Secret commissions and corrupt benefits in NSW.

What is a secret commission?

Section 249B creates two offences. The first is committed by an agent who corruptly receives or solicits a benefit as an inducement or reward for doing or not doing something in relation to the affairs of their principal, or for showing favour or disfavour to a person. The second is committed by the person who corruptly gives or offers that benefit to an agent.

The idea is straightforward. An agent is meant to act in the interests of the principal. A secret payment that pulls the agent in another direction corrupts that relationship. Both sides of the deal, the giver and the receiver, commit an offence.

Who is an agent?

Agent is defined broadly. It includes an employee, and a person acting for or on behalf of another in any capacity. A purchasing manager, a contractor engaged to assess tenders, a real estate agent, a trustee, and a public official can all be agents for the purposes of the section.

The principal is the person the agent acts for: the employer, the client, or the body the official serves. The relationship of trust between agent and principal is what the offence protects.

What does corruptly mean?

Corruptly is the heart of the offence. It means the benefit is given or received with the intention that the agent will be influenced in their dealings with the principal, in a way that is inconsistent with the agent acting honestly in the principal's interests. A benefit received openly and with the principal's knowledge is not secret and is not corrupt.

Disclosure is often the dividing line. A commission the principal knows about and agrees to is lawful. The same payment kept hidden, and intended to sway the agent, can be a secret commission.

What are the penalties?

The maximum penalty under section 249B is 7 years imprisonment. The offence is a serious indictable offence. Because these matters often involve documents, accounts, and business records, they are frequently investigated over a long period before any charge is laid.

A secret commissions charge can travel with other offences, such as fraud, dishonesty offences, or money laundering where the benefit is moved or concealed. The overall picture drives the way the case is charged and defended.

How are these cases investigated and defended?

Secret commissions cases are built on records: invoices, emails, bank statements, and the terms of the agency. The defence often turns on whether the benefit was disclosed, whether it was intended to influence the agent, and whether the person accused knew the arrangement was improper.

The line between a lawful commission, a referral fee, or a gift and a corrupt benefit can be fine. Contemporaneous records and the presence or absence of disclosure carry weight. Advice early, before any interview or record of interview, protects the person's position.

What if the benefit was disclosed?

Disclosure to the principal is a strong answer. If the principal knew of and agreed to the payment, it is not secret and the corrupt element is hard to prove. This is why the paperwork matters: a documented, approved commission looks very different from a hidden one.

The timing and completeness of disclosure count. A partial or after-the-event disclosure may not be enough. The safe course, in any agency relationship, is to disclose benefits fully and in advance.

Frequently asked.

What is a secret commission?

A benefit given to or received by an agent, corruptly and without the principal's knowledge, as an inducement or reward for the way the agent deals with the principal's affairs. It is an offence under section 249B of the Crimes Act 1900 (NSW).

Who can be charged?

Both sides. The agent who corruptly receives or solicits the benefit, and the person who corruptly gives or offers it. Agent includes employees and anyone acting for another.

What is the maximum penalty?

Seven years imprisonment under section 249B of the Crimes Act 1900 (NSW). It is a serious indictable offence.

Is a normal commission illegal?

No. A commission or referral fee that the principal knows about and agrees to is lawful. The offence is about secret benefits intended to influence the agent against the principal's interests.

What is the best defence?

It depends on the facts, but disclosure is often decisive. If the benefit was disclosed to and accepted by the principal, it is not secret and the corrupt element is difficult to prove. Records that show disclosure are important.

To speak to a criminal defence lawyer, call Aaron Kernaghan on 0421 717 019.

This article is written by Aaron Kernaghan, criminal defence lawyer at Good Legal Lawyers, as at 3 September 2026. It is commentary and reflects the personal opinion of the author only. It is not legal advice, it is not a substitute for advice on your own matter, and it does not purport to be accurate or complete. Any matter referred to may be before the court and any person charged is presumed innocent. For advice on a specific matter, contact Aaron Kernaghan on 0421 717 019 or contact the firm.

More criminal-law commentary by Aaron Kernaghan.

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