The High Court of Australia will decide whether ICAC acted unlawfully and without power in the case against Mount Gambier MP Troy Bell.
Mr Bell has pleaded not guilty to misappropriating $2m in public funds while working for an independent learning centre before he entered parliament.
In the lead up to his trial, Marie Shaw QC for Mr Bell, challenged the legality of techniques used by ICAC to investigate the MP.
Mrs Shaw asked for a permanent stay of proceedings because of what she said was endemic unlawfulness in the investigation and subsequent prosecution.
In 2020, Judge Chapman of the District Court dismissed the permanent stay application, but in a scathing assessment of ICAC ruled the process of referring matters directly to the DPP for prosecution, bypassing police, was unlawful.
She also found the involvement of ICAC investigators in the prosecution, after the matter had been referred, was beyond their powers.
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“My decision not to grant a stay is not to condone the direct referral to the DPP, the bypassing of SAPOL involvement and the engagement of the ICAC in the criminal proceedings, but rather, to recognise that a stay will only be granted in very rare circumstances,” Judge Chapman said.
“I have found there was unlawful exercise of powers, however, that on its own is not sufficient for a stay.”
The Director of Public Prosecutions Mr Hinton QC conceded that mistakes had been made by ICAC investigators during their probe into Mr Bell but said they should not result in his trial being halted.
Mr Hinton asked Judge Chapman to refer the case as a question of law to the full sitting of the Supreme Court as a “matter of urgency” as it had “paralysed” several ICAC investigations and threw into doubt landmark corruption prosecutions.
The Supreme Court overturned Judge Chapman’s decision, however Mr Bell quickly applied to the High Court for special leave to appeal.
That application was granted on Friday, the only case approved on the day.
If the High Court upholds Judge Chapman’s initial finding, a number of the corruption watchdog’s prosecutions could be thrown into disarray.
A timeline for the landmark case has yet to be determined.
