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Appendix 5
Definition of corruption in the Independent Commission Against
Corruption Act 1998 No. 35 (NSW)
7 Corrupt
conduct
1) For the
purposes of this Act, corrupt conduct is any conduct which falls within the
description of corrupt conduct in either or both of subsections (1) and (2) of
section 8, but which is not excluded by section 9.
2) Conduct
comprising a conspiracy or attempt to commit or engage in conduct that would be
corrupt conduct under section 8 (1) or (2) shall itself be regarded as corrupt
conduct under section 8 (1) or (2).
3) 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.
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 could
involve 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, 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.
2) It does
not matter that proceedings or action for such an offence can no longer be
brought or continued, or that action for such dismissal, dispensing or other
termination can no longer be taken.
3) For the
purposes of this section:
applicable code of conduct
means, in relation to:
a) a Minister
of the Crown—a ministerial code of conduct prescribed or adopted for the
purposes of this section by the regulations, or
b) a member
of the Legislative Council or of the Legislative Assembly (including a Minister
of the Crown)—a code of conduct adopted for the purposes of this section by
resolution of the House concerned.
criminal offence
means a criminal offence under the law of the State or under any other law
relevant to the conduct in question.
disciplinary offence
includes any misconduct, irregularity, neglect of duty, breach of discipline or
other matter that constitutes or may constitute grounds for disciplinary action
under any law.
4) Subject to
subsection (5), conduct of a Minister of the Crown or a member of a House of
Parliament which falls within the description of corrupt conduct in section 8
is not excluded by this section if it is conduct that would cause a reasonable
person to believe that it would bring the integrity of the office concerned or of
Parliament into serious disrepute.
5) Without
otherwise limiting the matters that it can under section 74A (1) include in a
report under section 74, the Commission is not authorised to include a finding
or opinion that a specified person has, by engaging in conduct of a kind
referred to in subsection (4), engaged in corrupt conduct, unless the
Commission is satisfied that the conduct constitutes a breach of a law (apart
from this Act) and the Commission identifies that law in the report.
6) A
reference to a disciplinary offence in this section and sections 74A and 74B
includes a reference to a substantial breach of an applicable requirement of a
code of conduct required to be complied with under section 440 (5) of the Local
Government Act 1993, but does not include a reference to any other breach of
such a requirement.
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