Gamage v Riashi [2025] NSWCA 84
At issue was whether ICAC could itself launch prosecutions against persons it had investigated. Basten AJA answered ‘no’. There was no express or incidental power permitting ICAC to launch prosecutions14. This was despite the fact later parliamentary debates on amendments had referred to the ‘practice’ of ICAC commencing prosecutions which were later to be taken over by the DPP.
The judge said (at [39]) that the extent of the alleged practice was unknown. In any case, however, a mere practice ‘cannot affect the proper construction of legislation’. This outcome aligns with courts not deferring to an administrator’s view of the law15.
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Footnotes:
14 Shanahan (1957) 96 CLR 245 (250), Balog (1990) 169 CLR 625 (635) quoted.
15 AEU [2012] HCA 3 [33], City of Enfield [2000] HCA 5 [43], BDW [33.5].