Independent Commission Against Corruption Regulation 2017

Several definitions in the Regulation are central to its operation. “Associated person” (cl 4) has a cascading structure. For an individual officer or applicant, it includes any of the individual’s “family associates” or “business associates”. Family associates include the officer’s spouse, dependent children, and such other household or family members as the Chief Commissioner specifies. Business associates include the individual’s employer, the employer’s key personnel (if the employer is a company), partners in any partnership, employees of the partnership, the individual’s own employees, and any other person with a contractual relationship as specified by the Chief Commissioner. For a company engaged under section 104B of the Act, associated persons include the company’s key personnel (directors, secretary, and others specified), the key personnel’s family and business associates, and related bodies corporate under the Corporations Act 2001 (Cth). “Financial interest” (cl 3(1)) means any pecuniary interest or other matter listed in section 110(a)(i)-(xi) of the Act that relates to the officer or applicant, or that relates to any person associated with the officer or applicant. This expands the disclosure net significantly because the interests of associates are treated as the officer’s own financial interests. “Dependent child” is defined as a person under 18 who is a child of the person or of the person’s spouse. “Spouse” includes a legal spouse or a de facto partner, but where more than one person would qualify, only the last person to so qualify is treated as spouse, which prevents polygamous recognition. The Regulation also defines “approved” as approved by the Chief Commissioner from time to time (cl 3(1)). In the NSW Ministerial Code of Conduct, key concepts include “conflict of interest” (Code s 7): a conflict between public duty and private interest where the private interest could objectively have the potential to influence performance of public duty; a Minister is taken to have a conflict if a decision could reasonably be expected to confer a private benefit on the Minister or a family member and the interest is such that it could objectively influence the Minister. “Private benefit” (Code s 11) is broadly defined as any financial or other advantage to a person other than the State, excluding benefits held in common with the public generally or comprising mere hope of enhanced popular standing. “Gift” excludes hospitality and political donations disclosed under the Electoral Funding Act 2018 (formerly the Election Funding, Expenditure and Disclosures Act 1981). “Hospitality” is confined to benefits consumed at a particular event, not including travel or accommodation. “Knowingly” is defined subjectively as awareness that the circumstance or result exists or will exist in the ordinary course of events. “Ruling” refers to a discretionary determination by the Premier under Schedule clause 1, 2, 3 or 12 that a particular interest or course of conduct may be held or undertaken. These definitions establish a regime where both objective and subjective elements operate, and where the web of associated persons extends obligations far beyond the individual officer or Minister.

The Regulation directly affects two primary categories of persons. The first category comprises officers of the Independent Commission Against Corruption and applicants for positions as officers. “Officer” is not redefined in the Regulation but takes its meaning from the Act; it includes the Commissioners, staff members, and any person engaged under section 104B of the Act (such as consultants or contractors). The security and disclosure obligations in Parts 3 and 4 apply to these individuals. The obligations also extend to “associated persons” of the officer or applicant: family members, business associates, directors, secretaries, shareholders, and related bodies corporate of a company engaged under s 104B (cl 4). This means that a spouse, dependent child, employer, or business partner may be required to provide personal particulars, documents, or even fingerprints (cl 8). The second category comprises Ministers of the Crown in New South Wales, including all members of the Executive Council, Parliamentary Secretaries (by extension in the Code), and former Ministers for certain post-separation employment obligations (Schedule Part 5). The NSW Ministerial Code of Conduct applies to all current and future Ministers and Governments (Code s 1(2)). Although the Code is not a comprehensive statement of ethical conduct (Preamble para 10), it imposes binding rules that, if substantially breached, may constitute corrupt conduct and thus attract ICAC investigation (Preamble para 9). The Schedule also applies the disclosure and conflict-of-interest parts to Parliamentary Secretaries (notes to Parts 2, 3, 3A, 4, and 6). Former Ministers are bound by section 10(3) of the Code (misuse of information) and by Part 5 of the Schedule regarding offers of employment after leaving office. The Regulation also affects public authorities and their principal officers. Clause 19 declares affiliated health organisations, statutory health corporations (under the Health Services Act 1997), and certain reserve trusts under the Crown Lands Act 1989 to be “public authorities” for the purposes of the ICAC Act, thereby bringing them within the definition of “public authority” in section 3(1) of the Act. Clause 20 specifies the principal officers of local government councils (general manager), local health districts (chief executive), statutory health corporations (chief executive), and affiliated health organisations (person responsible to the governing body) for the purposes of section 11(5) of the Act. It also specifies principal officers for separate offices within departments, such as the Commissioner of Corrective Services and the Chief Executive of Housing NSW. These designations affect who may receive ICAC reports and who is responsible for implementing ICAC recommendations.

The Regulation imposes extensive duties on Commission officers and applicants, with corresponding powers in the Chief Commissioner to require compliance. Under clause 6, the Chief Commissioner may at any time require a statement of personal particulars in the approved form, accompanied by an authority for release of information and a consent to conduct inquiries, each duly executed by the person to whom the statement relates. The officer or applicant must also furnish a statutory declaration concerning association with known or reputed criminals (cl 6(3)). Clause 7 gives the Chief Commissioner power to require production of documents including birth certificates, marriage certificates, passports, driver’s licences, educational certificates, tax returns, and, for companies or partnerships, constitutions, annual reports, audited financial statements, and tax returns. For officers, clause 8 allows the Chief Commissioner to require fingerprint imprints; the Commission must destroy fingerprints within six months after an application is determined (unless the applicant becomes an officer) or within six months after the officer ceases to be an officer, but retention may be extended if the officer is under investigation (cl 8(3)-(5)). Ongoing duties include immediately notifying any significant change in personal particulars (cl 9) and immediately notifying any conflict of interest (cl 10). Part 4 requires a statement of financial interests upon becoming an officer (cl 11(1)), and the Chief Commissioner may require further statements from officers or applicants, including statements about associated persons (cl 11(2)). Significant changes in financial interests must be notified immediately (cl 12). The Chief Commissioner may exempt any officer or class of officers from Part 4 requirements, with or without conditions, and may revoke such exemptions (cl 13). Clause 14 allows the Chief Commissioner to require further information about any matter disclosed. For Ministers, the Code sets out duties: comply with oaths (s 2), not knowingly breach the law or other applicable codes (s 3), not issue unlawful directions or direct an agency to provide advice with which it does not agree (s 5), act honestly and in the public interest (s 6), not conceal conflicts from the Premier, and not participate in decision-making on matters where aware of a conflict without written Premier approval (s 7). Ministers must not solicit or accept corrupt private benefits (s 8), must not improperly use public property or information (ss 9-10), and must comply with the Schedule. The Schedule prohibits holding or acquiring shares except in diversified arms-length funds or blind trusts unless the Premier rules otherwise (cl 1), prohibits directorships (cl 2), prohibits secondary employment (cl 3), and requires divestiture if directed by the Premier (cl 4). Ministers must make initial and ongoing disclosures to the Premier of their own and immediate family members’ interests (Schedule cl 6-7), promptly disclose conflicts (cl 10), and abstain from decision-making unless the Premier rules otherwise (cl 12). Ministers must not accept commissions from property developers (cl 16A), must not solicit gifts that could create conflicts (cl 17), must handle gifts over $500 by paying the excess or handing to the State (cl 18), and must seek Parliamentary Ethics Adviser advice before accepting certain post-separation employment (cl 23-24). Rights include the ability to apply for Premier’s rulings on permitted interests or conflicts (Schedule cl 27), to obtain exemptions from financial disclosure (cl 13), and to disclose and abstain even where no strict conflict exists (cl 13 of Schedule).

The Regulation does not create criminal offences of its own; enforcement operates through employment consequences and through the ICAC Act’s framework for corrupt conduct. For Commission officers, clause 16 provides that compliance with the Regulation is a condition of the officer’s employment or engagement with the Commission. Failure to comply is sufficient ground for terminating the officer’s employment or engagement, and this clause has effect despite any other condition of employment (cl 16(3)). However, clause 16(4) provides a safe harbour: a person does not fail to comply merely because the person fails to disclose matters of which the person is not aware. This subjective element limits the scope of the termination power to knowing or reckless non-disclosure. The Chief Commissioner also has the power to require further information and documents, and non-compliance could be met with adverse inferences or disciplinary action. For Ministers, enforcement of the Schedule is explicitly a matter for the Premier (Schedule cl 26). The Premier may determine what sanctions apply for a breach; the Regulation does not specify them further, leaving them to the Premier’s discretion. The Note to clause 26 states that the Code has been adopted for the purposes of the ICAC Act. Paragraph 9 of the Preamble to the Code provides that a substantial breach of the Code (including a knowing breach of any provision of the Schedule) may constitute corrupt conduct for the purposes of the Act. This means that the ICAC can investigate alleged breaches and, if substantiated, make a finding of corrupt conduct, which could lead to reports to Parliament and potentially to criminal prosecution if the conduct also amounts to a criminal offence (such as misconduct in public office or bribery, referenced in the notes to Code s 3). The Regulation thus creates a dual enforcement track: internal governmental enforcement by the Premier for Schedule breaches, and external investigation by the ICAC for conduct that amounts to a substantial breach of the Code. The Schedule also provides that a ruling obtained on the basis of inaccurate or incomplete information is not effective and may not be relied upon (Schedule cl 27(1)); this effectively penalises a Minister who seeks to rely on a ruling obtained through non-disclosure. For both officers and Ministers, the Regulation does not prescribe monetary penalties or imprisonment; the consequences centre on loss of office, reputational damage, and potential referral to law enforcement if underlying criminal conduct is revealed. The destruction of fingerprints is mandated by clause 8, but failure to comply by the Commission could be remedied through administrative law. The savings provision in clause 21 ensures continuity of enforcement actions taken under the earlier regulation.

The Regulation operates as a subordinate instrument under the Independent Commission Against Corruption Act 1988. Section 9 of the Act empowers the prescription of applicable codes of conduct, and the Regulation exercises that power by prescribing the NSW Ministerial Code of Conduct. This means that a substantial breach of the Code can be investigated as potential corrupt conduct under the Act, which has its own investigative and reporting powers. The Act’s definition of “public authority” in section 3(1) is expanded by clause 19, which adds affiliated health organisations, statutory health corporations, and certain reserve trusts. This has the effect of bringing those bodies within the ICAC’s jurisdiction over public authorities. Clause 20 specifies “principal officers” for certain public authorities as required by section 11 of the Act, which deals with reporting obligations. The Regulation also references numerous other statutes. The note to section 3 of the Code lists offences under the Crimes Act 1900 (corrupt commissions), the Election Funding, Expenditure and Disclosures Act 1981 (now the Electoral Funding Act 2018) (electoral offences), the State Records Act 1998 and the Government Information (Public Access) Act 2009 (record keeping and access). The definition of “gift” in the Code expressly excludes political donations disclosed under the Electoral Funding Act 2018, creating a boundary between campaign finance law and the gift rules. The ban on commissions from property developers in Schedule clause 16A cross-references the definition of “property developer” in Part 3, Division 7 of the Electoral Funding Act 2018, aligning the two regimes. The Lobbying of Government Officials Act 2011 is noted in relation to post-separation employment restrictions on former Ministers (Schedule note after cl 24(2)). The Government Sector Employment Act 2013 is referenced in the Preamble paragraph 5, reminding Ministers not to place public servants in breach of their ethical obligations. The Constitution Act 1902 is referenced for the oath of office (Code s 2 note) and for disclosures by Members under section 14A (Schedule cl 5). The Interpretation Act 1987 applies generally and provides definitions such as “de facto partner”. The Corporations Act 2001 (Cth) is used to define “related bodies corporate” in clause 4(1)(b)(iii). The Health Services Act 1997 defines “affiliated health organisation” and “statutory health corporation”. The Crown Lands Act 1989 is relevant for reserve trusts for cemeteries. The Subordinate Legislation Act 1989 is referenced for the repeal of the 2010 regulation. The Regulation itself contains a savings provision (cl 21) ensuring that acts, matters, or things done under the 2010 regulation continue in effect, which avoids gaps in ongoing security clearances or disclosures.

The Independent Commission Against Corruption Regulation 2017 commenced on 1 September 2017, as stated in clause 2. It replaced the Independent Commission Against Corruption Regulation 2010, which was repealed on that date by section 10(2) of the Subordinate Legislation Act 1989. Since commencement, the Regulation has been amended on several occasions. Clause 3 (definitions) was amended in 2018 by Act No 28, Schedule 1.15. The nature of this amendment is not specified in the source text, but it indicates that the definition section has been updated. Clause 20 (principal officers of public authorities) was amended in 2017 by Act No 63, Schedule 4.24. This amendment likely reflected machinery-of-government changes, as the clause lists specific offices such as “Aboriginal Affairs, Department of Education” and “Ageing, Disability and Home Care, Department of Family and Community Services”. The Appendix (which contains the NSW Ministerial Code of Conduct) has been amended multiple times: by Act No 30 of 2020, Schedule 1.25; by Act No 26 of 2022, Schedule 2.14; and by Act No 35 of 2023, Schedule 4.18 items [1] and [2]. These amendments are noted at the top of the Schedule to the Code. The specific content of these amendments is not detailed in the source, but they likely reflect updates to the Ministerial Code of Conduct, such as the addition of Part 3A (commissions from property developers) which references the Electoral Funding Act 2018 (enacted in 2018) and may have been inserted by one of the later amending instruments. Practitioners should check the current version of the Regulation on the NSW legislation website to confirm the precise amendments, as the source text only notes the amending Acts and schedule references. The amendment history is relevant for understanding which provisions were in force at particular times, especially in the context of past investigations or prosecutions.

The source text of the Regulation does not reference any litigation directly concerning the Regulation itself. However, the notes to section 3 of the NSW Ministerial Code of Conduct cite several appellate cases as examples of the common law offences that apply to Ministers: R v Quach [2010] VSCA 106 (misconduct in public office), Blackstock v The Queen [2013] NSWCCA 172 (misconduct in public office), R v Allen (1992) 27 NSWLR 398 (bribery), and R v Glynn (1994) 33 NSWLR 139 (bribery). These cases are not decisions on the Regulation but are cited to illustrate the legal context in which the Code operates. They indicate that the conduct prohibited by the Code , such as corruption, misuse of office, and bribery , may also be criminal offences independent of the Code. The Regulation itself has not been the subject of frequent litigation because it is a procedural and administrative instrument. However, the ICAC’s investigations into Ministerial conduct under this Regulation may generate judicial review proceedings. For example, a Minister who is the subject of an ICAC investigation based on an alleged substantial breach of the Code might challenge the ICAC’s jurisdiction or the scope of “corrupt conduct”. No such cases are named in the source, so they cannot be referenced. The savings provision in clause 21 ensures that any act, matter or thing done under the 2010 regulation continues to have effect, which may have implications for ongoing investigations or proceedings that straddle the repeal date. Litigation concerning the predecessor regulation (the 2010 regulation) is not mentioned. For practical purposes, the Regulation is a relatively stable instrument with limited scope for direct challenge; most litigation involving it will be subsumed within broader proceedings concerning the ICAC Act or Ministerial conduct. Practitioners should monitor ICAC investigations and any consequent court proceedings for interpretations of key terms such as “substantial breach” and “knowingly”.

Several provisions in the Regulation create traps for the unwary. For Commission officers, the definition of “financial interest” includes any pecuniary interest or matter listed in section 110(a)(i)-(xi) of the Act not only for the officer but also for any “associated person”. This means an officer must disclose the financial interests of their spouse, dependent children, employer, business partners, and others within the defined categories. The officer may not be aware of all such interests, but the duty to disclose is not limited to matters within the officer’s actual knowledge; the safe harbour in clause 16(4) only protects against termination for failure to disclose matters of which the person is not aware , it does not excuse non-compliance for other purposes. The obligation to notify changes in personal particulars (cl 9) and conflicts of interest (cl 10) uses the word “immediately”, which imposes a strict and urgent timeframe. The Chief Commissioner may require fingerprint imprints not only from the officer or applicant but also from any specified associate of a company or a partner in a partnership (cl 8(2)). Fingerprints must be destroyed within six months after an application is determined or after an officer ceases to be an officer, but if an officer is under investigation at the time of ceasing office, the Commission may retain the fingerprints for the duration of the investigation and any legal proceedings (cl 8(5)). This retention power can extend considerably, and the officer may not be notified. For Ministers, a key trap is the definition of “conflict of interest” in Code section 7(3): a Minister is taken to have a conflict if a decision could reasonably be expected to confer a private benefit on the Minister or a family member and the interest could objectively influence the Minister. This is an objective test; the Minister’s subjective belief that there is no conflict is irrelevant. The duty to disclose a conflict to the Premier under Schedule clause 10 arises even if the interest has previously been disclosed under Part 2 or if the Minister intends to divest the interest. Abstention from decision-making is mandatory unless the Premier issues a ruling (cl 12). The prohibition on holding shareholdings (Schedule cl 1) is extremely broad: a Minister cannot hold any security or interest in a public or private company or business except via a diversified arms-length fund or a blind trust, or with a Premier’s ruling. Transferring the interest to a family member or trust in which the Minister has a beneficial interest does not constitute divestment (cl 1(2) note). The gift rules in Part 4 treat multiple gifts from the same person within six months as a single gift (cl 20(a)), which can cause a lower-value series of gifts to trigger the $500 threshold. Gifts offered by one person on behalf of another are also treated as gifts by that other person (cl 20(b)). The ban on commissions from property developers (Schedule cl 16A) uses the definition of “property developer” from the Electoral Funding Act 2018, which may be broader than the ordinary meaning and could catch real estate agents, builders, or developers. The post-separation employment provisions require a Minister to obtain advice from the Parliamentary Ethics Adviser before accepting an offer that relates to portfolio responsibilities held in the last two years of office; this applies even after the Minister has left office (Schedule cl 24). If the Minister accepts against the adviser’s advice, the advice must be tabled in Parliament (cl 25(3)). A ruling obtained on the basis of inaccurate or incomplete information is ineffective (Schedule cl 27(1)), so a Minister cannot rely on a ruling if they failed to disclose all material facts.

For Commission officers and applicants, compliance begins at the application stage. An applicant must be prepared to provide a statement of personal particulars in the approved form, along with a signed authority for release of information and consent to inquiries (cl 6(1)-(2)). A statutory declaration concerning association with known or reputed criminals must also be furnished (cl 6(3)). The applicant must have available the documents listed in clause 7(2): birth certificate, marriage certificate (if applicable), current passport, driver’s licence, deed of name change, certificate of naturalisation (if applicable), discharge certificate (if applicable), educational and professional qualifications, and most recent tax return and assessment. Fingerprints will likely be required (cl 8). Upon becoming an officer, a statement of financial interests must be furnished immediately (cl 11(1)). The officer should then establish a system to monitor any significant changes in personal particulars (cl 9), financial interests (cl 12), and any actual or perceived conflicts of interest (cl 10). Changes must be notified “immediately”, so prompt internal reporting is essential. All disclosures are to be in the approved form. The officer should also be aware that the Chief Commissioner may at any time require further information (cl 14). The officer should keep copies of all documents furnished and maintain a record of interactions with the Chief Commissioner. If the officer has any doubt about whether a matter constitutes a conflict or a change of interest, it is prudent to disclose it. The safe harbour in clause 16(4) protects only against termination for non-disclosure of matters unknown; but to rely on it, the officer must have acted without knowledge , wilful blindness would likely not qualify. For Ministers and Parliamentary Secretaries, compliance requires immediate action upon appointment. The Minister must divest any prohibited shareholdings, directorships, and secondary employment, or seek a ruling from the Premier under Schedule clauses 1, 2 or 3. Interests can be placed in a diversified arms-length fund or a blind trust with the Premier’s ruling. The Minister must provide the Premier with a copy of their last Parliamentary return, a notice of any events since that return, and a notice of immediate family members’ interests (Schedule cl 6). Ongoing disclosures must be made as events occur (cl 7). Before any meeting of Cabinet or a committee, the Minister should review the agenda to identify potential conflicts and, if a conflict exists, provide written notice to the Premier (cl 10-11) and abstain from participation unless the Premier rules otherwise (cl 12). The Minister must not accept gifts that could create a conflict; for gifts of goodwill over $500, the Minister must either pay the difference to Treasury or hand the gift to the State (cl 18). All gifts and hospitality over $500 must be disclosed to the Secretary of the Cabinet Office (cl 22(3)). Multiple gifts from the same person within six months should be aggregated. For commissions from property developers, the Minister must simply never accept or seek such commissions (cl 16A). For post-separation employment, the Minister must obtain advice from the Parliamentary Ethics Adviser before accepting an offer that relates to portfolio responsibilities held in the last two years (cl 23-24). All applications for rulings must include all material information; rulings should be preserved in the Ministerial Register of Interests. The Minister should also ensure that office staff and immediate family members are aware of the gift rules to prevent indirect inducements (cl 21). The Premier has ultimate enforcement discretion, but compliance records will be critical in any ICAC investigation.