that what was intended is an adverse effect upon the exercise of an official function by a public official such that the exercise constitutes or involves conduct of the kind identified in s 8(1)(b)-(d). As Basten JA appreciated, the key to the interrelationship between ss 8(1)(b)-(d) and 8(2) is what it is that was sought to be achieved by the omission of "honest or impartial" from s 8(2). Logically, it appears to have been designed to expand the scope of s 8(1) in two respects: by extending the reach of ss 8(1)(c) and 8(1)(d) from public officials (and former public officials) to persons who are not public officials; and by including in the definition of "corrupt conduct" conduct which could adversely affect the exercise of official functions by any public official in either of the respects identified in ss 8(1)(c) and 8(1)(d). Accordingly, the effect of s 8(1) and (2) is to mark out two distinct kinds of conduct as corrupt conduct, as follows: (1) conduct of a public official that: (i) constitutes or involves the dishonest or partial exercise of an official power (s 8(1)(b)); or (ii) constitutes or involves a breach of public trust (s 8(1)(c)); or (iii) involves the misuse of information or material acquired in the course of the public official's official functions (s 8(1)(d)); and (2) conduct of any person, whether a public official or not, which could "adversely affect" the exercise of official functions by any public official in one of the following ways: (i) if the conduct could "adversely affect" the honest or impartial exercise of the official function (s 8(1)(a)); or (ii) if the conduct could otherwise "adversely affect" the exercise of the official function and the conduct could involve one of the matters mentioned in s 8(2)(a)-(y). The symmetry of that structure implies that the expression "adversely affect" in s 8(2) means to adversely affect the exercise of an official function by a public official in such a way that the exercise constitutes or involves conduct of the kind identified in s 8(1)(b)-(d). More precisely, pars (b)-(d) of s 8(1) limit the range of "corrupt conduct" which may be committed by a public official in the exercise of an official power to the three kinds of misconduct delineated in pars (b)-(d). Those three categories of misconduct thereby define the nature of improbity of public officials in the exercise of official functions which the ICAC Act conceives to be anathema to integrity in public administration. Section 8(2) is directed at conduct which adversely affects the exercise of an official function by a public official. Given that pars (b)-(d) of s 8(1) define the extent of improbity of public officials at which the ICAC Act is directed, it is inherently improbable that s 8(2) is directed at any broader range of improbity in the exercise of official functions than is covered by s 8(1)(b)-(d). It is more logical and textually symmetrical to read "adversely affect" in s 8(2) as confined to having an injurious effect upon or otherwise detracting from the probity of the exercise of the official function in any of the senses defined by s 8(1)(b)-(d). That construction is also more consonant with the language of ss 2A and 9 in that it embraces offences which could affect the integrity of public administration and excludes those which could not. Of course, it may be queried why, if s 8(2) is aimed only at conduct which could cause a public official to act in the exercise of an official function in a manner which could involve one or other of the forms of misconduct described in s 8(1)(b)-(d), s 8(2) does not simply provide that conduct is also corrupt conduct if it could adversely affect the exercise of an official function by a public official in that manner. What is the purpose of the added requirement that the conduct could involve one or other of the kinds of offences listed in s 8(2)(a)-(y)? A possible explanation, which would weigh against construing "adversely affect" as limited to having an injurious effect upon or otherwise detracting from the probity of the exercise of the official function in any of the senses defined by s 8(1)(b)-(d), is that Parliament conceived of the heinousness of the offences listed in s 8(2)(a)-(y) as sufficient in itself to regard any offence of that kind as "corrupt conduct" so long as it had or could have an adverse effect howsoever on the efficaciousness of an exercise of an official function by a public official. Given, however, the diverse range of offences listed in s 8(2)(a)-(y), and that, relatively speaking, some might not be particularly serious, that is an unlikely explanation. Each of the matters listed in pars (a)-(y) is capable of being either in itself a diversion from proper administration (as would be the case where the conduct constitutes official misconduct or any of the forms of election misconduct identified) or conduct of a kind that, depending upon the circumstances, could be calculated to have an adverse effect on the probity of the exercise of official functions by public officials in one or more of the ways described in s 8(1)(b)-(d). The matters specified in s 8(2)(a)-(y) are, therefore, matters of a kind that direct particular attention to whether the conduct in question did or could adversely affect the exercise of official functions by a public official engaging in conduct of a kind described in any of s 8(1)(b)-(d). Hence the competing, and more compelling, construction of s 8(2) is that, if the conduct in question "could involve" any of the matters in pars (a)-(y) and if the conduct adversely affects or could adversely affect the probity of the exercise of an official function in one of the ways listed in s 8(1)(b)-(d), the conduct is "corrupt conduct". Both of these conditions must be met in order to satisfy s 8(2). It is not enough to show only that there was conduct by a person (whether or not a public official) that could involve one or more of the matters listed in pars (a)-(y). It is necessary to show also that the conduct did or could adversely affect the exercise of an official function in one of the ways listed in s 8(1)(b)-(d). That view of s 8(2) is also rendered more likely by the realisation that, if "adversely affect ... the exercise of official functions" meant adversely affect howsoever the efficaciousness of the exercise of the official function, as opposed to adversely affect the probity of the exercise of the function, it would result in the inclusion in the definition of "corrupt conduct" of a wide variety of offences having nothing to do with corruption in public administration as that concept is commonly understood. Thus, for example: (1) In any case where a public authority relied on the advice, say, of a fraudulent stockbroker, insurance company or savings institution (just as other institutions and members of the public might do), and was thereby caused to suffer financial loss, the broker, insurance company or savings institution's fraud would count as corrupt conduct under s 8(2)(e) because the authority's financial loss could leave it less able to discharge its official functions. (2) If a thief stole one of a public authority's vehicles – say a garbage truck – the theft would qualify as corrupt conduct under s 8(2)(f) because, having lost the use of the truck, the authority could be rendered less able to discharge its official function of collecting garbage. (3) Any offence of telling lies to a police officer with the object of deflecting the officer from instituting a prosecution would count as corrupt conduct under s 8(2)(g). (4) If the employee of a government contractor – say a computer software contractor – embezzled funds from the contractor, the embezzlement would qualify as corrupt conduct under s 8(2)(h) because the contractor's loss could deplete the contractor's ability to perform the contract and in turn that could lead to a government official being less well equipped with the computer software necessary to perform his or her official functions. (5) Any form of state tax or revenue evasion would qualify as corrupt conduct under s 8(2)(m) because the evasion of tax could deprive state tax officers of the ability to collect the tax evaded and deprive other departments of revenue with which to carry out their functions. (6) Currency violations would count as corrupt conduct under s 8(2)(o) just because they could result in public officials being less able to control the flow of currency. (7) Bankruptcy and company offences would be corrupt conduct under s 8(2)(s) because they could lead to a reduced return in insolvency to a public authority and thereby lessen the authority's capacity to perform its official functions. (8) Any offence of harbouring a criminal would count as corrupt conduct under s 8(2)(t) because it could have a negative effect on the exercise by police officers of their official function of detecting and arresting criminal offenders. (9) Any unlawful killing of a public official or other violent offence committed against a public official (even if wholly unrelated to the official's status or duties) would count as corrupt conduct under s 8(2)(w) because the killing or violence could terminate or inhibit the official's exercise of official functions. Even an act of domestic violence, if committed against a victim employed as a public official, would be corrupt conduct. (10) All forms of treason would be corrupt conduct under s 8(2)(v) because they could compromise the exercise of official functions by public officials. It is not likely that an Act which is avowedly directed to investigating, exposing and preventing corruption affecting public authorities – and for which the justification for the conferral of extraordinary powers on ICAC was said to be the difficulty of discovering and exposing corruption in the nature of a consensual crime of which there is no obvious victim willing to complain – should have the purpose or effect of extending the reach of ICAC to a broad array of crimes having nothing to do with corruption in public administration apart from such direct or indirect effect as they might conceivably have upon the efficaciousness of the honest and impartial exercise of official functions by public officials. The principle of legality, coupled with the lack of a clearly expressed legislative intention to override basic rights and freedoms on such a sweeping scale as ICAC's construction would entail, points strongly against an intention that ICAC's coercive powers should apply to such a wide range of kinds and severity of conduct. So does the impracticality of a body with such a wide jurisdiction effectively discharging its functions. It would be at odds with the objects of the Act reflected in s 2A. It would be inconsistent with the assurances in the extrinsic materials earlier referred to that ICAC was not intended to function as a general crime commission. And, last but by no means least, as Basten JA observed, an extended meaning of "corrupt conduct" would be far removed from the ordinary conception of corruption in public administration. Logically it is more likely and textually it is more consonant with accepted canons of statutory construction that the object of s 8(2) was to extend the reach of ICAC's jurisdiction no further than to offences of the kind listed in s 8(2)(a)-(y) which could adversely affect the probity of the exercise of official functions by public officials in one of the ways described in s 8(1)(b)-(d). Counsel for ICAC criticised that conclusion as in effect rejecting the plain and ordinary meaning of "adversely affect" in favour of an inference impermissibly drawn from the statement of the objects of the ICAC Act in s 2A. The criticism is misplaced. As was earlier observed, "adversely affect" is a protean expression capable of a number of meanings according to the context in which it appears. The technique of statutory construction is to choose from among the range of possible meanings the meaning which Parliament should be taken to have intended. Contrary to counsel's submission, there was and is nothing impermissible about looking to the context in which s 8(2) appears or seeking guidance from the objects of the ICAC Act as stated in s 2A. Rather, as Mason J stated in K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd, it was and is essential to do so: "[T]o read the section in isolation from the enactment of which it forms a part is to offend against the cardinal rule of statutory interpretation that requires the words of a statute to be read in their context: Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation; Attorney-General v Prince Ernest Augustus of Hanover. Problems of legal interpretation are not solved satisfactorily by ritual incantations which emphasize the clarity of meaning which words have when viewed in isolation, divorced from their context. The modern approach to interpretation insists that the context be considered in the first instance, especially in the case of general words, and not merely at some later stage when ambiguity might be thought to arise." Counsel for ICAC further submitted that, even if that were so, "corruption" was an expression of such uncertain connotation – as noted earlier, he suggested that it might mean no more than alteration or marring – that there was no warrant for inferring from the objects of the ICAC Act stated in s 2A that the kind of corrupt conduct defined in s 8(2) is limited accordingly. So to reason, however, is to invert proper processes of construction. It amounts to assuming that the words of s 8(2) are used in their broadest possible sense and then excluding all the contextual indications which imply that they have a more narrow and focussed meaning. Expressions of indefinite connotation are especially susceptible to context. They may and frequently do mean one thing in one legislative context and something quite different in another. To ignore context in those circumstances is calculated to lead to error. For the reasons that have been given, the provisions of the ICAC Act as a whole (including s 2A) operate more harmoniously on the footing that the Act is directed towards promoting the integrity and accountability of public administration in the sense of maintaining probity in the exercise of official functions. That is the context from which the relevant concept of "corruption" emerges. As has been mentioned, counsel for ICAC also criticised the approach of the majority of the Court of Appeal as in effect making the mistake identified in Shin Kobe Maru of seeking to interpret a defined term by reference to the term itself. But, as has been explained, that was not the case. If there were any difficulty with the way in which the majority approached the matter, it was by appearing to apply syllogistic reasoning to identify the meaning of "adversely affect" by reference to the purpose of the Act in circumstances where it is not possible to identify the purpose without reference to the provisions to be interpreted. Counsel for ICAC invoked the observations of Brennan CJ, Gaudron and McHugh JJ in PMT Partners Pty Ltd (In liq) v Australian National Parks and Wildlife Service in support of his submission that one may not depart from the plain and ordinary meaning of "adversely affect" unless it is clearly necessary to do so and, counsel contended, it was not clearly necessary to do so. The problem with that submission is likewise that, so far from having a plain and ordinary meaning, "adversely affect" is a term of uncertain connotation which derives its intended meaning from its context. As their Honours said in PMT Partners, a statutory definition is susceptible to limitation where "clearly required by ... its context, as for example if it is necessary to give effect to the evident purpose of the Act". In context, as demonstrated above, the expression means to affect adversely the probity of the exercise of an official function by a public official in one of the ways described in s 8(1)(b)-(d). Finally, counsel for ICAC invoked s 12A as an indication, he submitted, that ICAC was intended to have very broad powers subject only to the exercise of its discretion to direct its attention to what it considers to be serious corrupt conduct and systemic corrupt conduct. That submission must also be rejected. The fact that ICAC is directed to concentrate on serious and systemic "corrupt conduct" says nothing about the meaning of "corrupt conduct", or at least nothing that aids ICAC's contentions. The possible alternative construction It remains to deal with the possible alternative construction of s 8(2) earlier referred to, according to which the relative clause "and which could involve" would be read as limiting and defining "the exercise of official functions" as opposed to the "conduct". There are at least five reasons why the alternative construction should be rejected. To begin with, it is syntactically difficult to accommodate. The only possible indication that the "which could involve" clause might be directed to the exercise of official functions, as opposed to the conduct, is the change from the pronoun "that", which appears as the first word of the clause "that adversely affects ... the exercise of official functions", to the pronoun "which", which appears as the first word of the clause "which could involve". Of itself, the change in pronoun is not a strong indication of anything. As counsel for ICAC submitted, if the "which could involve" clause were intended to control the exercise of official functions, it is more likely that the conjunction "and" which precedes it would have been deleted. Additionally, the only preceding expression of equal grammatical weight to the "and which could involve" clause is the "that could adversely affect" clause. As a matter of English usage, that implies that the "and which could involve" clause, like the "that could adversely affect" clause, is directed to the conduct. Secondly, to the extent that anything can be drawn from the extrinsic materials, the understanding of s 8(2) expressed in the Explanatory Note relating to the Independent Commission Against Corruption Bill 1988 (No 2) was that the "and which could involve" clause related to the conduct. Thirdly, as has been seen, there are a number of previous decisions in which s 8(2) has been approached expressly or implicitly on the basis that the "and which could involve" clause governs the conduct as opposed to the exercise of official functions. Fourthly, for the reasons already given, if the "that could adversely affect" clause is construed according to its natural and ordinary meaning in the context in which it appears, it limits the operation of s 8(2) to conduct that could have the effect of adversely affecting the probity of the exercise of an official function by a public official in one or other of the ways described in s 8(1)(b)-(d). As such, it renders unlikely that the "and which could involve" clause was intended to impose some further restriction on the nature of the improbity in the exercise of an official function caused by conduct to which s 8(2) is directed. It is more likely that s 8(2) was intended to cover conduct which could adversely affect the probity of the exercise of an official function by a public official in any of the ways described in s 8(1)(b)-(d), provided the conduct satisfies one or other of the descriptions listed in s 8(2)(a)-(y) and, perforce of s 9, that it constitutes or involves a criminal offence or other breach of a relevant standard of conduct. Finally, many of the offences listed in s 8(2)(a)-(y), such as bribery, blackmail, offering secret commissions, treating, tax and revenue evasion, currency violations, drug dealing and illegal gambling, are of a nature which logically could adversely affect the probity of the exercise of an official function by a public official but at the same time are unlikely to be capable of commission by a public official in the exercise of an official function. Conclusion It was not disputed that, if "adversely affect ... the exercise of official functions by any public official" in s 8(2) means adversely affect the probity of the exercise of an official function by a public official in one of the ways listed in s 8(1)(b)-(d), the alleged conduct was not corrupt conduct within the meaning of s 8(2). ICAC sought special leave to appeal against the orders of the Court of Appeal. The application for special leave was referred for argument before an enlarged bench as on an appeal. The respondents submitted that special leave should be refused. But in light of the way in which the disputed question of construction of the ICAC Act should be resolved, it is better that special leave be granted, the appeal treated as instituted and heard instanter and dismissed with costs.