(1) Corrupt conduct is—
- …
- (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
- …
19 A "public official" as defined means any individual "having public official functions or acting in a public official capacity", and relevantly includes a Minister of the Crown (s 3(1)).
20 Section 9 limits the nature of corrupt conduct, providing:
(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.
…
(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…
21 Clause 5 of the Independent Commission Against Corruption Regulation 2017 (NSW) prescribes the NSW Ministerial Code of Conduct (which is set out in the Appendix to that regulation) (the Ministerial Code or Code) as an "applicable code of conduct for the purposes of section 9 of the Act". The effect of its doing so is considered below at [32]ff.
22 Section 11(2) of the Act imposes a duty on persons, including any Minister of the Crown, "to report to the Commission any matter that the person suspects on reasonable grounds concerns or may concern corrupt conduct".
23 Section 13 describes the "principal functions" of the Commission, which include:
(3) …
- (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.
24 Sections 13(4) and 74BA contain a further limitation on the Commission's power to make a finding of "serious corrupt conduct". Section 13(4) states:
