The Independent Commission Against Corruption (ICAC) plays a critical role in maintaining integrity and public confidence in New South Wales public administration. However, many people are uncertain about what legally constitutes “corrupt conduct” and when ICAC has jurisdiction to investigate.
The Independent Commission Against Corruption Act 1988 (NSW) provides a comprehensive definition of corrupt conduct, while also placing important limits on the Commission’s powers. Understanding these provisions is essential for public officials, government agencies, contractors, businesses dealing with government, and members of the public.
What Is Corrupt Conduct?
Section 7 of the Independent Commission Against Corruption Act 1988 provides that corrupt conduct is conduct that falls within the definition contained in section 8 and is not excluded by section 9.
The Act also makes it clear that a conspiracy or attempt to engage in corrupt conduct may itself amount to corrupt conduct, even if the intended misconduct is never completed.
Conduct That May Amount to Corrupt Conduct
Section 8 contains a broad definition designed to capture conduct that undermines the integrity of public administration.
Corrupt conduct includes conduct by any person—not only public officials—that adversely affects, or could adversely affect, the honest or impartial exercise of official functions by a public official or public authority.
Examples include conduct involving:
- bribery;
- fraud;
- blackmail;
- theft;
- obtaining or offering secret commissions;
- forgery;
- embezzlement;
- election bribery and election fraud;
- tax or revenue evasion;
- illegal drug dealing;
- harbouring criminals;
- perverting the course of justice;
- company and bankruptcy offences; and
- conspiracies or attempts to engage in any of these activities.
The legislation also captures dishonest conduct by public officials themselves, including:
- the dishonest or partial exercise of official functions;
- breaches of public trust; and
- misuse of confidential information or material obtained through public office.
Conduct That Impairs Public Confidence
The definition extends beyond traditional criminal corruption.
Section 8 also identifies conduct capable of impairing public confidence in public administration, including:
- collusive tendering;
- fraud involving licences, permits or regulatory approvals;
- dishonestly obtaining public funds or public assets for private benefit;
- defrauding public revenue; and
- fraudulently obtaining or retaining employment as a public official.
These provisions recognise that public confidence can be undermined even where the conduct extends beyond conventional bribery or fraud.
Corrupt Conduct Is Not Limited to Public Officials
A common misconception is that only government employees can engage in corrupt conduct.
The Act expressly provides that conduct by private individuals, businesses, contractors or consultants may constitute corrupt conduct where it adversely affects the exercise of official functions by a public official or public authority.
For example, a private company that offers a bribe to secure a government contract may engage in corrupt conduct, even though none of its employees are public officials.
Conduct Outside New South Wales
The legislation also has a broad geographical operation.
Conduct occurring outside New South Wales—or even outside Australia—may still amount to corrupt conduct where it affects New South Wales public administration or otherwise falls within the statutory definition.
Similarly, conduct may amount to corrupt conduct even if it occurred before a person became a public official where it later affects the exercise of that person’s official functions.
Important Limits on ICAC’s Jurisdiction
Although the definition of corrupt conduct is broad, section 9 imposes significant limitations.
Conduct will not amount to corrupt conduct unless it could constitute or involve at least one of the following:
- a criminal offence;
- a disciplinary offence;
- reasonable grounds for dismissing or otherwise terminating the employment of a public official; or
- in the case of Ministers or Members of Parliament, a substantial breach of an applicable code of conduct.
Importantly, it is irrelevant that criminal proceedings or disciplinary action can no longer be commenced. Historical conduct may still fall within ICAC’s jurisdiction if the statutory requirements are otherwise satisfied.
Why These Definitions Matter
The statutory definition of corrupt conduct determines the scope of ICAC’s investigative powers.
Not every instance of poor decision-making, maladministration or unethical behaviour will amount to corrupt conduct under the Act. Instead, the conduct must satisfy both the broad definition contained in section 8 and the limiting provisions contained in section 9.
These distinctions are important because an ICAC investigation can have significant legal, professional and reputational consequences for individuals and organisations.
Need Legal Advice?
Allegations of corrupt conduct can have serious implications for public officials, government contractors and private individuals.
If you are the subject of an ICAC investigation, have been requested to provide evidence, or require advice about your legal obligations under the Independent Commission Against Corruption Act 1988 (NSW), obtaining experienced legal advice at an early stage is essential.
Our experienced lawyers regularly advise clients in relation to corruption investigations, public law issues, disciplinary proceedings and related criminal matters.
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