Public Official Conduct: Accountability Summary

This summary draws only from the documents loaded to this project. (Links to the NACC resources at bottom of this page). Where a claim derives from a specific document, that is noted. The JX9.4 framework (FrameworkJX9_4.docx) is treated as an analytical framework document, not as legal authority – its cited cases and statutes are noted where relevant but the framework itself is not a primary source, the NACC documents being the primary source.

Part 1: What Conduct Can Be Held to Account

1.1 Corrupt Conduct (NACC Act Sources)

The documents “What is corrupt conduct” and “What can the NACC investigate” establish four categories:

Breach of public trust – a public official exercises an official power other than honestly for the purpose for which it was conferred. This does not require personal advantage. A decision made for an improper purpose remains a breach even if the public benefits.

Abuse of office – a public official engages in improper acts or omissions in their official capacity, intending to gain a benefit for themselves or another, or to cause a detriment to another. Examples given include undeclared conflicts of interest, misuse of information, breaches of agency policy or the APS Code of Conduct, and using agency resources for personal business.

Misuse of information – a current or former public official misuses information or documents they accessed because of their role. No requirement to show intent to benefit or cause detriment. Accessing information without business need, changing or disclosing official information improperly, and selling classified documents are all cited examples.

Adversely affecting the honesty or impartiality of a public official – any man or woman (not only a public official) who does something to adversely affect a public official’s honest and impartial exercise of their functions engages in corrupt conduct. Critically, the public official does not have to actually behave dishonestly – the potential to cause that outcome is sufficient. Offering a bribe that is refused still constitutes corrupt conduct.

1.2 Serious Corrupt Conduct (Guideline – What is serious or systemic corrupt conduct)

The Commissioner’s guideline identifies conduct more likely to qualify as serious:

• significant misuse of public money
• substantial personal benefit obtained
• impact on vulnerable persons (NDIS participants, Child Support customers, Centrelink recipients are named)
• senior decision-makers involved
• major harm to public confidence in government
• commission of a criminal offence
• planning or coordination of deception over an extended period

Specific examples given: procurement manipulation (approving a $1 million contract to a friend while concealing the relationship); soliciting a $250,000 bribe to influence a tender; accepting tickets to a private box at a sporting event in exchange for influencing compliance findings; falsifying grant assessment scores; providing sensitive official information to the media.

Conduct that does not meet the serious threshold includes small-scale one-off misuse of entitlements, approving expenditure without authority but genuinely believing it proper, and accessing information out of curiosity with no further use.

1.3 Systemic Corrupt Conduct (same Guideline)

Systemic conduct is a pattern of behaviour relating to a process or agency. It involves multiple instances, typically multiple officials, reflecting weaknesses in a system – organisational tolerance, organisational pressures, absence of appropriate controls, and participation (whether conscious or not) of multiple agents.

Examples given: an agency-wide pattern of using Commonwealth vehicles and travel entitlements for private purposes, tolerated over time; multiple areas of an agency failing to declare conflicts of interest to influence grant decisions; recruitment and promotion processes influenced by personal relationships rather than merit, embedded in organisational culture; multiple staff at different levels improperly accessing and sharing sensitive information.

Notably, conduct can be systemic without being serious, and vice versa.

1.4 Conduct the JX9.4 Framework Identifies as Legally Actionable

The JX9.4 document identifies several additional heads of accountability for public officials beyond corrupt conduct. These rely on named legal authorities. The relevant ones, with their cited foundations, are:

Misfeasance in public office – an intentional tort. Four elements: (1) the man or woman is a public officer; (2) they exercise or purport to exercise public power in an invalid or unlawful way; (3) the mental element – either targeted malice or knowing unlawfulness combined with reckless indifference to resulting harm; (4) actual damage results. Authority cited: Northern Territory v Mengel (1995) 185 CLR 307.

Ultra vires conduct – acts beyond statutory power are void. Authority cited: Kirk v Industrial Court of NSW (2010) 239 CLR 531, confirming jurisdictional error renders a decision a nullity capable of being quashed.

Breach of procedural fairness / natural justice – the bias rule and the hearing rule. A man or woman affected by a decision is entitled to have it made by an unbiased decision-maker and to have an opportunity to be heard. This is grounded in the Liberty of Subject Act 1354 and Observance of Due Process of Law Act 1368, referenced in APH Infosheet 23 as cited in the JX9.4 document.

Wrongful silence in equity – where a public officer knows a man or woman is operating under a fundamental mistake, stays silent, and takes advantage of that silence to enforce, equity will intervene. Authority cited: Taylor v Johnson (1983) 151 CLR 422.

Duty of care in negligence – conditional, requiring documented foreseeable harm to an identifiable individual in sufficient proximity. Authority cited: Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1.

Part 2: Who Is Subject to Accountability

The documents “What can the NACC investigate” and “Mandatory referrals: a guide” establish the following as public officials within the NACC’s jurisdiction:

• Members and senators of the Australian Parliament, including ministers, and their staff
• Staff members of Commonwealth agencies, including employees, contractors, consultants, and volunteers
• Contracted service providers under Commonwealth contracts
• Subcontractors to contracted service providers
• Secondees to Commonwealth agencies
• Staff members of the NACC itself

Notably, any man or woman – even one who is not a public official – can be investigated if they do something that might cause a public official to carry out their role other than honestly or impartially.

Those outside the NACC’s jurisdiction: judges, the Governor-General and Deputy Governor-General, a Royal Commissioner, the Inspector of the NACC, foreign governments and their contractors.

For intelligence agencies (AGO, DIO, ASIS, ASD, ASIO, ONI), the same standards apply but referral pathways include the IGIS as an alternative or parallel channel.

Part 3: How Accountability Is Achieved

3.1 Mandatory Referral (Mandatory referrals: a guide)

Agency heads and PID officers of Commonwealth agencies must refer suspected serious or systemic corrupt conduct to the NACC as soon as reasonably practicable. They must not wait until their own investigation is complete. The referral must include:

• names of suspected public officials and any private individuals involved
• description of the conduct
• dates and timeframes
• how and when the agency head or PID officer became aware
• identity of potential witnesses
• supporting documents and evidence
• what action the agency has taken or proposes to take
• records of any internal investigation

This is an ongoing obligation – further information obtained must be provided as soon as reasonably practicable.

3.2 NACC Assessment and Investigation (How the NACC assesses corruption issues)

After a referral, the Commission may:

• conduct a preliminary investigation to determine the nature and seriousness of the issue
• investigate alone or jointly with a Commonwealth agency or state/territory entity
• refer the issue to the relevant agency for internal investigation
• refer to another entity for consideration
• take no action

The Commissioner can use compulsory powers in a preliminary investigation, including compelling production of information, documents, and things. The Commissioner can reconsider how to deal with an issue at any time.

3.3 Stop Action Directions (Mandatory referrals: a guide)

After consulting the agency head, the Commissioner can direct an agency to stop taking specific action in relation to a corruption issue if necessary to protect the effectiveness of a Commission investigation. The direction must be revoked when no longer required.

3.4 Procedural Fairness Requirements (procedural_fairness.docx)

Before the Commission can include in an investigation report, publish, or publicly disclose any opinion, finding, or recommendation expressly or impliedly critical of a man or woman, that man or woman must be given:

• a statement of the potential critical finding, the reasons it is under consideration, and a summary of supporting evidence
• a reasonable opportunity to respond

Any response must be considered before a decision is made to include, amend, or exclude the finding. This requirement derives from sections 153, 157, and 231 of the NACC Act.

Procedural fairness does not require that a man or woman whose conduct is referred be informed of a referral when it is received, told how any preliminary investigation is conducted, told the identity of the referrer, or told about allegations the Commission decides not to investigate.

3.5 Protections for Those Who Refer (Mandatory referrals: a guide)

Any man or woman who makes a referral, provides information, or gives evidence is protected from civil, criminal, and administrative liability including disciplinary action. Taking reprisal action against a referrer is a criminal offence punishable by imprisonment.

Exceptions: a man or woman who has engaged in misconduct cannot use disclosure to gain protection from liability for their own conduct. A man or woman who knowingly makes a false or misleading disclosure is not protected.

3.6 Judicial Review and Tort Remedies (JX9.4 – analytical framework only)

The JX9.4 document identifies these pathways but notes these are not primary legal authority sources in themselves:

• Judicial review to quash decisions affected by jurisdictional error (Kirk)
• Damages for misfeasance in public office, including potentially exemplary damages (Mengel)
• Injunctive relief to restrain ongoing unlawful conduct
• Ombudsman complaints for maladministration falling short of tortious conduct
• Administrative review (the Administrative Review Tribunal from 14 October 2024 is named as the primary federal body)

Part 4: What Falls Outside These Mechanisms

The guideline on serious or systemic conduct expressly states the Commission does not generally investigate:

• administrative errors and minor policy breaches without improper purpose or dishonesty
• failure to declare a conflict of interest where there is no element of benefit and/or dishonesty
• performance management issues or workplace grievances
• recruitment and panel outcomes without improper purpose and/or dishonesty
• lower-level misuse of resources such as personal use of office supplies
• individual cases of credit card misuse

Such conduct should, where appropriate, be dealt with by agencies internally or reported to the Australian Public Service Commission.

This summary reflects only what is contained in the project documents. The JX9.4 framework is an analytical document, not a legal authority. Where it cites cases and statutes, those citations are reproduced here as they appear in that document; independent verification of those authorities would be required before reliance.

NACC links

Fact sheets
https://www.nacc.gov.au/resource-centre/nacc-fact-sheets

Reports and Case Studies
https://www.nacc.gov.au/investigation-reports-and-case-studies

Commissioner resigns May 2026
https://www.nacc.gov.au/news-and-media/resignation-national-anti-corruption-commissioner (May 2026)

Last Updated 3 months ago

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