If you are being investigated over a payment, gift, commission or favour, the first question is which offence is alleged. NSW secret commission offences, police bribery and Commonwealth bribery laws have different requirements.
This guide explains the NSW position and identifies when Commonwealth rules may also need separate advice.
At a glance: Corrupt commissions or rewards under section 249B carry a maximum of seven years’ imprisonment. Police bribery under section 200 carries up to seven years, 200 penalty units, or both. An offer can be an offence without a completed payment.
Preserve records and seek advice before responding to investigators.
What counts as bribery in NSW?
A key NSW offence is corruptly giving, offering, receiving or soliciting a benefit connected with an agent’s work for a principal. An ‘agent’ can include an employee, contractor or anyone acting for another person or business. Then, the person or business they act for is called the ‘principal’.
Under section 249A of the Crimes Act 1900 (NSW), an agent includes someone employed by, or acting for, another person. Their employer or the person they act for is the principal. The definition also covers people serving the Crown.
Section 249B covers both sides of a corrupt arrangement:
- Receiving or seeking a benefit: an agent corruptly receives, solicits or agrees to receive or solicit a benefit for themselves or someone else.
- Giving or offering a benefit: a person corruptly gives or offers a benefit to an agent, or to another person with the agent’s consent or at their request.
The provision concerns benefits connected to acts, omissions or favour in the principal’s affairs or business. It can cover a reward for something already done, as well as an inducement for future conduct.
Bribery is not limited to these statutory offences. The Judicial Commission’s guidance on corruption offences also identifies residual common law bribery offences. The charge must be checked before applying a particular test or maximum penalty.
Does a bribe have to be money?
No. A bribe does not have to be cash. Depending on the circumstances, it could be a gift, hospitality, a personal favour or an advantage given to someone else.
Depending on the circumstances, a benefit could involve a gift, hospitality, a personal favour or an advantage directed to someone else. Section 249A defines a ‘benefit’ broadly. It includes money and a benefit that depends on a future event, such as a payment made only if a contract is awarded.
For example, offering a private benefit to an employee to influence the award of a contract may raise section 249B issues. That is an illustration, not a conclusion that every gift or commercial referral is unlawful.
A payment’s label does not settle the question. An invoice describing something as a “consulting fee” or a gift described as a “thank you” still needs to be considered in its full context.
Is every gift, commission or hospitality offer a bribe?
No. The prosecution must prove the elements of the offence. For a section 249B charge, that includes proving the benefit was sought, given, offered or received corruptly. A benefit alone is not enough.
Relevant evidence may include what was said, the recipient’s role, the decision being sought and the surrounding records. The timing of a benefit and any efforts to conceal it may also matter.
Disclosure and workplace policies can form part of that evidence. They should not be treated as an automatic defence, or as substitutes for considering the legislation.
Can an offer be enough if it is rejected?
Yes. Section 249B covers corrupt offers and requests, so a completed payment is not required. It is also not necessary for the recipient to carry out the requested favour.
Keep the complete conversation and documents. A selected message or transaction entry may not reveal the full context, and investigators will examine more than whether a payment ultimately occurred.
What are the penalties for bribery in NSW?
The penalty depends on the charge and the court dealing with it. These are the statutory maxima for the two NSW provisions discussed here.
| Offence | Provision | Statutory maximum |
|---|---|---|
| Corrupt commissions or rewards | Crimes Act, section 249B | Seven years’ imprisonment |
| Bribery or corruption involving a member of the NSW Police Force | Police Act, section 200 | Seven years’ imprisonment, 200 penalty units, or both |
A maximum is not the sentence that every case receives. The court considers the conduct proved and relevant sentencing factors, including the person’s role and any breach of trust.
Bribery can result in substantial imprisonment. The Judicial Commission’s sentencing guidance treats corruption affecting public duties and the administration of justice as serious. Obtain advice about the particular charge rather than relying on a general penalty figure.
What if the allegation involves a NSW police officer?
Section 200 of the Police Act 1990 (NSW) creates a specific bribery offence. It covers a member of the NSW Police Force receiving or soliciting a bribe, whether financial or otherwise.
It also covers giving, offering or promising a bribe or other benefit, or making a collusive agreement, for a prohibited purpose. Those purposes include inducing neglect of duty, influencing the member’s functions or improperly taking advantage of their position.
An allegation about offering money to avoid police action therefore needs advice about section 200. It should not be treated as harmless simply because the offer was refused.
How do Commonwealth bribery laws differ?
Federal offences are separate from NSW offences. The identity of the official and the alleged conduct determine which provisions require consideration.
The Criminal Code Act 1995 (Cth) contains the Commonwealth Criminal Code in its Schedule. Section 141.1 of that Code covers bribery of a Commonwealth public official. Foreign public official bribery is addressed in section 70.2.
The foreign bribery provision concerns benefits intended to improperly influence an official to obtain or retain business or a business or personal advantage. The advantage need not actually be obtained.
There is also a corporate offence of failing to prevent foreign bribery under section 70.5A, with an adequate-procedures defence. These federal provisions have their own penalties and defences; federal company fine formulas should not be presented as the general NSW penalty.
The Attorney-General’s Department explains the foreign bribery framework. Its limited facilitation-payment defence does not create a general permission to make small payments to NSW officials.
Your rights and what you can do now
Get advice about the investigating body’s powers before answering substantive questions or producing a detailed account. An ordinary police interview and a compulsory ICAC examination are different processes, with different legal obligations.
- Preserve records. Keep contracts, invoices, bank records, approval emails, gift registers and complete message threads. Do not delete, alter or backdate documents.
- Keep notices and deadlines. Provide any summons, production notice or court documents to your lawyer promptly.
- Clarify the allegation. Note the offence or conduct mentioned and whether investigators want to speak with you as a witness or suspect.
- Avoid coordinating accounts. Do not ask colleagues or other people involved to change evidence or agree on a version of events.
- Check confidentiality restrictions. A notice or direction may restrict what you can disclose. Ask your lawyer before discussing it with others.
You generally have a right to silence during police questioning, subject to exceptions. Legal Aid NSW explains those rights.
By contrast, ICAC’s witness guidance describes obligations to attend, produce required documents and answer questions truthfully. Do not assume ordinary interview rights allow you to ignore a compulsory examination or notice.
How could a lawyer help your case?
A lawyer can identify the applicable offence and test the evidence about the benefit, the relationship and the alleged corrupt purpose. This can involve reviewing financial records and communications together, rather than in isolation.
They can advise on interview requests, compulsory notices and applicable protections for evidence. If charges follow, they can assess the prosecution case and advise on a defence, appropriate representations or sentencing preparation.
The available response depends on the evidence. A rejected offer, a small amount or a description such as “normal business practice” does not, by itself, resolve the allegation.
Frequently asked questions
Can bribery happen in a private company?
Yes. Section 249B can apply to employees and others acting for a principal. It is not confined to politicians or government officials.
Can the person asking for a bribe be charged?
Yes. Soliciting a corrupt benefit can fall within section 249B. Section 200 separately covers a member of the NSW Police Force soliciting a bribe.
Does an ICAC investigation mean I have been convicted?
No. An investigation or public inquiry is not a criminal conviction. ICAC’s inquiry process and any later criminal prosecution are distinct proceedings.
Is there a safe dollar amount for a gift?
Do not assume there is. The provisions discussed here do not create a general safe gift threshold. The purpose, relationship and other elements of the alleged offence matter.
How O’Brien Criminal & Civil Solicitors can help
Our white-collar crime lawyers can review a bribery allegation and advise on your response. We also assist with ICAC investigations; for a related offence, read our NSW fraud charges guide.
Request initial advice (no-obligation) via the form below or call us on (02) 9261 4281.
This content is for general information purposes only and does not constitute legal advice. You should seek independent legal advice relevant to your specific circumstances.
