Independent Commission Against Corruption Act 1988

This Act may be cited as the Independent Commission Against Corruption Act 1988.

This Act commences on a day or days to be appointed by proclamation.

The principal objects of this Act are—

to promote the integrity and accountability of public administration by constituting an Independent Commission Against Corruption as an independent and accountable body—

to investigate, expose and prevent corruption involving or affecting public authorities and public officials, and

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

to confer on the Commission special powers to inquire into allegations of corruption.

In this Act—

Assistant Commissioner means an Assistant Commissioner of the Commission appointed under section 6A.

Assistant Inspector means an Assistant Inspector of the Independent Commission Against Corruption, appointed under this Act.

authorised officer has the same meaning as it has in the Law Enforcement (Powers and Responsibilities) Act 2002.

Chief Commissioner means the Chief Commissioner of the Commission appointed under section 5.

Chief Executive Officer means the Chief Executive Officer of the Commission appointed under section 104.

Commission means the Independent Commission Against Corruption constituted by this Act.

Commissioner means the Chief Commissioner or other Commissioner of the Commission appointed under section 5.

compulsory examination means a compulsory examination under this Act.

conduct includes neglect, failure and inaction.

corrupt conduct has the meaning given by Part 3.

Inspector means the Inspector of the Independent Commission Against Corruption, appointed under this Act.

investigate includes examine.

investigation means an investigation under this Act, and (without limitation) includes a preliminary investigation referred to in section 20A.

Joint Committee means the joint committee called the Committee on the Independent Commission Against Corruption, constituted under this Act.

local government authority means a council, a county council or a joint organisation within the meaning of the Local Government Act 1993 or any person or body exercising all or any of the functions of such a council, county council or joint organisation.

medical practitioner has the same meaning as in the Health Practitioner Regulation National Law (NSW).

member of staff of the Commission means—

a member of staff appointed by the Chief Commissioner under section 104, or

a person whose services are made use of under section 104A or who performs services for the Commission under that section.

officer of the Commission means—

a Commissioner, or

an Assistant Commissioner, or

a member of staff of the Commission, or

a person engaged by the Commission under section 104B to provide the Commission with services, information or advice.

officer of the Inspector means the Inspector or a member of staff of the Inspector.

premises includes any structure, building, aircraft, vehicle, vessel and place (whether built on or not), and any part thereof.

psychologist has the same meaning as in the Health Practitioner Regulation National Law (NSW).

public authority includes the following—

a Public Service agency or any other government sector agency within the meaning of the Government Sector Employment Act 2013,

a statutory body representing the Crown,

(Repealed)

an auditable entity within the meaning of the Government Sector Audit Act 1983,

a local government authority,

the NSW Police Force,

a body, or the holder of an office, declared by the regulations to be a body or office within this definition.

public inquiry means a public inquiry under this Act.

public official means an individual having public official functions or acting in a public official capacity, and includes any of the following—

the Governor (whether or not acting with the advice of the Executive Council),

a person appointed to an office by the Governor,

a Minister of the Crown, a member of the Executive Council or a Parliamentary Secretary,

a member of the Legislative Council or of the Legislative Assembly,

a person employed by the President of the Legislative Council or the Speaker of the Legislative Assembly or both,

a person employed under the Members of Parliament Staff Act 2013,

a judge or the holder of any other judicial office (whether exercising judicial, ministerial or other functions),

a person employed in a Public Service agency or any other government sector agency within the meaning of the Government Sector Employment Act 2013,

an individual who constitutes or is a member of a public authority,

a person in the service of the Crown or of a public authority,

an individual entitled to be reimbursed expenses, from a fund of which an account mentioned in paragraph (d) of the definition of public authority is kept, of attending meetings or carrying out the business of any body constituted by an Act,

a member of the NSW Police Force,

an accreditation authority or a registered certifier within the meaning of the Building and Development Certifiers Act 2018,

an auditor within the meaning of the Water Industry Competition Act 2006,

the holder of an office declared by the regulations to be an office within this definition,

an employee of or any person otherwise engaged by or acting for or on behalf of, or in the place of, or as deputy or delegate of, a public authority or any person or body described in any of the foregoing paragraphs.

search warrant means a search warrant issued under this Act.

task force includes a body of persons that is similar to a task force, however the body is described.

Note.

The Interpretation Act 1987 contains definitions and other provisions that affect the interpretation and application of this Act.

In this Act—

a reference to a function includes a reference to a power, authority and duty, and

a reference to the exercise of a function includes, where the function is a duty, a reference to the performance of the duty.

Notes included in this Act do not form part of this Act.

There is constituted by this Act a corporation with the corporate name of the Independent Commission Against Corruption.

The Commission has the functions conferred or imposed on it by or under this or any other Act.

The Commission consists of a Chief Commissioner and 2 other Commissioners appointed by the Governor.

The Chief Commissioner is required to be consulted on the persons to be appointed as the 2 other Commissioners.

A Commissioner has and may exercise the functions conferred or imposed on a Commissioner by or under this or any other Act.

Schedule 1 contains provisions relating to the Commissioners.

Except as otherwise provided by this section, the functions of the Commission are exercisable by a Commissioner, and any act, matter or thing done in the name of, or on behalf of, the Commission by a Commissioner is taken to have been done by the Commission.

A decision of the Commission to conduct a public inquiry under section 31 must be authorised by the Chief Commissioner and at least one other Commissioner.

Any such authorisation may be given in respect of a particular public inquiry or in respect of any public inquiry for a particular investigation or matter.

An Assistant Commissioner may, at the request of a Commissioner, act for the Commissioner for the purpose of giving any such authorisation if the Commissioner considers that there may be a conflict of interest in the matter.

A decision of the Commission referred to in subsection (2) is presumed to have been duly authorised under that subsection unless the contrary is established.

Except as provided by subsection (2), the decision of the Chief Commissioner prevails in the event of any inconsistency in the decisions of the Commissioners.

A reference in this Act to a compulsory examination or public inquiry before the Commission or anything done or omitted by, to or in relation to the Commission includes a reference to a compulsory examination or public inquiry before, or a thing done or omitted by, to or in relation to, a Commissioner or another officer of the Commission having authority in the circumstances.

The Governor may, with the concurrence of the Chief Commissioner, appoint one or more Assistant Commissioners of the Commission.

An Assistant Commissioner has and may exercise the functions conferred or imposed on an Assistant Commissioner by or under this or any other Act.

An Assistant Commissioner is to assist the Commission, as the Chief Commissioner requires.

Schedule 1 contains provisions relating to the Assistant Commissioners.

The Chief Executive Officer is responsible for the day to day management of the affairs of the Commission and for the implementation of the decisions of the Commissioners and Assistant Commissioners.

For the purposes of this Act, corrupt conduct is any conduct which falls within the description of corrupt conduct in section 8, but which is not excluded by section 9.

Conduct comprising a conspiracy or attempt to commit or engage in conduct that would be corrupt conduct under section 8 shall itself be regarded as corrupt conduct under section 8.

Conduct comprising such a conspiracy or attempt is not excluded by section 9 if, had the conspiracy or attempt been brought to fruition in further conduct, the further conduct could constitute or involve an offence or grounds referred to in that section.

Corrupt conduct is—

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

any conduct of a public official that constitutes or involves the dishonest or partial exercise of any of his or her official functions, or

any conduct of a public official or former public official that constitutes or involves a breach of public trust, or

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.

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—

official misconduct (including breach of trust, fraud in office, nonfeasance, misfeasance, malfeasance, oppression, extortion or imposition),

bribery,

blackmail,

obtaining or offering secret commissions,

fraud,

theft,

perverting the course of justice,

embezzlement,

election bribery,

election funding offences,

election fraud,

treating,

tax evasion,

revenue evasion,

currency violations,

illegal drug dealings,

illegal gambling,

obtaining financial benefit by vice engaged in by others,

bankruptcy and company violations,

harbouring criminals,

forgery,

treason or other offences against the Sovereign,

homicide or violence,

matters of the same or a similar nature to any listed above,

any conspiracy or attempt in relation to any of the above.

Corrupt conduct is also any conduct of any person (whether or not a public official) that impairs, or that could impair, public confidence in public administration and which could involve any of the following matters—

collusive tendering,

fraud in relation to applications for licences, permits or other authorities under legislation designed to protect health and safety or the environment or designed to facilitate the management and commercial exploitation of resources,

dishonestly obtaining or assisting in obtaining, or dishonestly benefiting from, the payment or application of public funds for private advantage or the disposition of public assets for private advantage,

defrauding the public revenue,

fraudulently obtaining or retaining employment or appointment as a public official.

Conduct may amount to corrupt conduct under subsection (1), (2) or (2A) even though it occurred before the commencement of that 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.

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. This subsection extends to a person seeking to become a public official even if the person fails to become a public official.

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) or (2A) refer to—

matters arising in the State or matters arising under the law of the State, or

matters arising outside the State or outside Australia or matters arising under the law of the Commonwealth or under any other law.

The specific mention of a kind of conduct in a provision of this section shall not be regarded as limiting or expanding the scope of any other provision of this section.