New South Wales act

Independent Commission Against Corruption Act 1988

In ForceNSW

Jurisdiction

New South Wales

Act Number

35 of 1988

Collection

act

Plain English Summary

8/10 complexity

The instrument tightens how the Independent Commission Against Corruption investigates, controls publication and reports, and how Commissioners are appointed, while centralising discretion over confidentiality and evidence. It creates a consolidated protections regime for people who complain to or assist the Commission/Inspector, with civil and criminal remedies, injunctions and confidentiality safeguards.

It chiefly affects public officials, employers, witnesses, the Commission/Inspector and Parliament (and corporations facing higher penalties). It matters because it reallocates compliance costs, reduces legal deterrents to disclosure, and concentrates secrecy-and-reporting authority in the Commission.

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What it does

The Independent Commission Against Corruption Act 1988 (the Act) establishes the Independent Commission Against Corruption (the Commission) as a statutory corporation (s 4(1)) with the principal objects of promoting the integrity and accountability of public administration. Section 2A, inserted in 2005, expressly states these objects as (a) constituting an independent and accountable body to investigate, expose and prevent corruption involving or affecting public authorities and public officials, to educate those authorities, officials and the public about corruption and its detrimental effects, and (b) conferring on the Commission special powers to inquire into allegations of corruption.

The Commission's core functions are set out in s 13(1). It must investigate any allegation or complaint, or any circumstances that in its opinion imply that corrupt conduct (or conduct liable to allow, encourage or cause corrupt conduct, or conduct connected with corrupt conduct) may have occurred, may be occurring or may be about to occur (s 13(1)(a)). It must also investigate matters referred by both Houses of Parliament (s 13(1)(b)), communicate results to appropriate authorities (s 13(1)(c)), examine laws, practices and procedures of public authorities to facilitate discovery of corrupt conduct and secure revisions (s 13(1)(d)), and provide instruction, advice and assistance on eliminating corrupt conduct and promoting integrity (s 13(1)(e)-(g)). Educational and advisory roles extend to the community (s 13(1)(h)-(j)), and it may conduct programs referred by Parliament (s 13(1)(k)).

Investigations are to determine whether corrupt conduct has occurred, is occurring or is about to occur, whether laws need changing, and whether methods of work, practices or procedures allow, encourage or cause corrupt conduct (s 13(2)). Importantly, s 13(2A) clarifies that the Commission is not required to make a positive finding that corrupt conduct has occurred. It may make findings and form opinions on the basis of its investigations, including whether the Director of Public Prosecutions should be advised on prosecutions, whether other action should be taken, or findings of fact (s 13(3) and (5)). Recommendations for action may be formulated (s 13(3)), but s 13(4) prohibits findings or opinions prevented by ss 74B or 74BA, with only s 9(5) and s 13(4) restricting these powers.

Current sections

Direct links to the current provisions in Independent Commission Against Corruption Act 1988.

228

Part 1

Preliminary

Part 1 Preliminary

Name of Act

1 Name of Act

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

Commencement

2 Commencement

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

Principal objects of Act

2A Principal objects of Act

The principal objects of this Act are—

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

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

(ii) 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

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

s 2A: Ins 2005 No 10, Sch 1 [1].

Definitions

3 Definitions

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

(b) 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) a Commissioner, or

(b) an Assistant Commissioner, or

(c) a member of staff of the Commission, or

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

(b) a statutory body representing the Crown,

(c) (Repealed)

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

(e) a local government authority,

(f) the NSW Police Force,

(g) 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—

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

(b) a person appointed to an office by the Governor,

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

(d) a member of the Legislative Council or of the Legislative Assembly,

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

(e1) a person employed under the Members of Parliament Staff Act 2013,

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

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

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

(i) a person in the service of the Crown or of a public authority,

(j) 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,

(k) a member of the NSW Police Force,

(k1) an accreditation authority or a registered certifier within the meaning of the Building and Development Certifiers Act 2018,

(k2) an auditor within the meaning of the Water Industry Competition Act 2006,

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

(m) 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.

(2) In this Act—

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

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

(3) Notes included in this Act do not form part of this Act.

s 3: Am 1995 No 11, Sch 1; 1996 No 29, Sch 3 (1) (2); 1997 No 152, Sch 4.17; 2001 No 121, Sch 2.125 [1]; 2002 No 103, Sch 4.47 [1]; 2004 No 114, Sch 2.9 [1] [2]; 2005 No 10, Sch 1 [2]–[4]; 2006 No 2, Sch 5.5 [1] [2]; 2006 No 120, Sch 3.12 [1]; 2011 No 62, Sch 3.14 [1]; 2013 No 41, Sch 3.3; 2013 No 72, Sch 2 [1]; 2014 No 33, Sch 3.14 [1] [2]; 2016 No 65, Sch 1 [1]–[3]; 2017 No 65, Sch 2.13 [1] [2]; 2018 No 63, Sch 3.7; 2018 No 70, Sch 4.54; 2021 No 26, Sch 2.6; 2022 No 14, Sch 4[1]; 2025 No 61, Sch 2.51[1].

Part 2

Constitution and management of Commission

Part 2 Constitution and management of Commission

pt 2: Subst 2016 No 65, Sch 1 [4].

Constitution of Commission

4 Constitution of Commission

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

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

s 4: Am 2005 No 10, Sch 1 [5]. Subst 2016 No 65, Sch 1 [4].

The Commissioners

5 The Commissioners

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

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

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

(4) Schedule 1 contains provisions relating to the Commissioners.

s 5: Subst 2016 No 65, Sch 1 [4].

5A

5A (Repealed)

Exercise of Commission’s functions

6 Exercise of Commission’s functions

(1) 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.

(2) 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.

(3) 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.

(4) 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.

(5) 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.

(6) 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.

(7) 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.

s 6: Subst 2016 No 65, Sch 1 [4].

Assistant Commissioners

6A Assistant Commissioners

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

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

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

(4) Schedule 1 contains provisions relating to the Assistant Commissioners.

s 6A: Ins 2016 No 65, Sch 1 [4].

Management of affairs of Commission

6B Management of affairs of Commission

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.

s 6B: Ins 2016 No 65, Sch 1 [4].

Part 3

Corrupt conduct

Part 3 Corrupt conduct

Corrupt conduct

7 Corrupt conduct

(1) 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.

(2) 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.

(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.

s 7: Am 2015 No 28, Sch 1 [1] [2].

General nature of corrupt conduct

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.

(2A) 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—

(a) collusive tendering,

(b) 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,

(c) 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,

(d) defrauding the public revenue,

(e) fraudulently obtaining or retaining employment or appointment as a public official.

(3) 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.

(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. This subsection extends to a person seeking to become a public official even if the person fails to become 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) or (2A) 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 or expanding the scope of any other provision of this section.

s 8: Am 1990 No 80, Sch 1 (6); 2015 No 28, Sch 1 [3]–[7].

Limitation on nature of corrupt conduct

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 Parliamentary Secretary 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 or Parliamentary Secretary—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 or Parliamentary Secretary)—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 Parliamentary Secretary 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.

s 9: Am 1994 No 86, sec 3 (a)–(c); 2004 No 73, Sch 4; 2005 No 10, Sch 1 [6]; 2022 No 77, Sch 1.2[1]–[3].

Complaints about possible corrupt conduct

10 Complaints about possible corrupt conduct

(1) Any person may make a complaint to the Commission about a matter that concerns or may concern corrupt conduct.

Note 1.

Protections may be available under the following provisions to persons who make a complaint under this section—

(a) the Public Interest Disclosures Act 2022, Part 3—if the complaint is a public interest disclosure,

(b) Part 8A—if the making of the complaint is protected action within the meaning of the Part.

Note 2.

The Public Interest Disclosures Act 2022, section 58 confers additional investigative powers on the Commission in relation to certain public interest disclosures.

(2) The Commission may investigate a complaint or decide that a complaint need not be investigated.

(3) The Commission may discontinue an investigation of a complaint.

(4) If a prisoner informs the governor of the prison that the prisoner wishes to make a complaint under this section, the governor of the prison must—

(a) take all steps necessary to facilitate the making of the complaint, and

(b) send immediately to the Commission, unopened, any written matter addressed to the Commission.

(5) For the purposes of subsection (4), prisoner and governor of a prison have the same meanings as inmate and governor have in the Crimes (Administration of Sentences) Act 1999.

s 10: Am 1990 No 80, Sch 1 (1); 1999 No 94, Sch 4.30 [1]; 2022 No 14, Sch 4[2].

Duty to notify Commission of possible corrupt conduct

11 Duty to notify Commission of possible corrupt conduct

(1) This section applies to the following persons—

(a) the Ombudsman,

(b) the Commissioner of Police,

(c) the principal officer of a public authority,

(d) an officer who constitutes a public authority,

(e) a Minister of the Crown.

(2) A person to whom this section applies is under a duty to report to the Commission any matter that the person suspects on reasonable grounds concerns or may concern corrupt conduct.

(2A) Despite subsection (2), the Commissioner of Police is not under a duty to report to the Commission any matter that concerns or may concern corrupt conduct of a police officer or administrative employee (within the meaning of the Law Enforcement Conduct Commission Act 2016) unless the Commissioner of Police suspects on reasonable grounds that the matter also concerns or may concern corrupt conduct of another public official.

(2B) Despite subsection (2), the Commissioner for the New South Wales Crime Commission (the Crime Commissioner) is not under a duty to report to the Commission any matter that concerns or may concern corrupt conduct of a Crime Commission officer (within the meaning of the Law Enforcement Conduct Commission Act 2016) unless the Crime Commissioner suspects on reasonable grounds that the matter also concerns or may concern corrupt conduct of another public official.

(3) The Commission may issue guidelines as to what matters need or need not be reported.

(3A) A Minister of the Crown who is under a duty under this section to report a matter may (despite subsection (2)) report the matter either to the Commission or to the head of any agency responsible to the Minister.

(4) This section has effect despite any duty of secrecy or other restriction on disclosure.

(5) The regulations may prescribe who is the principal officer of a public authority, but in the absence of regulations applying in relation to a particular public authority, the principal officer is the person who is the head of the authority, its most senior officer or the person normally entitled to preside at its meetings.

(6) The regulations may prescribe the principal officer of a separate office within a public authority as the principal officer of the public authority in relation to matters concerning the separate office.

s 11: Am 2006 No 64, Sch 2 [1]; 2008 No 60, Sch 2 [1]; 2008 No 123, Sch 1 [1]–[4]; 2009 No 95, Sch 1 [1]; 2016 No 61, Sch 6.25 [1].

Part 4

Functions of Commission

Part 4 Functions of Commission

Division 1

Functions generally

Division 1 Functions generally

Public interest to be paramount

12 Public interest to be paramount

In exercising its functions, the Commission shall regard the protection of the public interest and the prevention of breaches of public trust as its paramount concerns.

12A

Serious corrupt conduct and systemic corrupt conduct

12A Serious corrupt conduct and systemic corrupt conduct

In exercising its functions, the Commission is, as far as practicable, to direct its attention to serious corrupt conduct and systemic corrupt conduct and is to take into account the responsibility and role other public authorities and public officials have in the prevention of corrupt conduct.

s 12A: Ins 2005 No 10, Sch 1 [7]. Am 2008 No 123, Sch 1 [5].

Principal functions

13 Principal functions

(1) The principal functions of the Commission are as follows—

(a) to investigate any allegation or complaint that, or any circumstances which in the Commission’s opinion imply that—

(i) corrupt conduct, or

(ii) conduct liable to allow, encourage or cause the occurrence of corrupt conduct, or

(iii) conduct connected with corrupt conduct,

may have occurred, may be occurring or may be about to occur,

(b) to investigate any matter referred to the Commission by both Houses of Parliament,

(c) to communicate to appropriate authorities the results of its investigations,

(d) to examine the laws governing, and the practices and procedures of, public authorities and public officials, in order to facilitate the discovery of corrupt conduct and to secure the revision of methods of work or procedures which, in the opinion of the Commission, may be conducive to corrupt conduct,

(e) to instruct, advise and assist any public authority, public official or other person (on the request of the authority, official or person) on ways in which corrupt conduct may be eliminated and the integrity and good repute of public administration promoted,

(f) to advise public authorities or public officials of changes in practices or procedures compatible with the effective exercise of their functions that the Commission thinks necessary to reduce the likelihood of the occurrence of corrupt conduct and to promote the integrity and good repute of public administration,

(g) to co-operate with public authorities and public officials in reviewing laws, practices and procedures with a view to reducing the likelihood of the occurrence of corrupt conduct and to promoting the integrity and good repute of public administration,

(h) to educate and advise public authorities, public officials and the community on strategies to combat corrupt conduct and to promote the integrity and good repute of public administration,

(i) to educate and disseminate information to the public on the detrimental effects of corrupt conduct and on the importance of maintaining the integrity and good repute of public administration,

(j) to enlist and foster public support in combating corrupt conduct and in promoting the integrity and good repute of public administration,

(k) to develop, arrange, supervise, participate in or conduct such educational or advisory programs as may be described in a reference made to the Commission by both Houses of Parliament.

(1A) Subsection (1) (d) and (f)–(h) do not extend to the conduct of police officers, Crime Commission officers or administrative employees within the meaning of the Law Enforcement Conduct Commission Act 2016.

(2) The Commission is to conduct its investigations with a view to determining—

(a) whether any corrupt conduct, or any other conduct referred to in subsection (1) (a), has occurred, is occurring or is about to occur, and

(b) whether any laws governing any public authority or public official need to be changed for the purpose of reducing the likelihood of the occurrence of corrupt conduct, and

(c) whether any methods of work, practices or procedures of any public authority or public official did or could allow, encourage or cause the occurrence of corrupt conduct.

(2A) Subsection (2) (a) does not require the Commission to make a finding, on the basis of any investigation, that corrupt conduct, or other conduct, has occurred, is occurring or is about to occur.

(3) The principal functions of the Commission also include—

(a) the power to make findings and form opinions, on the basis of the results of its investigations, in respect of any conduct, circumstances or events with which its investigations are concerned, whether or not the findings or opinions relate to corrupt conduct, and

(b) the power to formulate recommendations for the taking of action that the Commission considers should be taken in relation to its findings or opinions or the results of its investigations.

(3A) The Commission may make a finding that a person has engaged or is engaging in corrupt conduct of a kind described in paragraph (a), (b), (c) or (d) of section 9 (1) only if satisfied that a person has engaged in or is engaging in conduct that constitutes or involves an offence or thing of the kind described in that paragraph.

(4) The Commission is not to make a finding, form an opinion or formulate a recommendation which section 74B or 74BA prevents the Commission from including in a report, but section 9 (5) and this section are the only restrictions imposed by this Act on the Commission’s powers under subsection (3).

(5) The following are examples of the findings and opinions permissible under subsection (3) but do not limit the Commission’s power to make findings and form opinions—

(a) findings that particular persons have engaged, are engaged or are about to engage in corrupt conduct,

(b) opinions as to—

(i) whether the advice of the Director of Public Prosecutions should be sought in relation to the commencement of proceedings against particular persons for criminal offences against laws of the State, or

(ii) whether consideration should or should not be given to the taking of other action against particular persons,

(c) findings of fact.

s 13: Am 1990 No 80, Sch 1 (7); 2005 No 10, Sch 1 [8]–[11]; 2006 No 64, Sch 2 [2]; 2008 No 60, Sch 2 [2]; 2015 No 28, Sch 1 [8] [9]; 2016 No 61, Sch 6.25 [2].

13A

Function of investigating matters referred by Electoral Commission

13A Function of investigating matters referred by Electoral Commission

(1) The Commission has the function of investigating conduct that may involve possible criminal offences under the Electoral Act 2017, the Electoral Funding Act 2018 or the Lobbying of Government Officials Act 2011 that the Electoral Commission refers to the Commission for investigation under this section.

(2) The Electoral Commission may refer any such conduct to the Commission for investigation—

(a) if there are reasonable grounds to suspect that the conduct may involve a possible criminal offence to which this section applies (as set out in subsection (9)), or

(b) if the conduct is related to possible corrupt conduct that the Commission is already investigating,

whether or not the time within which proceedings for the possible criminal offence may be instituted has expired.

(3) After a preliminary investigation, the Commission is to discontinue the investigation if—

(a) the conduct does not involve any possible criminal offence to which this section applies and is not related to possible corrupt conduct that the Commission is already investigating, and the Commission is not otherwise authorised to investigate the conduct, or

(b) the Commission determines it should not carry out any further investigation.

(4) Conduct may be referred under this section to the Commission for investigation whether or not it involves corrupt conduct. The fact that the conduct could be so referred does not prevent the Commission from investigating the conduct without a referral if it is otherwise authorised by this Act to do so.

(5) The following matters are to be taken into account in determining whether conduct should be referred under this section for investigation and, if referred, whether the Commission should investigate—

(a) the primary responsibility of the Electoral Commission to investigate and prosecute the possible criminal offences concerned,

(b) the seriousness or systemic nature of the matter being investigated,

(c) the complexity of the matter being investigated,

(d) the relationship between the matter being investigated and any other ongoing investigation of the Electoral Commission,

(e) the relationship between the matter being investigated and any other ongoing investigation of the Commission,

(f) the availability of any other public authority or official with the responsibility or jurisdiction to investigate or prosecute the possible criminal offences concerned,

(g) any other relevant matter.

(6) The Electoral Commission, when it refers conduct for investigation under this section, must provide the Commission with a statement of the reasons it referred the matter for investigation.

(7) The Commission, when it determines to investigate conduct referred under this section after a preliminary investigation, must provide the Electoral Commission with a statement of the reasons it determined to investigate the conduct.

(8) A report of the Commission under section 74 that relates to an investigation under this section is to include the statements of reasons under subsections (6) and (7) in relation to the investigation.

(9) This section applies to the following criminal offences—

(a) Electoral Funding Act 2018—

section 138 (7) (Provision of false or misleading documents and information),

section 141 (Offences relating to disclosures of political donations and electoral expenditure),

section 142 (Offences relating to assisting others lodging claims or disclosures),

section 143 (Offences relating to caps on donations and expenditure),

section 144 (1) (Offence relating to scheme to circumvent the donation or expenditure prohibitions or restrictions),

section 145 (1) (Unlawful acts relating to donations etc),

section 146 (False or misleading information),

(b) Electoral Act 2017—

section 72 (False statements),

section 95 (4) (False child protection declarations),

section 128 (4) (Questions to be put if voter challenged),

section 160 (Protection of computer hardware and software),

section 183 (Printing, publishing and distributing non-complying electoral material),

section 189 (Encouraging ticks or crosses on ballot papers),

section 209 (Electoral bribery, treating and selling of votes),

section 210 (Interference with right to vote),

section 212 (Impersonation and multiple voting),

section 215 (Display, publish or distribute material falsely appearing to be made by Electoral Commission),

section 216 (False or misleading declaration and statements),

section 218 (Forging or uttering electoral papers),

section 219 (Offence of stuffing ballot box),

(c) Lobbying of Government Officials Act 2011—

section 15 (Ban on success fees),

section 18 (Cooling-off period for ex-Ministers and ex-Parliamentary Secretaries),

(d) an offence against any of the above Acts, or the regulations under any of the above Acts, that is prescribed by the regulations for the purposes of this section.

Section 117 (4) does not apply to a regulation made under paragraph (d).

s 13A: Ins 2015 No 28, Sch 1 [10]. Am 2017 No 66, Sch 8.13 [1] [2]; 2018 No 20, Sch 3.5 [1] [2].

Other functions of Commission

14 Other functions of Commission

(1) Other functions of the Commission are as follows—

(a) to gather and assemble, during or after the discontinuance or completion of its investigations, evidence that may be admissible in the prosecution of a person for a criminal offence against a law of the State in connection with corrupt conduct and to furnish such evidence to the Director of Public Prosecutions,

(a1) to gather and assemble, during or after the discontinuance or completion of an investigation into conduct under section 13A, evidence that may be admissible in the prosecution of a person for a criminal offence in connection with the conduct and to furnish such evidence to the Electoral Commission and (if considered appropriate) to the Director of Public Prosecutions,

(b) to furnish, during or after the discontinuance or completion of its investigations, other evidence obtained in the course of its investigations (being evidence that may be admissible in the prosecution of a person for a criminal offence against a law of another State, the Commonwealth or a Territory) to the Attorney General or to the appropriate authority of the jurisdiction concerned.

(1A) Evidence of the kind referred to in subsection (1) (a1) or (b) may be accompanied by any observations that the Commission considers appropriate and (in the case of evidence furnished to the Attorney General or the Electoral Commission) recommendations as to what action the Commission considers should be taken in relation to the evidence.

(1B) A copy or detailed description of any evidence furnished to the appropriate authority of another jurisdiction, together with a copy of any accompanying observations, is to be furnished to the Attorney General.

(2) If the Commission obtains any information in the course of its investigations relating to the exercise of the functions of a public authority, the Commission may, if it considers it desirable to do so—

(a) furnish the information or a report on the information to the authority or to the Minister for the authority, and

(b) make to the authority or the Minister for the authority such recommendations (if any) relating to the exercise of the functions of the authority as the Commission considers appropriate.

(2A) A copy of any information or report furnished to a public authority under subsection (2), together with a copy of any such recommendation, is to be furnished to the Minister for the authority.

(3) If the Commission furnishes any evidence or information to a person under this section on the understanding that the information is confidential, the person is subject to the secrecy provisions of section 111 in relation to the information.

s 14: Am 1991 No 54, Sch 1 (1); 2011 No 36, Sch 1 [1] [2]; 2015 No 28, Sch 1 [11]–[13].

Task forces

15 Task forces

The Commission may, in connection with its principal functions—

(a) arrange for the establishment of task forces within the State, and

(b) seek the establishment of joint task forces with authorities of the Commonwealth or other States or Territories, and

(c) co-operate with State task forces, Commonwealth task forces, joint task forces or other task forces, and

(d) co-ordinate or co-operate in co-ordinating any such task forces.

Co-operation with other agencies

16 Co-operation with other agencies

(1) In exercising its principal functions relating to the investigation of conduct, the Commission—

(a) shall, as far as practicable, work in co-operation with law enforcement agencies, and

(a1) shall, as far as practicable, work in co-operation with the Electoral Commission in connection with a referral by the Electoral Commission under section 13A, and

(b) may work in co-operation with the Auditor-General, the Ombudsman, the Australian Crime Commission, the Australian Bureau of Criminal Intelligence and such other persons and bodies as the Commission thinks appropriate.

(2) In exercising its other principal functions, the Commission shall, as far as practicable, work in co-operation with the Auditor-General, the Ombudsman, educational institutions, management consultants and such other persons and bodies as the Commission thinks appropriate.

(3) The Commission may consult with and disseminate intelligence and information to law enforcement agencies, the Australian Crime Commission, the Australian Bureau of Criminal Intelligence and such other persons and bodies (including any task force and any member of a task force) as the Commission thinks appropriate.

(4) If the Commission disseminates information to a person or body under this section on the understanding that the information is confidential, the person or body is subject to the secrecy provisions of section 111 in relation to the information.

(5) In this section—

law enforcement agency means—

(a) the NSW Police Force, or

(b) a police force of another State or Territory, or

(c) the Australian Federal Police, or

(d) any other authority or person responsible for the enforcement of the laws of the Commonwealth or of the State, another State or a Territory.

s 16: Am 1990 No 80, Sch 1 (2); 2003 No 13, Sch 1.14; 2005 No 10, Sch 1 [12]; 2011 No 62, Sch 3.14 [1]; 2015 No 28, Sch 1 [14].

Evidence and procedure

17 Evidence and procedure

(1) The Commission is not bound by the rules or practice of evidence and can inform itself on any matter in such manner as it considers appropriate.

(2) The Commission shall exercise its functions with as little formality and technicality as is possible, and, in particular, the Commission shall accept written submissions as far as is possible and compulsory examinations and public inquiries shall be conducted with as little emphasis on an adversarial approach as is possible.

(3) Despite subsection (1), section 127 (Religious confessions) of the Evidence Act 1995 applies to any compulsory examination or public inquiry before the Commission.

s 17: Am 1995 No 27, Sch 1; 2005 No 10, Sch 1 [13].

Court proceedings

18 Court proceedings

(1) The Commission may do any or all of the following—

(a) commence, continue, discontinue or complete any investigation,

(b) furnish reports in connection with any investigation,

(c) do all such acts and things as are necessary or expedient for those purposes,

despite any proceedings that may be in or before any court, tribunal, coroner, Judge of the Local Court or other person.

(2) If the proceedings are proceedings for an indictable offence and are conducted by or on behalf of the Crown, the Commission must, to the extent to which the Commission thinks it necessary to do so to ensure that the accused’s right to a fair trial is not prejudiced—

(a) ensure that, as far as practicable, the investigation is conducted in private during the currency of the proceedings, and

(b) give directions under section 112, having effect during the currency of the proceedings, and

(c) defer making a report to Parliament in relation to the investigation during the currency of the proceedings.

(2A) Subsection (2) does not apply—

(a) (in the case of committal proceedings) before the commencement of the committal hearing, and

(b) (in any other case) after the proceedings cease to be proceedings for the trial of a person before a jury.

(3) This section has effect whether or not the proceedings commenced before or after the relevant investigation commenced and has effect whether or not the Commission or an officer of the Commission is a party to the proceedings.

s 18: Am 1990 No 80, Sch 1 (3); 2001 No 121, Sch 2.125 [2]; 2005 No 10, Sch 1 [14]; 2008 No 107, Sch 29.6; 2017 No 55, Sch 3.5; 2025 No 61, Sch 2.51[2].

Incidental powers

19 Incidental powers

(1) The Commission has power to do all things necessary to be done for or in connection with, or reasonably incidental to, the exercise of its functions, and any specific powers conferred on the Commission by this Act shall not be taken to limit by implication the generality of this section.

(2) The Commission or an officer of the Commission may seek the issue of a warrant under the Surveillance Devices Act 2007.

s 19: Am 2007 No 64, Sch 2.4.

Division 2

Investigations

Division 2 Investigations

Investigations generally

20 Investigations generally

(1) The Commission may conduct an investigation on its own initiative, on a complaint made to it, on a report made to it or on a reference made to it.

(2) The Commission may conduct an investigation even though no particular public official or other person has been implicated.

(3) The Commission may, in considering whether or not to conduct, continue or discontinue an investigation (other than in relation to a matter referred by both Houses of Parliament), have regard to such matters as it thinks fit, including whether or not (in the Commission’s opinion)—

(a) the subject-matter of the investigation is trivial, or

(b) the conduct concerned occurred at too remote a time to justify investigation, or

(c) if the investigation was initiated as a result of a complaint—the complaint was frivolous, vexatious or not in good faith.

(4) (Repealed)

(5) If the Commission decides to discontinue or not to commence an investigation of a complaint or report made to it, the Commission must inform the complainant or officer who made the report in writing of its decision and the reasons for it.

s 20: Am 2005 No 10, Sch 1 [15]; 2006 No 29, Sch 1 [1].

20A

Preliminary investigations

20A Preliminary investigations

(1) An investigation may be in the nature of a preliminary investigation.

(2) A preliminary examination can be conducted, for example, for the purpose of assisting the Commission—

(a) to discover or identify conduct that might be made the subject of a more complete investigation under this Act, or

(b) to decide whether to make particular conduct the subject of a more complete investigation under this Act.

(3) Nothing in this section affects any other provision of this Act.

s 20A: Ins 1996 No 29, Sch 3 (3).

Power to obtain information

21 Power to obtain information

(1) For the purposes of an investigation, the Commission may, by notice in writing served on a public authority or public official, require the authority or official to produce a statement of information.

(2) A notice under this section must specify or describe the information concerned, must fix a time and date for compliance and must specify the person (being a Commissioner, an Assistant Commissioner or any other officer of the Commission) to whom the production is to be made.

(3) The notice may provide that the requirement may be satisfied by some other person acting on behalf of the public authority or public official and may, but need not, specify the person or class of persons who may so act.

s 21: Am 1990 No 80, Sch 1 (4); 2016 No 65, Sch 1 [3].

Power to obtain documents etc

22 Power to obtain documents etc

(1) For the purposes of an investigation, the Commission may, by notice in writing served on a person (whether or not a public authority or public official), require the person—

(a) to attend, at a time and place specified in the notice, before a person (being a Commissioner, an Assistant Commissioner or any other officer of the Commission) specified in the notice, and

(b) to produce at that time and place to the person so specified a document or other thing specified in the notice.

(2) The notice may provide that the requirement may be satisfied by some other person acting on behalf of the person on whom it was imposed and may, but need not, specify the person or class of persons who may so act.

s 22: Am 1990 No 80, Sch 1 (4); 2016 No 65, Sch 1 [3].

Power to enter public premises

23 Power to enter public premises

(1) For the purposes of an investigation, a Commissioner or an officer of the Commission authorised in writing by a Commissioner may, at any time—

(a) enter and inspect any premises occupied or used by a public authority or public official in that capacity, and

(b) inspect any document or other thing in or on the premises, and

(c) take copies of any document in or on the premises.

(2) (Repealed)

(3) The public authority or public official shall make available to a Commissioner or authorised officer such facilities as are necessary to enable the powers conferred by this section to be exercised.

s 23: Am 1989 No 195, Sch 1; 1991 No 38, Sch 2; 2016 No 65, Sch 1 [3].

Privilege as regards information, documents etc

24 Privilege as regards information, documents etc

(1) This section applies where, under section 21 or 22, the Commission requires any person—

(a) to produce any statement of information, or

(b) to produce any document or other thing.

(2) The Commission shall set aside the requirement if it appears to the Commission that any person has a ground of privilege whereby, in proceedings in a court of law, the person might resist a like requirement and it does not appear to the Commission that the person consents to compliance with the requirement.

(3) The person must however comply with the requirement despite—

(a) any rule which in proceedings in a court of law might justify an objection to compliance with a like requirement on grounds of public interest, or

(b) any privilege of a public authority or public official in that capacity which the authority or official could have claimed in a court of law, or

(c) any duty of secrecy or other restriction on disclosure applying to a public authority or public official or a former public authority or public official.

s 24: Am 2013 No 35, Sch 1 [1].

Privilege as regards entry on public premises

25 Privilege as regards entry on public premises

(1) This section applies to the powers of entry, inspection and copying conferred by section 23.

(2) The powers shall not be exercised if it appears to a Commissioner or authorised officer that any person has a ground of privilege whereby, in proceedings in a court of law, the person might resist inspection of the premises or production of the document or other thing and it does not appear to the Commissioner or authorised officer that the person consents to the inspection or production.

(3) The powers may however be exercised despite—

(a) any rule of law which, in proceedings in a court of law, might justify an objection to an inspection of the premises or to production of the document or other thing on grounds of public interest, or

(b) any privilege of a public authority or public official in that capacity which the authority or official could have claimed in a court of law, or

(c) any duty of secrecy or other restriction on disclosure applying to a public authority or public official.

s 25: Am 2016 No 65, Sch 1 [3].

Self-incrimination

26 Self-incrimination

(1) This section applies where, under section 21 or 22, the Commission requires any person—

(a) to produce any statement of information, or

(b) to produce any document or other thing.

(2) If the statement, document or other thing tends to incriminate the person and the person objects to production at the time, neither the fact of the requirement nor the statement, document or thing itself (if produced) may be used in any proceedings against the person (except proceedings for an offence against this Act or except as provided by section 114A (5)).

(3) They may however be used for the purposes of the investigation concerned, despite any such objection.

s 26: Am 2013 No 14, Sch 1 [1].

Injunctions

27 Injunctions

The Supreme Court may, on application made by the Commission, grant an injunction restraining any conduct in which a person (whether or not a public authority or public official) is engaging or in which such a person appears likely to engage, if the conduct is the subject of, or affects the subject of, an investigation or proposed investigation by the Commission.

Provisions relating to injunctions

28 Provisions relating to injunctions

(1) The Supreme Court shall not grant an injunction under section 27 unless it is of the opinion that—

(a) the conduct sought to be restrained is likely to impede the conduct of the investigation or proposed investigation, or

(b) it is necessary to restrain the conduct in order to prevent irreparable harm being done because of corrupt conduct or suspected corrupt conduct.

(2) The Commission shall not be required, as a condition for the granting of an injunction under section 27, to give any undertaking as to damages.

Powers exercisable whether or not compulsory examination or public inquiry being held

29 Powers exercisable whether or not compulsory examination or public inquiry being held

Powers may be exercised under this Division in relation to an investigation whether or not a compulsory examination or public inquiry before the Commission is being held for the purposes of the investigation.

s 29: Am 2005 No 10, Sch 1 [16].

Division 3

Compulsory examinations and public inquiries

Division 3 Compulsory examinations and public inquiries

pt 4, div 3, hdg: Subst 2005 No 10, Sch 1 [17].

Compulsory examinations

30 Compulsory examinations

(1) For the purposes of an investigation, the Commission may, if it is satisfied that it is in the public interest to do so, conduct a compulsory examination.

(2) A compulsory examination is to be conducted by a Commissioner or by an Assistant Commissioner, as determined by a Commissioner.

(3) A person required to attend a compulsory examination is entitled to be informed, before or at the commencement of the compulsory examination, of the nature of the allegation or complaint being investigated.

(4) A failure to comply with subsection (3) does not invalidate or otherwise affect the compulsory examination.

(5) A compulsory examination is to be conducted in private.

Note.

Section 17 (2) requires the Commission to conduct compulsory examinations with as little emphasis on an adversarial approach as possible.

(6) The Commission may (but is not required to) advise a person required to attend a compulsory examination of any findings it has made or opinions it has formed as a result of the compulsory examination.

s 30: Subst 2005 No 10, Sch 1 [18]. Am 2016 No 65, Sch 1 [3].

Public inquiries

31 Public inquiries

(1) For the purposes of an investigation, the Commission may, if it is satisfied that it is in the public interest to do so, conduct a public inquiry.

(2) Without limiting the factors that it may take into account in determining whether or not it is in the public interest to conduct a public inquiry, the Commission is to consider the following—

(a) the benefit of exposing to the public, and making it aware, of corrupt conduct,

(b) the seriousness of the allegation or complaint being investigated,

(c) any risk of undue prejudice to a person’s reputation (including prejudice that might arise from not holding an inquiry),

(d) whether the public interest in exposing the matter is outweighed by the public interest in preserving the privacy of the persons concerned.

(3) (Repealed)

(4) A public inquiry is to be conducted by a Commissioner or by an Assistant Commissioner, as determined by the Chief Commissioner.

(5) At a public inquiry, the person presiding must announce the general scope and purpose of the inquiry.

(6) A person required to attend a public inquiry is entitled to be informed of the general scope and purpose of the public inquiry and the nature of the allegation or complaint being investigated before or at the time the person is required to appear at the inquiry.

(7) A failure to comply with subsection (6) does not invalidate or otherwise affect the public inquiry.

(8) A public inquiry is to be held in public.

(9) Despite subsection (8), the Commission may decide to hold part of the inquiry in private if it considers this to be in the public interest.

(10) Without limiting subsection (9), the Commission may decide to hear closing submissions in private. This extends to a closing submission by a person appearing before the Commission or an Australian legal practitioner representing such a person, as well as to a closing submission by an Australian legal practitioner assisting the Commission as counsel.

Note.

Section 17 (2) requires the Commission to conduct public inquiries with as little emphasis on an adversarial approach as possible.

s 31: Subst 1991 No 54, Sch 1 (2); 2005 No 10, Sch 1 [18]. Am 2006 No 120, Sch 3.12 [2]; 2016 No 65, Sch 1 [2] [3] [5].

31A

Directions as to presence of persons at compulsory examinations and public inquiries

31A Directions as to presence of persons at compulsory examinations and public inquiries

A Commissioner may give directions as to the persons who may be present at a compulsory examination or any part of a public inquiry that is held in private. A person must not be present in contravention of any such direction.

Note.

It is an offence to contravene a direction under section 31A—see section 85.

s 31A: Ins 2005 No 10, Sch 1 [18]. Am 2016 No 65, Sch 1 [3].

31B

Procedural guidelines relating to public inquiries

31B Procedural guidelines relating to public inquiries

(1) The Commissioners are to issue guidelines relating to the conduct of public inquiries of the Commission to members of staff of the Commission and counsel appointed under section 106 to assist the Commission.

(2) The guidelines are to provide guidance on the following aspects of the conduct of public inquiries—

(a) the investigation of evidence that might exculpate affected persons,

(b) the disclosure of exculpatory and other relevant evidence to affected persons,

(c) the opportunity to cross-examine witnesses as to their credibility,

(d) providing affected persons and other witnesses with access to relevant documents and a reasonable time to prepare before giving evidence,

(e) any other matter the Commission considers necessary to ensure procedural fairness.

(3) The Commission is to arrange for the guidelines to be tabled in both Houses of Parliament and to be published on a website maintained by the Commission.

(4) In this section—

affected person means a person against whom substantial allegations have been made in the course of or in connection with the public inquiry concerned.

s 31B: Ins 2016 No 65, Sch 1 [6].

Right of appearance of affected person

32 Right of appearance of affected person

If it is shown to the satisfaction of the Commission that any person is substantially and directly interested in any subject-matter of a public inquiry, the Commission may authorise the person to appear at the public inquiry or a specified part of the public inquiry.

s 32: Am 2005 No 10, Sch 1 [19].

Legal representation

33 Legal representation

(1) The Commission may, in relation to a compulsory examination or public inquiry, authorise—

(a) a person giving evidence at the compulsory examination or public inquiry, or

(b) a person referred to in section 32,

to be represented by an Australian legal practitioner at the compulsory examination or public inquiry or a specified part of the compulsory examination or public inquiry.

(2) The Commission is required to give a reasonable opportunity for a person giving evidence at the compulsory examination or public inquiry to be legally represented.

(3) An Australian legal practitioner appointed by the Commission to assist it may appear before the Commission.

s 33: Am 2005 No 10, Sch 1 [20]; 2006 No 120, Sch 3.12 [2] [3].

33A

Groups and unincorporated associations

33A Groups and unincorporated associations

(1) A group or unincorporated association may be authorised to appear at a compulsory examination or public inquiry or authorised or required to give evidence at a compulsory examination or public inquiry.

(2) Accordingly, references in sections 32 and 33, and in other provisions of this Act, to a “person” extend for this purpose to a group or unincorporated association.

(3) However, this section does not affect the application in any other context of the principle that a reference to a word in the singular form includes a reference to the word in the plural form.

s 33A: Ins 1991 No 54, Sch 1 (3). Am 2005 No 10, Sch 1 [20].

Examination and cross-examination

34 Examination and cross-examination

(1) An Australian legal practitioner appointed by the Commission to assist it, or a person or a person’s Australian legal practitioner authorised to appear at a compulsory examination or public inquiry, may, with the leave of the Commission, examine or cross-examine any witness on any matter that the Commission considers relevant.

(2) Any witness so examined or cross-examined has the same protection and is subject to the same liabilities as if examined by a Commissioner or an Assistant Commissioner.

s 34: Am 2005 No 10, Sch 1 [20]; 2006 No 120, Sch 3.12 [3] [4]; 2016 No 65, Sch 1 [3].

Power to summon witnesses and take evidence

35 Power to summon witnesses and take evidence

(1) A Commissioner may summon a person to appear before the Commission at a compulsory examination or public inquiry at a time and place named in the summons (the required appearance)—

(a) to give evidence, or

(b) to produce such documents or other things (if any) as are referred to in the summons,

or both.

(2) The person presiding at a compulsory examination or public inquiry before the Commission may require a person appearing at the compulsory examination or public inquiry to produce a document or other thing.

(3) The Commission may, at a compulsory examination or public inquiry, take evidence on oath or affirmation and for that purpose—

(a) the person presiding at the compulsory examination or public inquiry may require a person appearing at the compulsory examination or public inquiry to give evidence either to take an oath or to make an affirmation in a form approved by the person presiding, and

(b) the person presiding, or a person authorised for the purpose by the person presiding, may administer an oath or affirmation to a person so appearing at the compulsory examination or public inquiry.

(4) A witness who has been summoned to appear before the Commission shall appear and report himself or herself from day to day unless the witness is excused from appearance or until the witness is released from further appearance by the person presiding at the compulsory examination or public inquiry.

(4A) A Commissioner may, by notice in writing, excuse a person who has been summoned to appear before the Commission and produce documents or other things from the required appearance on condition that the person (or a person acting on the person’s behalf) produces those documents or things in accordance with any directions given by the Commissioner before the time of the required appearance.

(5) A person who, without being excused or released under subsection (4) or (4A), fails to appear and report shall be taken to have failed to appear before the Commission in obedience to the summons.

(5A) A person who, after being excused under subsection (4A) from the required appearance, fails to produce the documents or things concerned in accordance with the Commissioner’s directions is taken to have failed to appear before the Commission in obedience to the summons.

(6) A Judge may, on the application of a Commissioner, issue any summons that the Commissioner is authorised to issue under this section.

(7) The purpose of subsection (6) is to enable the summons to be given the character of a summons issued by a judicial officer, for the purposes of the Service and Execution of Process Act 1901 of the Commonwealth and any other relevant law.

s 35: Am 1990 No 80, Sch 1 (5); 2005 No 10, Sch 1 [20]; 2011 No 36, Sch 1 [3]–[7]; 2016 No 65, Sch 1 [3]; 2017 No 22, Sch 2.20; 2025 No 61, Sch 2.51[3].

Arrest of witness

36 Arrest of witness

(1) If a person served with a summons to attend the Commission as a witness fails to attend in answer to the summons, a Commissioner may, on proof by statutory declaration of the service of the summons, issue a warrant for the arrest of the witness.

(2) If a Commissioner is satisfied by evidence on oath or affirmation that it is probable that a person whose evidence is desired and is necessary and relevant to an investigation under this Act—

(a) will not attend before the Commission to give evidence without being compelled to do so, or

(b) is about to or is making preparations to leave the State and the person’s evidence will not be obtained by the Commission if the person departs,

the Commissioner may issue a warrant for the arrest of the person.

(3) A Commissioner is authorised to administer an oath or affirmation for the purposes of subsection (2).

(4) A warrant may be issued under subsection (2) without or before the issue of a summons to the person whose evidence is desired.

(5) A warrant may be issued under subsection (2) after the issue of a summons to the person whose evidence is desired, even though the time named in the summons for the person to attend has not yet passed.

(6) A warrant under this section authorises the arrest of the witness and his or her being promptly brought before the Commission and detained in a prison or elsewhere for that purpose until released by order of a Commissioner.

(7) A warrant issued under this section may be executed by any member of the NSW Police Force, or by any person to whom it is addressed, and the person executing it may use such force as is reasonably necessary for the purpose of entering any premises for the purpose of executing it.

(8) The issue of a warrant or the arrest of a witness does not relieve the witness from any liability incurred by the witness for non-compliance with a summons.

s 36: Am 1997 No 60, Sch 4 [1]; 2011 No 62, Sch 3.14 [1]; 2016 No 65, Sch 1 [3].

36A

Conditional release of witness

36A Conditional release of witness

(1) The release of a witness by order of a Commissioner under section 36 (6) may (but need not) be made subject to one or more of the following conditions (or any other conditions)—

(a) that the witness appear and report himself or herself before the Commission in accordance with the terms of the order unless excused from attendance or until released from further attendance by the person presiding at the relevant compulsory examination or public inquiry of the Commission, and

(b) conditions for the purpose of ensuring the further attendance of the witness before the Commission (for example the provision of sureties by the witness, the surrender of any passport held by the witness, a requirement as to where the witness is to live and regular reporting by the witness to the Commission).

(2) From time to time, a Commissioner may by order amend, revoke or add to those conditions.

s 36A: Ins 1997 No 60, Sch 4 [2]. Am 2005 No 10, Sch 1 [20]; 2016 No 65, Sch 1 [3].

36B

Review by Supreme Court

36B Review by Supreme Court

(1) A witness who has not been released by a Commissioner under section 36 (6) or whose release under that subsection is subject to one or more conditions may apply to the Supreme Court for a review of the decision not to release or failure to release the witness or of the terms of one or more of those conditions.

(2) The Supreme Court may affirm or set aside a decision by a Commissioner not to release the witness or any condition imposed by a Commissioner on the release of the witness. The Supreme Court may also or instead make any order that a Commissioner may make in relation to the detention or release of the witness. The Court may do so also where a Commissioner has not made any decision within a reasonable time on the release of the witness.

(3) Such an order is taken to be an order of a Commissioner.

s 36B: Ins 1997 No 60, Sch 4 [2]. Am 2016 No 65, Sch 1 [3].

Privilege as regards answers, documents etc

37 Privilege as regards answers, documents etc

(1) A witness summoned to attend or appearing before the Commission at a compulsory examination or public inquiry is not entitled to refuse—

(a) to be sworn or to make an affirmation, or

(b) to answer any question relevant to an investigation put to the witness by the Commissioner or other person presiding at a compulsory examination or public inquiry, or

(c) to produce any document or other thing in the witness’s custody or control which the witness is required by the summons or by the person presiding to produce.

(2) A witness summoned to attend or appearing before the Commission at a compulsory examination or public inquiry is not excused from answering any question or producing any document or other thing on the ground that the answer or production may incriminate or tend to incriminate the witness, or on any other ground of privilege, or on the ground of a duty of secrecy or other restriction on disclosure, or on any other ground.

(3) An answer made, or document or other thing produced, by a witness at a compulsory examination or public inquiry before the Commission or in accordance with a direction given by a Commissioner under section 35 (4A) is not (except as otherwise provided in this section or section 114A (5)) admissible in evidence against the person in any civil or criminal proceedings or in any disciplinary proceedings.

(4) Nothing in this section makes inadmissible—

(a) any answer, document or other thing in proceedings for an offence against this Act or in proceedings for contempt under this Act, or

(b) any answer, document or other thing in any civil or criminal proceedings or in any disciplinary proceedings if the witness does not object to giving the answer or producing the document or other thing irrespective of the provisions of subsection (2), or

(c) any document in any civil proceedings for or in respect of any right or liability conferred or imposed by the document or other thing.

(5) Where—

(a) an Australian legal practitioner or other person is required to answer a question or produce a document or other thing at a compulsory examination or public inquiry before the Commission or in accordance with a direction given by a Commissioner under section 35 (4A), and

(b) the answer to the question would disclose, or the document or other thing contains, a privileged communication passing between an Australian legal practitioner (in his or her capacity as an Australian legal practitioner) and a person for the purpose of providing or receiving legal professional services in relation to the appearance, or reasonably anticipated appearance, of a person at a compulsory examination or public inquiry before the Commission,

the Australian legal practitioner or other person is entitled to refuse to comply with the requirement, unless the privilege is waived by a person having authority to do so.

(6) (Repealed)

s 37: Am 1988 No 42, Sch 1 (1); 1989 No 187, sec 4; 2005 No 10, Sch 1 [20]; 2006 No 120, Sch 3.12 [2] [5]; 2011 No 36, Sch 1 [8]; 2013 No 14, Sch 1 [2]; 2016 No 65, Sch 1 [3].

Declaration as to objections by witness

38 Declaration as to objections by witness

The Commissioner or person presiding at the compulsory examination or public inquiry may declare that all or any classes of answers given by a witness or that all or any classes of documents or other things produced by a witness will be regarded as having been given or produced on objection by the witness, and there is accordingly no need for the witness to make an objection in respect of each such answer, document or other thing.

s 38: Am 2005 No 10, Sch 1 [20].

Attendance of prisoner before Commission

39 Attendance of prisoner before Commission

(1) If a Commissioner requires the attendance at a compulsory examination or public inquiry before the Commission of a prisoner, the Commissioner may, by order in writing served on the governor of the prison in whose custody the prisoner is, direct the governor to produce the prisoner, or have the prisoner produced, at the time and place stated in the order.

(2) Such an order is sufficient authority to the governor of the prison for producing or having produced the prisoner, who shall be produced accordingly.

(3) A prisoner shall, when produced under this section in the actual custody of the governor of the prison, a prison officer or a member of the NSW Police Force, be taken to be in lawful custody.

(4) The governor, prison officer or member of the NSW Police Force shall in due course return the prisoner to the prison.

(5) In this section, governor of a prison, prison and prisoner have the same meanings as governor, correctional centre and inmate have in the Crimes (Administration of Sentences) Act 1999.

s 39: Am 1999 No 94, Sch 4.30 [2]; 2005 No 10, Sch 1 [20]; 2011 No 62, Sch 3.14 [1]; 2016 No 65, Sch 1 [3].

Division 4

Search warrants

Division 4 Search warrants

Issue of search warrant

40 Issue of search warrant

(1) An authorised officer to whom an application is made under subsection (4) may issue a search warrant if satisfied that there are reasonable grounds for doing so.

(2) A Commissioner, on application made to the Commissioner under subsection (4), may issue a search warrant if the Commissioner thinks fit in the circumstances and if satisfied that there are reasonable grounds for doing so.

(3) Search warrants should, as far as practicable, be issued by authorised officers, but nothing in this subsection affects the discretion of a Commissioner to issue them.

(4) An officer of the Commission may apply to an authorised officer or a Commissioner for a search warrant if the officer has reasonable grounds for believing that there is in or on any premises a document or other thing connected with any matter that is being investigated under this Act or that such a document or other thing may, within the next following 72 hours, be brought into or onto the premises.

s 40: Am 2002 No 103, Sch 4.47 [2] (am 2006 No 58, Sch 2.28 [3]) [3]; 2016 No 65, Sch 1 [3].

Authority conferred by warrant

41 Authority conferred by warrant

(1) A search warrant authorises any member of the NSW Police Force, or any other person, named in the warrant—

(a) to enter the premises, and

(b) to search the premises for documents or other things connected with any matter that is being investigated under this Act, and

(c) to seize any such documents or other things found in or on the premises and deliver them to the Commission.

(2) A member of the NSW Police Force, or a senior Commission investigator, named in and executing a search warrant may search a person found in or on the premises whom the member of the NSW Police Force or senior Commission investigator reasonably suspects of having a document or other thing mentioned in the warrant.

(3) In this section—

senior Commission investigator means an officer of the Commission who is designated by the Chief Commissioner as a senior investigator and who is issued by the Chief Commissioner with means of identification as such a senior Commission investigator.

s 41: Am 1996 No 29, Sch 3 (4)–(6); 2011 No 62, Sch 3.14 [1]; 2016 No 65, Sch 1 [2].

Duty to show warrant

42 Duty to show warrant

A person executing a search warrant shall produce the warrant for inspection by an occupier of the premises if requested to do so by that occupier.

Use of force

43 Use of force

(1) A person authorised to enter premises under a search warrant may use such force as is reasonably necessary for the purpose of entering the premises.

(2) A person authorised to enter premises under a search warrant may, if it is reasonably necessary to do so, break open any receptacle in or on the premises for the purposes of the search.

Use of assistants to execute warrant

44 Use of assistants to execute warrant

A person may execute a search warrant with the aid of such assistants as the person considers necessary.

Execution of warrant by day or night

45 Execution of warrant by day or night

(1) A search warrant may be executed by day, but shall not be executed by night unless the person issuing the warrant, by the warrant, authorises its execution by night.

(2) In this section—

by day means during the period between 6 am and 9 pm on any day.

by night means during the period between 9 pm on any day and 6 am on the following day.

Expiry of warrant

46 Expiry of warrant

A search warrant ceases to have effect—

(a) one month after its issue, or

(b) if it is withdrawn by the person who issued the warrant, or

(c) when it is executed,

whichever first occurs.

Seizure pursuant to warrant—special provisions

47 Seizure pursuant to warrant—special provisions

(1) If, in the course of searching, in accordance with the terms of a search warrant, for documents or other things—

(a) the person executing the warrant finds a document or other thing that the person believes on reasonable grounds to be evidence that would be admissible in the prosecution of a person for an indictable offence against the law of the Commonwealth, a State or a Territory, and

(b) the first-mentioned person believes on reasonable grounds that it is necessary to seize the document or other thing in order to prevent its concealment, loss, mutilation or destruction, or its use in committing such an offence,

that person may seize the document or other thing and, if it is so seized, it shall be taken, for the purposes of this Act, to have been seized pursuant to the warrant.

(2) If a document or other thing is seized pursuant to a search warrant—

(a) the Commission may retain the document or other thing if, and for so long as, its retention by the Commission is reasonably necessary for the purposes of an investigation to which it is relevant, and

(b) if the retention of the document or other thing by the Commission is not, or ceases to be, reasonably necessary for such purposes, the Commission shall cause it to be delivered to—

(i) the person who appears to the Commission to be entitled to possession of the document or other thing, or

(ii) the Attorney General or the Director of Public Prosecutions, with a recommendation as to what action should be taken in relation to the document or other thing.

Search warrants

48 Search warrants

(1) Division 4 of Part 5 of the Law Enforcement (Powers and Responsibilities) Act 2002 (other than sections 69–73A) applies to a search warrant issued under this Act.

(2) Division 4 of Part 5 of the Law Enforcement (Powers and Responsibilities) Act 2002 so applies as if references in that Division to an authorised officer to whom an application for a search warrant is made or by whom a search warrant is issued included (where relevant) references to a Commissioner, where such an application is made to a Commissioner or a search warrant is issued by a Commissioner.

s 48: Am 2002 No 103, Sch 4.47 [4]–[6]; 2005 No 103, Sch 7; 2016 No 65, Sch 1 [3].

Division 4A

Disposal of property

Division 4A Disposal of property

pt 4, div 4A: Ins 2005 No 10, Sch 1 [21].

48A

Application to property

48A Application to property

This Division applies to property—

(a) that is lawfully in the custody of the Commission in connection with an investigation, and

(b) is not required for the purposes of an investigation or a criminal prosecution or disciplinary or other proceeding.

s 48A: Ins 2005 No 10, Sch 1 [21].

48B

Disposal of property on application to court

48B Disposal of property on application to court

(1) The Commission may apply to a court for an order under this Division in relation to property to which this Division applies if it appears to the Commission that no person is lawfully entitled to the property.

(2) A court to which such an application is made may order that the property be dealt with as the court thinks fit.

(3) Without limiting subsection (2), in determining an application a court may—

(a) order that the property be forfeited to the Crown, and

(b) make any necessary incidental or ancillary orders.

(4) Property ordered to be forfeited to the Crown—

(a) if money, is to be paid to the Treasurer for payment into the Consolidated Fund, or

(b) in any other case, may be sold by or on behalf of the Commission at public auction and the proceeds of sale paid to the Treasurer for payment into the Consolidated Fund.

(5) If the property is not money or is not fit or suitable for sale, or fails to sell at public auction, it is to be disposed of in accordance with the directions of the Commission.

s 48B: Ins 2005 No 10, Sch 1 [21]. Am 2016 No 65, Sch 1 [7].

48C

Application to Treasurer for recovery of money or proceeds of sale

48C Application to Treasurer for recovery of money or proceeds of sale

A person who is lawfully entitled to any property that has been dealt with in accordance with this Division may recover from the Treasurer the money or proceeds of sale held by the Treasurer. This Act authorises the Treasurer to pay the amount out of the Consolidated Fund (which is appropriated to the necessary extent).

s 48C: Ins 2005 No 10, Sch 1 [21].

48D

Courts having jurisdiction under this Division

48D Courts having jurisdiction under this Division

The court to which an application under this Division may be made is—

(a) the Local Court, if the estimated value of the property (or the amount of the money) does not exceed $40,000, or

(b) the District Court, if the estimated value of the property (or the amount of the money) exceeds $40,000 but does not exceed $250,000, or

(c) the Supreme Court, if the estimated value of the property (or the amount of the money) exceeds $250,000.

s 48D: Ins 2005 No 10, Sch 1 [21]. Am 2007 No 94, Sch 1.50.

Division 5

Miscellaneous

Division 5 Miscellaneous

Indemnities and undertakings

49 Indemnities and undertakings

(1) The Commission may recommend to the Attorney General that a person be granted (under section 32 of the Criminal Procedure Act 1986) an indemnity from prosecution.

(2) The Commission may recommend to the Attorney General that a person be given (under section 33 of the Criminal Procedure Act 1986) an undertaking that—

(a) an answer, statement or disclosure in proceedings before the Commission, or

(b) the fact of a disclosure or production of a document in proceedings before the Commission,

will not be used in evidence against the person.

(3) Section 33 of the Criminal Procedure Act 1986 applies in relation to proceedings before the Commission in the same way as it applies in relation to proceedings for an offence.

(4) A reference in this section to proceedings before the Commission includes a reference to a compulsory examination or public inquiry conducted by the Commission or any other investigative activity involving the Commission or an officer of the Commission.

s 49: Am 1999 No 94, Sch 4.30 [3]–[5]; 2001 No 121, Sch 2.125 [3]–[5]; 2005 No 10, Sch 1 [22].

50

50 (Repealed)

Reimbursement of expenses of witnesses

51 Reimbursement of expenses of witnesses

A witness appearing before the Commission shall be paid, out of money provided by Parliament, in respect of the expenses of the witness’s attendance an amount ascertained in accordance with the prescribed scale or, if there is no prescribed scale, such amount as the Commission determines.

Legal and financial assistance for witness

52 Legal and financial assistance for witness

(1) A witness who is appearing or about to appear before the Commission may apply to the Attorney General for legal or financial assistance.

(2) The Attorney General may approve the provision of legal or financial assistance to the applicant if of the opinion that this is appropriate, having regard to any one or more of the following—

(a) the prospect of hardship to the witness if assistance is declined,

(b) the significance of the evidence that the witness is giving or appears likely to give,

(c) any other matter relating to the public interest.

(3) On giving the approval, the Attorney General may authorise the provision to the witness of legal or financial assistance determined by the Attorney General in respect of the witness’s appearance before the Commission. The assistance is to be provided out of money provided by Parliament for the purpose.

(4) The assistance may be provided unconditionally or subject to conditions determined by the Attorney General.

(5) The Attorney General may delegate one or more of his or her functions under this section to the Secretary, a Deputy Secretary or the General Counsel of the Department of Communities and Justice.

s 52: Subst 1991 No 54, Sch 1 (4). Am 1997 No 60, Sch 4 [4]; 2019 No 14, Sch 1.11.

52A

Investigative powers exercisable after completion of Commission’s investigations for purposes of prosecutions

52A Investigative powers exercisable after completion of Commission’s investigations for purposes of prosecutions

(1) This section applies to the function of the Commission under section 14 of gathering and assembling evidence that may be admissible in the prosecution of a person for a criminal offence and of furnishing that evidence to the Director of Public Prosecutions or to the Electoral Commission.

(2) The powers under sections 21, 22, 23 and 40 may be exercised for the purposes of that function after the completion of the Commission’s investigations into a matter if the Director of Public Prosecutions or the Electoral Commission requests the Commission to do so.

s 52A: Ins 2016 No 65, Sch 1 [8].

Part 5

Referral of matters by Commission

Part 5 Referral of matters by Commission

Referral of matter

53 Referral of matter

(1) The Commission may, before or after investigating a matter (whether or not the investigation is completed, and whether or not the Commission has made any findings), refer the matter for investigation or other action to any person or body considered by the Commission to be appropriate in the circumstances.

(2) The person or body to whom a matter is referred is called in this Part a relevant authority.

(3) The Commission may, when referring a matter, recommend what action should be taken by the relevant authority and the time within which it should be taken.

(4) The Commission may communicate to the relevant authority any information which the Commission has obtained during the investigation of conduct connected with the matter.

(5) The Commission shall not refer a matter to a person or body except after appropriate consultation with the person or body and after taking into consideration the views of the person or body.

(6) If the Commission communicates information to a person or body under this section on the understanding that the information is confidential, the person or body is subject to the secrecy provisions of section 111 in relation to the information.

Report to Commission

54 Report to Commission

(1) The Commission may, when referring a matter under this Part, require the relevant authority to submit to the Commission a report or reports in relation to the matter and the action taken by the relevant authority.

(2) A report shall be of such a nature as the Commission directs.

(3) A report shall be submitted to the Commission within such time as the Commission directs.

Further action by Commission

55 Further action by Commission

(1) If the Commission is not satisfied that a relevant authority has duly and properly taken action in connection with a matter referred under this Part, the Commission shall inform the relevant authority of the grounds of the Commission’s dissatisfaction and shall give the relevant authority an opportunity to comment within a specified time.

(2) If, after considering any comments received from the relevant authority within the specified time, the Commission is still not satisfied, the Commission may submit a report to the Minister for the relevant authority setting out the recommendation concerned and the grounds of dissatisfaction, together with any comments from the relevant authority and the Commission.

(3) If, after considering any comments received from the Minister for the authority within 21 days after the report was submitted to that Minister under subsection (2), the Commission is still of the opinion that the recommendation should be adopted, the Commission may make a report as referred to in section 77.

Responsibility of relevant authority

56 Responsibility of relevant authority

It is the duty of a relevant authority to comply with any requirement or direction of the Commission under this Part.

Revocation of referral, recommendation etc

57 Revocation of referral, recommendation etc

(1) The Commission may revoke a referral under this Part.

(2) The Commission may revoke or vary a recommendation, requirement or direction of the Commission under this Part.

(3) The Commission may vary any time within which a requirement under this Part is to be complied with.

Part 5A

Inspector of the Independent Commission Against Corruption

Part 5A Inspector of the Independent Commission Against Corruption

pt 5A: Ins 2005 No 10, Sch 1 [23].

57A

Inspector of the Independent Commission Against Corruption

57A Inspector of the Independent Commission Against Corruption

(1) Appointment The Governor may appoint an Inspector of the Independent Commission Against Corruption.

(2) Schedule of provisions relating to Inspector Schedule 1A has effect.

s 57A: Ins 2005 No 10, Sch 1 [23].

57AA

Assistant Inspector

57AA Assistant Inspector

(1) The Governor may, with the concurrence of the Inspector, appoint an Assistant Inspector of the Independent Commission Against Corruption.

(2) An Assistant Inspector may, to the extent to which he or she is directed by the Inspector to do so, exercise any function of the Inspector and for that purpose is taken to be the Inspector.

s 57AA: Ins 2013 No 72, Sch 2 [2].

57AB

57AB (Repealed)

57B

Principal functions of Inspector

57B Principal functions of Inspector

(1) The principal functions of the Inspector are—

(a) to audit the operations of the Commission for the purpose of monitoring compliance with the law of the State, and

(b) to deal with (by reports and recommendations) complaints of abuse of power, impropriety and other forms of misconduct on the part of the Commission or officers of the Commission, and

(c) to deal with (by reports and recommendations) conduct amounting to maladministration (including, without limitation, delay in the conduct of investigations and unreasonable invasions of privacy) by the Commission or officers of the Commission, and

(d) to assess the effectiveness and appropriateness of the procedures of the Commission relating to the legality or propriety of its activities.

Note.

Protections may be available under the following provisions to persons who make a complaint referred to in this section—

(a) the Public Interest Disclosures Act 2022, Part 3—if the complaint is a public interest disclosure,

(b) Part 8A—if the making of the complaint is protected action within the meaning of the Part.

(2) The functions of the Inspector may be exercised on the Inspector’s own initiative, at the request of the Minister, in response to a complaint made to the Inspector or in response to a reference by the Joint Committee or any public authority or public official.

(3) The Inspector is not subject to the Commission in any respect.

(4) For the purposes of this section, conduct is of a kind that amounts to maladministration if it involves action or inaction of a serious nature that is—

(a) contrary to law, or

(b) unreasonable, unjust, oppressive or improperly discriminatory, or

(c) based wholly or partly on improper motives.

(5) Without affecting the power of the Inspector to make a report under Part 8, the Inspector may, at any time—

(a) make a recommendation or report concerning any matter relating to the functions of the Inspector under this section that the Inspector considers may effectively be dealt with by recommendation or report under this section, and

(b) provide the report or recommendation (or any relevant part of it) to the Commission, an officer of the Commission, a person who made a complaint or any other affected person.

s 57B: Ins 2005 No 10, Sch 1 [23]. Am 2011 No 36, Sch 1 [9]; 2022 No 14, Sch 4[1].

57C

Powers of Inspector

57C Powers of Inspector

(1) The Inspector—

(a) may investigate any aspect of the Commission’s operations or any conduct of officers of the Commission, and

(b) is entitled to full access to the records of the Commission and to take or have copies made of any of them, and

(c) may require officers of the Commission to supply information or produce documents or other things about any matter, or any class or kind of matters, relating to the Commission’s operations or any conduct of officers of the Commission, and

(d) may require officers of the Commission to attend before the Inspector to answer questions or produce documents or other things relating to the Commission’s operations or any conduct of officers of the Commission, and

(e) may investigate and assess complaints about the Commission or officers of the Commission, and

(f) may refer matters relating to the Commission or officers of the Commission to other public authorities or public officials for consideration or action, and

(g) may recommend disciplinary action or criminal prosecution against officers of the Commission.

(2) If the Inspector makes a recommendation or report to the Commission in exercising functions under section 57B, the Inspector may require the Commission to give the Inspector, within a reasonable time specified by the Inspector—

(a) advice about whether the Commission intends to implement the recommendation or report, and

(b) if the Commission does not intend to implement the recommendation or report—the reasons for not implementing the recommendation or report.

(3) If the Inspector is not satisfied the Commission has duly and properly taken action in relation to the recommendation or report made to the Commission by the Inspector, the Inspector must—

(a) inform the Commission of the grounds of the Inspector’s dissatisfaction, and

(b) give the Commission an opportunity to comment within a specified time.

(4) If, after considering any comments received from the Commission within the specified time, the Inspector is still not satisfied, the Inspector may make a report to the Presiding Officer of each House of Parliament setting out—

(a) the Inspector’s recommendation or report, and

(b) the grounds of the Inspector’s dissatisfaction, and

(c) any comments from the Commission and the Inspector.

s 57C: Ins 2005 No 10, Sch 1 [23]. Am 2023 No 17, Sch 1[1].

57D

Inquiries

57D Inquiries

(1) For the purposes of the Inspector’s functions, the Inspector may make or hold inquiries.

(2) For the purposes of any inquiry under this section, the Inspector has the powers, authorities, protections and immunities conferred on a commissioner by Division 1 of Part 2 of the Royal Commissions Act 1923 and that Act (section 13 excepted) applies to any witness summoned by or appearing before the Inspector in the same way as it applies to a witness summoned by or appearing before a commissioner.

(3) A witness summoned by or appearing before the Inspector is to be paid such amount as the Inspector determines, but not exceeding the amount that would be payable to such a witness if he or she were a Crown witness subpoenaed by the Crown to give evidence.

s 57D: Ins 2005 No 10, Sch 1 [23].

57E

Staff of Inspector

57E Staff of Inspector

(1) Persons employed in the Public Service under the Government Sector Employment Act 2013 to enable the Inspector to exercise his or her functions are subject to the control and direction of the Inspector.

(2) Subsection (1) does not affect the exercise of the functions under the Government Sector Employment Act 2013 of the head of the Public Service agency in which those persons are employed. The head of that agency may delegate those functions under that Act to the Inspector.

(3) The Inspector may engage persons as consultants to the Inspector or to perform services for the Inspector.

(4) The Inspector may arrange for the use of the services of—

(a) any staff or facilities of the Commission, a Department or a local or public authority, or

(b) any staff who are employed by or for or assigned to the person who is Inspector, in his or her capacity as the holder of some other position (for example, as a Judge).

(4A) (Repealed)

(5) Such provisions of this Act as are prescribed by the regulations apply to persons referred to in subsections (1)–(4) in the same way as they apply to staff of the Commission, with any necessary adaptations and with such modifications as are prescribed.

(6) (Repealed)

s 57E: Ins 2005 No 10, Sch 1 [23]. Am 2005 No 98, Sch 1.13 [1]–[3]; 2014 No 33, Sch 3.14 [3] [4].

57F

Incidental powers

57F Incidental powers

(1) The Inspector has power to do all things necessary to be done for or in connection with, or reasonably incidental to, the exercise of the Inspector’s functions. Any specific powers conferred on the Inspector by this Act are not taken to limit by implication the generality of this section.

(2) Section 40 of the Surveillance Devices Act 2007 does not apply to the use, publication or communication of protected information within the meaning of that Act in relation to the exercise of the Inspector’s functions under section 57B.

s 57F: Ins 2005 No 10, Sch 1 [23]. Am 2011 No 36, Sch 1 [10].

57G

Former officers of the Commission

57G Former officers of the Commission

For the avoidance of doubt, a reference in any other provision of this Part to an officer of the Commission includes a reference to a former officer of the Commission.

s 57G: Ins 2006 No 58, Sch 1.16 [1].

Part 6

58–62 (Repealed)

pt 6 (ss 58–62): Rep 2006 No 29, Sch 1 [2].

Part 7

Parliamentary Joint Committee

Part 7 Parliamentary Joint Committee

Constitution of Joint Committee

63 Constitution of Joint Committee

As soon as practicable after the commencement of this Part and the commencement of the first session of each Parliament, a joint committee of members of Parliament, to be known as the Committee on the Independent Commission Against Corruption, shall be appointed.

Functions

64 Functions

(1) The functions of the Joint Committee are as follows—

(a) to monitor and to review the exercise by the Commission and the Inspector of the Commission’s and Inspector’s functions,

(a1) to examine and report to both Houses of Parliament about the annual appropriation for the services of the Commission,

Note—

See the Government Sector Finance Act 2018, section 4.14B(5) which provides for the Joint Committee to examine and report within 3 months after receiving notice under that section of the amount proposed to be appropriated.

(b) to report to both Houses of Parliament, with such comments as it thinks fit, on any other matter appertaining to the Commission or the Inspector or connected with the exercise of its functions to which, in the opinion of the Joint Committee, the attention of Parliament should be directed,

(c) to examine each annual and other report of the Commission and of the Inspector and report to both Houses of Parliament on any matter appearing in, or arising out of, any such report,

(d) to examine trends and changes in corrupt conduct, and practices and methods relating to corrupt conduct, and report to both Houses of Parliament any change which the Joint Committee thinks desirable to the functions, structures and procedures of the Commission and the Inspector,

(e) to inquire into any question in connection with its functions which is referred to it by both Houses of Parliament, and report to both Houses on that question.

(2) Nothing in this Part authorises the Joint Committee—

(a) to investigate a matter relating to particular conduct, or

(b) to reconsider a decision to investigate, not to investigate or to discontinue investigation of a particular complaint, or

(c) to reconsider the findings, recommendations, determinations or other decisions of the Commission in relation to a particular investigation or complaint.

s 64: Am 2005 No 10, Sch 1 [24]–[26]; 2024 No 57, Sch 2.4[1] [2].

64A

Power to veto proposed appointment of a Commissioner or the Inspector

64A Power to veto proposed appointment of a Commissioner or the Inspector

(1) The Minister is to refer a proposal to appoint a person as a Commissioner or Inspector to the Joint Committee and the Committee is empowered to veto the proposed appointment as provided by this section. The Minister may withdraw a referral at any time.

(2) The Joint Committee has 14 days after the proposed appointment is referred to it to veto the proposal and has a further 30 days (after the initial 14 days) to veto the proposal if it notifies the Minister within that 14 days that it requires more time to consider the matter.

(3) The Joint Committee is to notify the Minister, within the time that it has to veto a proposed appointment, whether or not it vetoes it.

(4) A referral or notification under this section is to be in writing.

s 64A: Ins 1992 No 43, Sch 1. Am 2005 No 10, Sch 1 [27]; 2016 No 65, Sch 1 [9].

Membership

65 Membership

(1) The Joint Committee shall consist of 11 members, of whom—

(a) 3 shall be members of, and appointed by, the Legislative Council, and

(b) 8 shall be members of, and appointed by, the Legislative Assembly.

(2) The appointment of members of the Joint Committee shall, as far as practicable, be in accordance with the practice of Parliament with reference to the appointment of members to serve on joint committees of both Houses of Parliament.

(3) A person is not eligible for appointment as a member of the Joint Committee if the person is a Minister of the Crown or a Parliamentary Secretary.

s 65: Am 1995 No 3, Sch 2 (1) (2).

Vacancies

66 Vacancies

(1) A member of the Joint Committee ceases to hold office—

(a) when the Legislative Assembly is dissolved or expires by the effluxion of time, or

(b) if the member becomes a Minister of the Crown or a Parliamentary Secretary, or

(c) if the member ceases to be a member of the Legislative Council or Legislative Assembly, or

(d) if, being a member of the Legislative Council, the member resigns the office by instrument in writing addressed to the President of the Legislative Council, or

(e) if, being a member of the Legislative Assembly, the member resigns the office by instrument in writing addressed to the Speaker of the Legislative Assembly, or

(f) if the member is discharged from office by the House of Parliament to which the member belongs.

(2) Either House of Parliament may appoint one of its members to fill a vacancy among the members of the Joint Committee appointed by that House.

Chair and Deputy Chair

67 Chair and Deputy Chair

(1) There shall be a Chair and a Deputy Chair of the Joint Committee, who shall be elected by and from the members of the Joint Committee.

(2) A member of the Joint Committee ceases to hold office as Chair or Deputy Chair of the Joint Committee if—

(a) the member ceases to be a member of the Committee, or

(b) the member resigns the office by instrument in writing presented to a meeting of the Committee, or

(c) the member is discharged from office by the Committee.

(3) At any time when the Chair is absent from New South Wales or is, for any reason, unable to perform the duties of Chair or there is a vacancy in that office, the Deputy Chair may exercise the functions of the Chair under this Act or under the Parliamentary Evidence Act 1901.

s 67: Am 2007 No 27, Sch 1.22 [1] [2].

Procedure

68 Procedure

(1) The procedure for the calling of meetings of the Joint Committee and for the conduct of business at those meetings shall, subject to this Act, be as determined by the Committee.

(2) The Clerk of the Legislative Assembly shall call the first meeting of the Joint Committee in each Parliament in such manner as the Clerk thinks fit.

(3) At a meeting of the Joint Committee, 6 members constitute a quorum, but the Committee shall meet as a joint committee at all times.

(4) The Chair or, in the absence of the Chair, the Deputy Chair or, in the absence of both the Chair and the Deputy Chair, a member of the Joint Committee elected to chair the meeting by the members present shall preside at a meeting of the Joint Committee.

(5) The Deputy Chair or other member presiding at a meeting of the Joint Committee shall, in relation to the meeting, have all the functions of the Chair.

(6) The Chair, Deputy Chair or other member presiding at a meeting of the Joint Committee shall have a deliberative vote and, in the event of an equality of votes, shall also have a casting vote.

(7) A question arising at a meeting of the Joint Committee shall be determined by a majority of the votes of the members present and voting.

(8) The Joint Committee may sit and transact business despite any prorogation of the Houses of Parliament or any adjournment of either House of Parliament.

(9) The Joint Committee may sit and transact business on a sitting day of a House of Parliament during the time of sitting.

s 68: Am 1995 No 3, Sch 2 (3); 2007 No 27, Sch 1.22 [1] [2].

68A

Procedure if Parliament not in session

68A Procedure if Parliament not in session

(1) If a House of Parliament is not sitting when the Joint Committee seeks to furnish a report to it, the Committee may present copies of the report to the Clerk of the House.

(2) The report—

(a) on presentation and for all purposes is taken to have been laid before the House, and

(b) may be printed by authority of the Clerk, and

(c) if printed by authority of the Clerk, is for all purposes taken to be a document published by or under the authority of the House, and

(d) is to be recorded in the Minutes, or Votes and Proceedings, of the House on the first sitting day of the House after receipt of the report by the Clerk.

s 68A: Ins 1991 No 54, Sch 1 (5).

Evidence

69 Evidence

(1) The Joint Committee shall have power to send for persons, papers and records.

(2) Subject to section 70, the Joint Committee shall take all evidence in public.

(3) Where the Joint Committee as constituted at any time has taken evidence in relation to a matter but the Committee as so constituted has ceased to exist before reporting on the matter, the Committee as constituted at any subsequent time, whether during the same or another Parliament, may consider that evidence as if it had taken the evidence.

(4) The production of documents to the Joint Committee shall be in accordance with the practice of the Legislative Assembly with respect to the production of documents to select committees of the Legislative Assembly.

Confidentiality

70 Confidentiality

(1) Where any evidence proposed to be given before, or the whole or a part of a document produced or proposed to be produced in evidence to, the Joint Committee relates to a secret or confidential matter, the Committee may, and at the request of the witness giving the evidence or producing the document shall—

(a) take the evidence in private, or

(b) direct that the document, or the part of the document, be treated as confidential.

(1A) If any evidence proposed to be given before, or the whole or a part of a document produced or proposed to be produced in evidence to, the Joint Committee relates to the proposed appointment of a person as Commissioner or Inspector, the Committee must (despite any other provision of this section)—

(a) take the evidence in private, or

(b) direct that the document, or the part of the document, be treated as confidential.

(1B) Despite any other provision of this section except subsection (6), the Joint Committee must not, and a person (including a member of the Committee) must not, disclose any evidence or the contents of a document or that part of a document to which subsection (1A) applies.

Maximum penalty—20 penalty units or imprisonment for 3 months, or both.

(1C) Despite any other provision of this section except subsection (6), the Joint Committee (including a member of the Committee) must not, and any person assisting the Committee or present during the deliberations of the Committee must not, except in accordance with section 64A (3), disclose whether or not the Joint Committee or any member of the Joint Committee has vetoed, or proposes to veto, the proposed appointment of a person as Commissioner or Inspector.

Maximum penalty—20 penalty units or imprisonment for 3 months, or both.

(2) Where a direction under subsection (1) applies to a document or part of a document produced in evidence to the Joint Committee, the contents of the document or part shall, for the purposes of this section, be taken to be evidence given by the person producing the document and taken by the Committee in private.

(3) Where, at the request of a witness, evidence is taken by the Joint Committee in private—

(a) the Committee shall not, without the consent in writing of the witness, and

(b) a person (including a member of the Committee) shall not, without the consent in writing of the witness and the authority of the Committee under subsection (5),

disclose or publish the whole or a part of that evidence.

Maximum penalty—20 penalty units or imprisonment for 3 months, or both.

(4) Where evidence is taken by the Joint Committee in private otherwise than at the request of a witness, a person (including a member of the Committee) shall not, without the authority of the Committee under subsection (5), disclose or publish the whole or a part of that evidence.

Maximum penalty—20 penalty units or imprisonment for 3 months, or both.

(5) The Joint Committee may, in its discretion, disclose or publish or, by writing under the hand of the Chair, authorise the disclosure or publication of evidence taken in private by the Committee, but this subsection does not operate so as to affect the necessity for the consent of a witness under subsection (3).

(6) Nothing in this section prohibits—

(a) the disclosure or publication of evidence that has already been lawfully published, or

(b) the disclosure or publication by a person of a matter of which the person has become aware other than by reason, directly or indirectly, of the giving of evidence before the Joint Committee.

(7) This section has effect despite section 4 of the Parliamentary Papers (Supplementary Provisions) Act 1975.

(8) If evidence taken by the Joint Committee in private is disclosed or published in accordance with this section, sections 5 and 6 of the Parliamentary Papers (Supplementary Provisions) Act 1975 apply to and in relation to the disclosure or publication as if it were a publication of that evidence under the authority of section 4 of that Act.

Note.

The Defamation Act 2005 makes provision for 2 defences in respect of the publication of defamatory matter that is contained in evidence taken by, or documents produced to, the Joint Committee in private, but only if the evidence or documents have been disclosed or published in accordance with this section.

Section 28 of the Defamation Act 2005 (when read with clause 8 of Schedule 2 to that Act) ensures that such documents attract the defence relating to public documents in defamation proceedings.

Section 29 of the Defamation Act 2005 (when read with clause 17 of Schedule 3 to that Act) ensures that proceedings in which such evidence is taken or documents produced attract the defences relating to fair reports of proceedings of public concern in defamation proceedings.

s 70: Am 1992 No 43, Sch 1; 2005 No 77, Sch 6.8; 2005 No 98, Sch 1.13 [4]; 2007 No 27, Sch 1.22 [1].

Application of certain Acts etc

71 Application of certain Acts etc

For the purposes of the Parliamentary Evidence Act 1901 and the Parliamentary Papers (Supplementary Provisions) Act 1975 and for any other purposes—

(a) the Joint Committee shall be taken to be a joint committee of the Legislative Council and Legislative Assembly, and

(b) the proposal for the appointment of the Joint Committee shall be taken to have originated in the Legislative Assembly.

Validity of certain acts or proceedings

72 Validity of certain acts or proceedings

Any act or proceeding of the Joint Committee is, even though at the time when the act or proceeding was done, taken or commenced there was—

(a) a vacancy in the office of a member of the Committee, or

(b) any defect in the appointment, or any disqualification, of a member of the Committee,

as valid as if the vacancy, defect or disqualification did not exist and the Committee were fully and properly constituted.

Part 7A

Parliamentary ethical standards

Part 7A Parliamentary ethical standards

pt 7A: Ins 1994 No 86, sec 3 (d).

72A

Definition

72A Definition

In this Division—

designated committee means the committee of the Legislative Council that is for the time being designated under section 72B.

s 72A: Ins 1994 No 86, sec 3 (d).

72B

Designation of committee

72B Designation of committee

(1) As soon as practicable after the commencement of this Division and the commencement of the first session of each Parliament, a committee of the Legislative Council is to be designated by resolution of the Legislative Council as the designated committee for the purposes of this Division.

(2) Another committee of the Legislative Council may be designated by such a resolution from time to time in place of any previously designated.

(3) The designation of a committee under this section does not affect the functions that the committee has apart from this Division.

s 72B: Ins 1994 No 86, sec 3 (d).

72C

Functions of committee

72C Functions of committee

(1) The functions of the designated committee are—

(a) to prepare for consideration by the Legislative Council draft codes of conduct for members of the Legislative Council and draft amendments to codes of conduct already adopted, and

(b) to carry out educative work relating to ethical standards applying to members of the Legislative Council, and

(c) to give advice in relation to such ethical standards in response to requests for advice by the Legislative Council, but not in relation to actual or alleged conduct of any particular person.

(2) The designated committee may seek comments from the public in relation to any of its functions under this section.

(3) Before presenting a draft code of conduct for consideration by the Legislative Council, the designated committee must—

(a) give public notice of the place at which, the dates on which, and the times during which, a draft code of conduct may be inspected by the public, and

(b) publicly exhibit a copy of the draft code of conduct at the place, on the dates and during the times set out in the notice, and

(c) specify, in the notice, the period during which submissions may be made to the committee.

(4) Any person may, during the period referred to in subsection (3) (c), make submissions in writing to the designated committee with respect to the provisions of the draft code of conduct. The committee must take any such submissions into consideration.

(5) The designated committee is to review a code of conduct adopted by the Legislative Council at least once every 4 years.

(6) (Repealed)

s 72C: Ins 1994 No 86, sec 3 (d). Am 1995 No 99, Sch 1; 1996 No 30, Sch 1; 1996 No 73, Sch 1 (1); 2003 No 73, Sch 1 [1].

72D

Definition

72D Definition

In this Division—

designated committee means the committee of the Legislative Assembly that is for the time being designated under section 72DA.

s 72D: Ins 1994 No 86, sec 3 (d). Subst 2003 No 73, Sch 1 [2].

72DA

Designation of committee

72DA Designation of committee

(1) As soon as practicable after the commencement of this section and the commencement of the first session of each Parliament, a committee of the Legislative Assembly is to be designated by resolution of the Legislative Assembly as the designated committee for the purposes of this Division.

(2) Another committee of the Legislative Assembly may be designated by such a resolution from time to time in place of any previously designated.

(3) The designation of a committee under this section does not affect the functions that the committee has apart from this Division.

s 72DA: Ins 2003 No 73, Sch 1 [2].

72E

Functions of committee

72E Functions of committee

(1) The functions of the designated committee are—

(a) to prepare for consideration by the Legislative Assembly draft codes of conduct for members of the Legislative Assembly and draft amendments to codes of conduct already adopted, and

(b) to carry out educative work relating to ethical standards applying to members of the Legislative Assembly, and

(c) to give advice in relation to such ethical standards in response to requests for advice by the Legislative Assembly, but not in relation to actual or alleged conduct of any particular person.

(1A) The designated committee may appoint any member of the public for the purpose of assisting the committee to carry out any of its functions under this section in relation to a code of conduct.

(2) The designated committee may seek comments from the public in relation to any of its functions under this section.

(3) Before presenting a draft code of conduct for consideration by the Legislative Assembly, the designated committee must—

(a) give public notice of the place at which, the dates on which, and the times during which, a draft code of conduct may be inspected by the public, and

(b) publicly exhibit a copy of the draft code of conduct at the place, on the dates and during the times set out in the notice, and

(c) specify, in the notice, the period during which submissions may be made to the committee.

(4) Any person may, during the period referred to in subsection (3) (c), make submissions in writing to the designated committee with respect to the provisions of the draft code of conduct. The committee must take any such submissions into consideration.

(5) The designated committee is to review a code of conduct adopted by the Legislative Assembly at least once every 4 years.

(6) (Repealed)

s 72E: Ins 1994 No 86, sec 3 (d). Am 1995 No 99, Sch 1; 1996 No 30, Sch 1; 1996 No 73, Sch 1 (2); 2003 No 73, Sch 1 [3]–[7].

72F

72F–72K (Repealed)

Part 8

References by and reports to Parliament

Part 8 References by and reports to Parliament

References by Parliament

73 References by Parliament

(1) Both Houses of Parliament may, by resolution of each House, refer to the Commission any matter as referred to in section 13.

(2) It is the duty of the Commission to fully investigate a matter so referred to it for investigation.

(3) It is the duty of the Commission to comply as fully as possible with any directions contained in a reference of a matter referred to in section 13 (1) (k).

(4) Both Houses of Parliament may, by resolution of each House, amend or revoke a reference made under this section.

s 73: Am 1990 No 80, Sch 1 (8).

Reports on referred matters etc

74 Reports on referred matters etc

(1) The Commission may prepare reports in relation to any matter that has been or is the subject of an investigation.

(2) The Commission shall prepare reports in relation to a matter referred to the Commission by both Houses of Parliament, as directed by those Houses.

(3) The Commission shall prepare reports in relation to matters as to which the Commission has conducted a public inquiry, unless the Houses of Parliament have given different directions under subsection (2).

(4) The Commission shall furnish reports prepared under this section to the Presiding Officer of each House of Parliament.

(5), (6) (Repealed)

(7) A report required under this section shall be furnished as soon as possible after the Commission has concluded its involvement in the matter.

(8) The Commission may defer making a report under this section if it is satisfied that it is desirable to do so in the public interest, except as regards a matter referred to the Commission by both Houses of Parliament.

(9) (Repealed)

s 74: Am 1990 No 80, Sch 1 (9); 2005 No 10, Sch 1 [29].

74A

Content of reports to Parliament

74A Content of reports to Parliament

(1) The Commission is authorised to include in a report under section 74—

(a) statements as to any of its findings, opinions and recommendations, and

(b) statements as to the Commission’s reasons for any of its findings, opinions and recommendations.

(2) The report must include, in respect of each “affected” person, a statement as to whether or not in all the circumstances the Commission is of the opinion that consideration should be given to the following—

(a) obtaining the advice of the Director of Public Prosecutions with respect to the prosecution of the person for a specified criminal offence,

(b) the taking of action against the person for a specified disciplinary offence,

(c) the taking of action against the person as a public official on specified grounds, with a view to dismissing, dispensing with the services of or otherwise terminating the services of the public official.

(3) An “affected” person is a person described as such in the reference made by both Houses of Parliament or against whom, in the Commission’s opinion, substantial allegations have been made in the course of or in connection with the investigation concerned.

(4) Subsection (2) does not limit the kinds of statement that a report can contain concerning any such “affected” person and does not prevent a report from containing a statement described in that subsection in respect of any other person.

s 74A: Ins 1990 No 80, Sch 1 (10). Am 2005 No 10, Sch 1 [30].

74B

Report not to include findings etc of guilt or recommending prosecution

74B Report not to include findings etc of guilt or recommending prosecution

(1) The Commission is not authorised to include in a report under section 74 a statement as to—

(a) a finding or opinion that a specified person is guilty of or has committed, is committing or is about to commit a criminal offence or disciplinary offence (whether or not a specified criminal offence or disciplinary offence), or

(b) a recommendation that a specified person be, or an opinion that a specified person should be, prosecuted for a criminal offence or disciplinary offence (whether or not a specified criminal offence or disciplinary offence).

(2) A finding or opinion that a person has engaged, is engaging or is about to engage—

(a) in corrupt conduct (whether or not specified corrupt conduct), or

(b) in specified conduct (being conduct that constitutes or involves or could constitute or involve corrupt conduct),

is not a finding or opinion that the person is guilty of or has committed, is committing or is about to commit a criminal offence or disciplinary offence.

(3) In this section and section 74A, criminal offence and disciplinary offence have the same meanings as in section 9.

s 74B: Ins 1990 No 80, Sch 1 (10).

74BA

Report may only include findings etc of serious corrupt conduct

74BA Report may only include findings etc of serious corrupt conduct

(1) The Commission is not authorised to include in a report under section 74 a finding or opinion that any conduct of a specified person is corrupt conduct unless the conduct is serious corrupt conduct.

(2) The Commission is not precluded by this section from including in any such report a finding or opinion about any conduct of a specified person that may be corrupt conduct within the meaning of this Act if the statement as to the finding or opinion does not describe the conduct as corrupt conduct.

s 74BA: Ins 2015 No 28, Sch 1 [15].

74C

Reports relating to local government and planning authorities

74C Reports relating to local government and planning authorities

(1) The Commission is authorised to include in a report under section 74 a recommendation that consideration be given to the making of a proclamation under the Local Government Act 1993 that all civic offices in relation to a local government authority be declared vacant if the Commission is of the opinion that systemic corruption exists within the local government authority.

(2) The Commission is authorised to include in a report under section 74 a recommendation that consideration be given to the suspension of a councillor from civic office under the Local Government Act 1993 with a view to his or her dismissal for serious corrupt conduct.

(2A) The Commission is authorised to include in a report under section 74 a recommendation that consideration be given to the suspension of a councillor from civic office under Division 3 (Misbehaviour) of Part 1 of Chapter 14 of the Local Government Act 1993.

(3) The Commission is authorised to include in a report under section 74 a recommendation that consideration be given to the suspension from duty of a member of the staff of a local government authority with a view to the institution of disciplinary or criminal proceedings against the member of staff for serious corrupt conduct.

(3A) The Commission is authorised to include in a report under section 74 a recommendation that consideration be given to the appointment of a person under section 118 of the Environmental Planning and Assessment Act 1979 to administer functions of a council under that Act because of serious corrupt conduct by any of the councillors in connection with the exercise or purported exercise of those functions.

(3B) The Commission is authorised to include in a report under section 74 a recommendation that consideration be given to the suspension of a development consent granted by a consent authority under the Environmental Planning and Assessment Act 1979, or of a modification of such a consent, with a view to its revocation because of serious corrupt conduct by the consent authority or by a councillor or other officer or member of staff of the consent authority in connection with the grant of the consent or modification.

(3C) The Commission is authorised to include in a report under section 74 a recommendation that consideration be given to the removal from office under the Environmental Planning and Assessment Act 1979 of a member of the Independent Planning Commission, of a Sydney district or regional planning panel or of a local planning panel because of corrupt conduct by the member.

(4) The Commission is not to make a recommendation under this section unless the Commission is of the opinion that prompt action is required in the public interest.

(5) This section does not limit any other recommendation that the Commission is authorised to include in a report under section 74 in relation to a local government authority, councillor or member of staff.

(6) This section extends to a report in relation to a matter that has been the subject of an investigation conducted before the commencement of this section.

s 74C: Ins 2002 No 19, Sch 2. Am 2002 No 44, Sch 2; 2005 No 10, Sch 1 [31]; 2008 No 36, Sch 2.4; 2010 No 120, Sch 3.2; 2017 No 39, Sch 6; 2017 No 60, Sch 11.4.

74D

Reports relating to Aboriginal Land Councils

74D Reports relating to Aboriginal Land Councils

(1) The Commission is authorised to include in a report under section 74 a recommendation that consideration be given to—

(a) the suspension of a councillor or Board member from office under Division 3A of Part 10 of the Aboriginal Land Rights Act 1983, or

(b) the taking of action against a member of staff of an Aboriginal Land Council under that Division.

(2) The Commission is not to make a recommendation under this section unless the Commission is of the opinion that prompt action is required in the public interest.

(3) This section does not limit any other recommendation that the Commission is authorised to include in a report under section 74 in relation to a councillor, Board member or member of staff.

(4) This section extends to a report in relation to a matter that has been the subject of an investigation conducted before the commencement of this section.

s 74D: Ins 2006 No 111, Sch 2.3.

74E

Publication of information about time within which investigations and reports on referred matters to be completed

74E Publication of information about time within which investigations and reports on referred matters to be completed

(1) The Commission must publish, on a website maintained by the Commission, information (time standards) about the time within which reports under section 74 will be prepared and given to the Presiding Officer of each House of Parliament under the section.

(2) The time standards must include the following—

(a) the standard timeframes adopted by the Commission for preparing reports and providing the reports to the Presiding Officer of each House of Parliament under section 74,

(b) how the Commission monitors the progress of the preparation of the reports to ensure the reports are dealt with promptly,

(c) what action the Commission takes if the standard timeframes for the preparation of a report are not met.

(3) The Commission must, in each report prepared under section 74—

(a) report on the Commission’s performance against the time standards in relation to preparing the report and providing the report to the Presiding Officer of each House of Parliament, and

(b) give reasons for any failure to comply with the time standards in relation to the preparation of the report.

Note—

The information in this subsection must also be included in the Commission’s annual report under section 76.

s 74E: Ins 2023 No 17, Sch 1[2].

Special reports

75 Special reports

The Commission may, at any time, make a special report to the Presiding Officer of each House of Parliament on any administrative or general policy matter relating to the functions of the Commission.

Annual reports

76 Annual reports

(1) The Commission shall, within the period of 4 months after each 30 June, prepare a report of its operations during the year ended on that 30 June and furnish the report to the Presiding Officer of each House of Parliament.

(2) A report by the Commission under this section in relation to a year shall include the following—

(a) a description of the matters that were referred to the Commission,

(b) a description of the matters investigated by the Commission,

(ba) the following details with respect to matters investigated by the Commission—

(i) the time interval between the lodging of each complaint and the Commission deciding to investigate the complaint,

(ii) the number of complaints commenced to be investigated but not finally dealt with during the year,

(iii) the average time taken to deal with complaints and the actual time taken to investigate any matter in respect of which a report is made,

(iv) the total number of compulsory examinations and public inquiries conducted during the year,

(v) the number of days spent during the year in conducting public inquiries,

(vi) the time interval between the completion of each public inquiry conducted during the year and the furnishing of a report on the matter,

(bb) for each report prepared under section 74—the information referred to in section 74E(3)(a) and (b),

(c) any recommendations for changes in the laws of the State, or for administrative action, that the Commission considers should be made as a result of the exercise of its functions,

(d) the general nature and extent of any information furnished under this Act by the Commission during the year to a law enforcement agency,

(e) the extent to which its investigations have resulted in prosecutions or disciplinary action in that year,

(f) the number of search warrants issued by authorised officers and a Commissioner respectively under this Act in that year,

(g) a description of its activities during that year in relation to its educating and advising functions.

s 76: Am 2002 No 103, Sch 4.47 [7]; 2005 No 10, Sch 1 [32]; 2016 No 65, Sch 1 [3]; 2023 No 17, Sch 1[3].

Reports relating to authorities

77 Reports relating to authorities

(1) The Commission may furnish to the Presiding Officer of each House of Parliament a report setting out a recommendation referred to in section 55 which it is of the opinion should be adopted and the reasons for its opinion.

(2) Such a report shall not be furnished until after the period of 21 days referred to in section 55 (3) has passed.

77A

Special reports

77A Special reports

The Inspector may, at any time, make a special report to the Presiding Officer of each House of Parliament on—

(a) any matters affecting the Commission, including, for example, its operational effectiveness or needs, and

(b) any administrative or general policy matter relating to the functions of the Inspector, and

(c) any other matter relating to the exercise of a function to audit, deal with or assess any matter under section 57B that the Inspector considers warrants the making, in the public interest, of a special report.

s 77A: Ins 2005 No 10, Sch 1 [33]. Am 2011 No 36, Sch 1 [11].

77B

Annual reports of Inspector

77B Annual reports of Inspector

The Inspector is required to prepare, within the period of 4 months after each 30 June, a report of the Inspector’s operations during the year ended on that 30 June and furnish the report to the Presiding Officer of each House of Parliament.

s 77B: Ins 2005 No 10, Sch 1 [33].

Provisions relating to reports

78 Provisions relating to reports

(1) A copy of a report furnished to the Presiding Officer of a House of Parliament under this Part shall be laid before that House within 15 sitting days of that House after it is received by the Presiding Officer.

(1A) The Inspector may include in a report a recommendation that the report be made public forthwith.

(2) The Commission may include in a report a recommendation that the report be made public forthwith.

(3) If a report includes a recommendation by the Commission or the Inspector that the report be made public forthwith, a Presiding Officer of a House of Parliament may make it public whether or not that House is in session and whether or not the report has been laid before that House.

(4) If such a report is made public by the Presiding Officer of a House of Parliament before it is laid before that House, it attracts the same privileges and immunities as if it had been laid before that House.

(5) A Presiding Officer need not inquire whether all or any conditions precedent have been satisfied as regards a report purporting to have been made and furnished in accordance with this Act.

s 78: Am 2005 No 10, Sch 1 [35] [36].

References to Presiding Officers

79 References to Presiding Officers

(1) References in this Part to a Presiding Officer are references to the President of the Legislative Council or the Speaker of the Legislative Assembly.

(2) If there is a vacancy in the office of President, the reference to the President shall be taken to be a reference to the Clerk of the Legislative Council.

(3) If there is a vacancy in the office of Speaker, the reference to the Speaker shall be taken to be a reference to the Clerk of the Legislative Assembly.

79A

Right of response to reports of Commission or Inspector containing adverse findings

79A Right of response to reports of Commission or Inspector containing adverse findings

(1) The Commission is not authorised to include an adverse finding against a person in a report under section 74 unless—

(a) the Commission has first given the person a reasonable opportunity to respond to the proposed adverse finding, and

(b) the Commission includes in the report a summary of the substance of the person’s response that disputes the adverse finding if the person requests the Commission to do so within the time specified by the Commission.

(2) The Commission must not include in the report any information in the person’s response that would identify any person who is not the subject of an adverse finding, unless the Commission—

(a) is satisfied that it is necessary to do so in the public interest, and

(b) is satisfied that doing so will not cause unreasonable damage to the reputation, safety or well-being of a person who is not the subject of an adverse finding, and

(c) includes in the report a statement that the person identified is not the subject of any adverse finding.

(3) This section applies to the Inspector in the same way as it applies to the Commission, and for that purpose a reference in this section to—

(a) a report under section 74 is a reference to a report under section 57B or this Part, and

(b) an adverse finding against a person includes a reference to an adverse finding against the Commission or an officer of the Commission.

(4) In this section—

adverse finding includes an adverse opinion.

s 79A: Ins 2016 No 65, Sch 1 [10].

Part 8A

Protections for persons assisting Commission or Inspector

Part 8A Protections for persons assisting Commission or Inspector

pt 8A: Ins 2022 No 14, Sch 4[5].

79B

Objects of Part

79B Objects of Part

The objects of this Part are—

(a) to adopt protections for the makers of complaints or disclosures of misconduct or wrongdoing that are substantially aligned with the protections available to the makers of public interest disclosures under the Public Interest Disclosures Act 2022, and

(b) to consolidate the protections available under this Act to persons who assist the Commission or the Inspector.

s 79B: Ins 2022 No 14, Sch 4[5].

79C

Interpretation

79C Interpretation

(1) In this Part—

civil proceedings means proceedings instituted under section 79J or 79L.

corrective action has the same meaning as in the Public Interest Disclosures Act 2022.

counselling includes psychological counselling.

detriment has the same meaning as in the Public Interest Disclosures Act 2022.

detrimental action has the same meaning as in the Public Interest Disclosures Act 2022.

detrimental action offence means an offence against section 79I.

disclose information has the same meaning as in the Public Interest Disclosures Act 2022.

legally privileged communication has the same meaning as in the Public Interest Disclosures Act 2022.

limited protected action—see section 79D(3).

position has the same meaning as in the Public Interest Disclosures Act 2022.

primary agency means—

(a) the Commission, or

(b) the Inspector.

protected action—see section 79D(1).

protected obligation—see section 79E.

protected person means a person who takes protected action.

public interest disclosure has the same meaning as in the Public Interest Disclosures Act 2022.

reasonable management action—see section 79F(3).

role has the same meaning as in the Public Interest Disclosures Act 2022.

serious wrongdoing has the same meaning as in the Public Interest Disclosures Act 2022.

(2) In this Part, a reference to a person assisting a primary agency includes a reference to a person who has assisted, is assisting or proposes to assist the primary agency.

s 79C: Ins 2022 No 14, Sch 4[5].

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