What is corrupt conduct?
The National Anti-Corruption Commission commenced operations on 1 July 2023.
Please visit the NACC website for more information.
This page replicates the content of a downloadable fact sheet in an accessible format. To download, see NACC downloadable resources.
To investigate corruption, the Commissioner of the National Anti-Corruption Commission (NACC) must have information raising the possibility that a person has done or could do something that:
- involves, or could involve, a public official
- is, or could be, corrupt conduct under the NACC Act, and
- could involve serious or systemic corrupt conduct.
This page explains what will be corrupt conduct under the National Anti-Corruption Commission Act 2022 (NACC Act). It includes some examples that may help you understand the types of behaviour that may be corrupt.
For more information about who will be a public official under the NACC Act, see Who can the NACC investigate?
What is corrupt conduct?
The NACC may decide to investigate any person who has potentially done something that involves serious or systemic corrupt conduct under the NACC Act. There are 4 types of corrupt conduct under the NACC Act. A person engages in corrupt conduct if:
- they are a public official and they breach public trust
- they are a public official and they abuse their office as a public official
- they are a public official or former public official and they misuse information they have gained in their capacity as a public official
- they do something that could cause a public official to behave dishonestly or in a biased way when they carry out their official duties – any person can engage in this type of corrupt conduct, even if they are not a public official themselves.
A person also engages in corrupt conduct if they try or plan to do any of those things. A public official’s conduct may involve one or more types of corrupt conduct.
Corrupt conduct involving a breach of public trust
A public official can engage in corrupt conduct if their conduct constitutes or involves a breach of public trust.
What is public trust?
Public officials are given powers to make decisions or do other things as part of their official roles. For example, ministers are sometimes given powers under legislation to issue permits or licenses; other public officials have powers to enter into contracts involving the use of public money, or to grant applications for financial assistance. Each of these powers are granted to the public official ‘on trust’ for the Australian public. That means the power must be exercised for the purposes for which the power was granted, not for some other, improper purpose, which may constitute a breach of public trust.
A public official can breach public trust even if they don’t gain any advantage for themselves or someone else. The key element of a breach of public trust is the exercise of an official power for an improper purpose.
Example of using a power for an improper purpose
Tender process: You are the decision maker in a tender process being run by your agency. One of your core responsibilities as decision maker is to ensure the tender is awarded in a way that achieves value for money for the Commonwealth. One of the proposals for the tender process comes from your neighbour, who has had some bad luck with their business recently. Your neighbour’s bid is not terrible, but it isn’t the best value for money. You decide to award the tender to them anyway because you want to help them out.
The reason you awarded the tender is not consistent with your responsibility to ensure the tender achieves value for money. This means you awarded the tender for an improper purpose.
What if the decision maker goes against advice? Is this a breach of public trust?
It is not a breach of public trust for a decision maker to disagree with the advice of other public officials about what is the right decision in a particular case. But in each case, the decision-maker must exercise their power for a proper purpose.
What if the decision is made for an improper purpose but still benefits the public?
This can still be a breach of public trust. Decision-makers often exercise their official powers for more than one purpose. Some of those purposes can be proper and achieve the legitimate purpose for granting that power in the first place. Some could be improper.
In cases like these, ask why the public official is exercising their power or making that decision. If they would not have exercised that power or made that decision ‘but for’ the improper purpose, then their conduct can still be a breach of public trust, even if there may have also been some public interest justifications for the exercise of power or decision.
Corrupt conduct involving an abuse of office
A public official can engage in conduct if they do something that constitutes, involves or is engaged in for the purpose of abusing their office as a public official.
A public official abuses their office if they:
- engage in improper acts or omissions in their official capacity
- know that those acts or omissions are improper
- intend to gain a benefit for themselves or another person, or cause a detriment to another person.
Examples of abuse of office
The selection panel: You are a senior public servant in your agency. Your agency has recently advertised a merit-based process to make a new appointment to a government board. One of your friends from university has told you they would really like to be on that board.
You also know that the chair of the selection panel has applied for a promotion within your agency.
You bump into the chair of the panel in the coffee line and strike up a conversation about their promotion application and their work on the selection panel. You imply that they won’t be considered for the promotion unless they recommend your old university friend be appointed to the board. In the weeks that follow, you contact the chair to remind them of your conversation in the coffee line.
This is an abuse of office because:
- you are using your position of influence in the agency to pressure the chair of the panel into making an official decision for an improper purpose
- as a senior public servant, you know that this is an improper thing to do
- you intend to gain a benefit for your university friend by having them appointed to the board.
The rebate scheme: You are responsible for processing claims for reimbursement under a government rebate scheme. You use confidential client details from legitimate rebate applications to create fake claims and then make the rebate payments into your own bank accounts.
This is an abuse of office because:
- in your official capacity you acted for an improper purpose
- you know that your acts were improper
- you gained a benefit by receiving payments you were not entitled to.
Note: This conduct was the subject of ACLEI’s investigation Operation Fortescue
What is an improper act or omission?
Whether someone’s actions (or failure to do something) are improper will depend on the nature, scope and expectations of their official role and the general standards of conduct expected of public officials.
For example, an act (or failure to act) by a public official could be improper because it:
- involves an undeclared or unmanaged conflict of interest
- involves a misuse of information gained in their capacity as a public official
- breaches an applicable policy in their agency, the APS Code of Conduct, or another applicable rule.
What is a benefit or a detriment?
To commit an abuse of office, a public official must either intend to make something good happen for themselves or someone else (a benefit), or make something bad happen to someone else (a detriment).
A common example of an abuse of office includes financial benefits or detriments, such as:
- obtaining property or money for yourself or someone else
- saving on costs that would otherwise need to be paid
- depriving someone of their property or assets
- causing a significant cost to someone that would otherwise not have arisen.
Or they could be employment or job-related benefits or detriments, such as:
- using agency resources to further a personal business interest
- depriving a person of an employment opportunity.
The public official may still have abused their office even if there is no evidence that they gained a personal benefit.
Corrupt conduct involving the misuse of information
A public official, or a person who has previously been a public official, can engage in corrupt conduct if they do something that constitutes or involves the misuse of information or documents that they have or had access to because of their role as a public official.
Misuse of information or documents acquired in a person’s capacity as a public official covers a very broad range of conduct. For example, a public official might misuse information if they:
- access information on their agency’s IT system that they don’t need to know to do their job
- change or disclose official information when they are not supposed to
- sell classified information or documents to a third party.
There is no need to show that a public official intended to gain a benefit or cause a detriment to another person through the misuse of the information, or to show that they acted dishonestly or in a biased way. It is enough to show that the public official acquired the information or documents in their official role, and that they misused the information.
How do I know if information is being misused?
This will depend on the nature, scope and expectations of a public official’s role and the general standards of conduct expected of public officials.
For example, a public official can misuse information if they:
- access or seek access to information that is not necessary to do their job
- disclose information to another person or public official in breach of the applicable policies in their agency
- mishandle classified documents in breach of official procedures
- misclassify, or fail to classify, sensitive information where this is required
- modify official information when they are not authorised to do so
- disclose information in breach of a law, such as a secrecy obligation.
Corrupt conduct that adversely affects the honesty or impartiality of a public official
Any person who does something that causes or could cause a public official to behave dishonestly or show bias in the exercise of their official functions, powers or duties, could be engaging in corrupt conduct.
A member of the public can cause a public official to be dishonest or biased. Similarly, one public official can cause another public official to behave dishonestly or in a biased way. It is also possible for a public official to cause their own conduct to be dishonest or biased.
This part of the definition of corrupt conduct does not apply to the conduct of judges, the Governor-General and their deputy, Royal Commissioners or the Inspector of the NACC.
Meaning of honest and impartial
For a public official to act honestly, they must do their job truthfully and without lying or trying to deceive anyone.
If someone causes, or tries to cause, a public official to act dishonestly then it could be corrupt conduct. For example, if a person tries to bribe or blackmail a public official to hide evidence that is relevant to a decision or to lie to a decision maker, the first person may have engaged in corrupt conduct, even if the public official doesn’t actually go on to behave dishonestly.
To act impartially means to behave in a way that is unbiased and not prejudiced in favour or against any one group or individual. Employees of the Australian Public Service (APS) and most Commonwealth entities will be familiar with this concept. For example, the APS Values set out in the Public Service Act 1999 require the APS to be apolitical. However, a public official can be partial or biased without being politically biased.
If someone causes or tries to cause a public official to act in a biased way or show an inappropriate preference, then that could be corrupt conduct.
What about advocating for or implementing a particular government policy? Is that corrupt conduct?
In many cases, the role of a particular public official will be to act in a way that favours one group or individual over another. Other people who try to influence public officials to act in one way or another are not engaging in corrupt conduct, providing they are not trying to get the official to behave in a way that is dishonest or to do something for improper purposes.
For example, parliamentarians are elected to represent the people who elect them, and to implement their policy commitments – this is a fundamental feature of our democratic system. People who lobby parliamentarians to support a particular outcome do not engage in corrupt conduct, even if the outcome might favour some people over others, providing they engage with the parliamentarian in an open and transparent way.
Similarly, if the government decides to change a law in a particular way, which might benefit some people more than others, the public officials who are responsible for implementing that decision do not act with bias, or show an inappropriate preference, by working to make the decision happen. It is their role to serve the government of the day by giving effect to their decisions. Ministers or their staff who engage with those public officials to implement the decision are not engaging in corrupt conduct.
What if someone gives a public official false information? Is that corrupt conduct?
Giving false or misleading information to a public official (for example, to claim a benefit you are not entitled to) is fraud. This is a crime that can be investigated by the Australian Federal Police and other agencies.
However, this type of fraud would not usually amount to corruption under the NACC Act. This means that if the public official is not aware that the information is false, and makes their decision for a proper purpose, then the NACC will not have jurisdiction to investigate this kind of conduct.
What if the public official doesn’t actually go on to behave dishonestly or in a biased way?
A person’s conduct could be corrupt if it has the potential to cause a public official to behave dishonestly or in a partial way, even if the public official does not actually end up behaving as the person intended.
For example, as a member of the public, you would engage in this type of corrupt conduct if you:
- offer a public official a bribe to make a decision that favours you, even if the public official doesn’t actually take the bribe
- make plans to offer a public official a bribe
- pressure a friend who is a public official responsible for regulating your business, to give you inside information about how to bypass certain checks. This is corrupt conduct even if your friend has no intention of telling you anything that you could use to your advantage and never does.
A public official engages in this type of corrupt conduct if they:
- ask for a bribe in exchange for making a decision that favours a third party. This is an example of a public official adversely affecting their own impartiality, even if the bribe is never paid.
- pressure another official who is the chair of a selection panel to promote someone even though other candidates are more suitable. The first official has tried to pressure the chair of the panel into acting in a dishonest and biased way, which amounts to corrupt conduct even if the chair of the panel resists the pressure and conducts the recruitment process according to the selection criteria.
Judicial functions and duties
Judicial functions and duties
The definition of corrupt conduct under the NACC Act does not include the conduct of judges. It also does not include conduct engaged in by a staff member of the High Court or another federal court, if the staff member was exercising a power or performing a duty of a judicial nature.
This means, for example, a court registrar’s conduct would be excluded from the NACC’s jurisdiction to the extent they are performing judicial functions or duties. But if a registrar engaged in corrupt conduct that was unconnected to their judicial functions or duties, their conduct could be within jurisdiction.
What is serious or systemic corrupt conduct?
The NACC will only be able to investigate alleged corrupt conduct if the Commissioner of the NACC is of the opinion that it could be serious or systemic. It will be up to the Commissioner of the NACC to decide if they think a particular allegation of corrupt conduct is serious or systemic.
Whether or not something involves ‘serious corrupt conduct’ might depend on a range of factors. For example, the Commissioner of the NACC might consider whether the alleged conduct could involve:
- a criminal offence, and if so, the seriousness of the offence and the maximum penalty if a person is found guilty
- a financial gain or loss, and if so, the amount of money that was gained or lost • a benefit or detriment, and if so, the significance of that benefit or detriment
- the misuse of information, and if so, the sensitivity of the information and the potential harm from an improper disclosure or misuse of that information
- a person who holds a senior or trusted role, and if so, the seniority of the person, the level of trust or influence they exercise in their role, and whether the person should have understood their responsibilities and duties in that role
- a person trying to cause a public official to act dishonestly or in a biased way, and if so, the significance if the public official did behave dishonestly or showed an inappropriate preference.
‘Systemic’ means something that relates to, or affects a system (including an organisation) as a whole, or that involves a pattern of conduct. Corrupt conduct may be ‘systemic’ where it involves a pattern of conduct. Corrupt conduct could be systemic whether it occurs in a single Commonwealth agency or multiple Commonwealth agencies, and whether it involves the conduct of a single individual or multiple individuals. Corrupt conduct may still be systemic if it is not coordinated.
For further information and resources, visit NACC downloadable resources.