Berejiklian v Independent Commission Against Corruption

Catchwords

[1990] HCA 21 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321[1990] HCA 33 Ballina Shire Council v Knapp [2019] NSWCA 146 Balog v Independent Commission Against Corruption (1990) 169 CLR 625[1990] HCA 28 Briginshaw v Briginshaw (1938) 60 CLR 336[1938] HCA 34 Chan v Zacharia (1984) 154 CLR 178[2023] NSWCA 244 Hocking v Director-General of the National Archives of Australia (2020) 271 CLR 1[2020] HCA 19 Hospital Products Limited v United States Surgical Corporation (1984) 156 CLR 41[1984] HCA 64 IW v City of Perth (1997) 191 CLR 1[1997] HCA 30 Kirk v Industrial Court of New South Wales (2010) 239 CLR 531[2010] HCA 1 Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390[2010] HCA 32 Local Government Board v Arlidge [1915] AC 120 Macdonald v RObeid v RObeid v R (2023) 112 NSWLR 402[2023] NSWCCA 250 Macleod v The Queen (2003) 214 CLR 230[2003] HCA 24 Maitland v R (2019) 99 NSWLR 376[2019] NSWCCA 32 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332

Judgment (50 paragraphs)

[1]

990] HCA 28 Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 Chan v Zacharia (1984) 154 CLR 178; [1984] HCA 36 D'Amore v Independent Commission Against Corruption [2013] NSWCA 187 Edge v Pensions Ombudsman [2000] Ch 602 Farah Constructions Pty Limited v Say-Dee Pty Limited (2007) 230 CLR 89; [2007] HCA 22 Greiner v Independent Commission Against Corruption (1992) 28 NSWLR 125 Hartnett t/as Hartnett Lawyers v Bell as Executor of the Estate of the late Mabel Dawn Deakin-Bell (2023) 112 NSWLR 463; [2023] NSWCA 244 Hocking v Director-General of the National Archives of Australia (2020) 271 CLR 1; [2020] HCA 19 Hospital Products Limited v United States Surgical Corporation (1984) 156 CLR 41; [1984] HCA 64 IW v City of Perth (1997) 191 CLR 1; [1997] HCA 30 Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1 Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390; [2010] HCA 32 Local Government Board v Arlidge [1915] AC 120 Macdonald v R; Obeid v R; Obeid v R (2023) 112 NSWLR 402; [2023] NSWCCA 250 Macleod v The Queen (2003) 214 CLR 230; [2003] HCA 24 Maitland v R (2019) 99 NSWLR 376; [2019] NSWCCA 32 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 New South Wales v Bardolph (1934) 52 CLR 455; [1934] HCA 74 Peters v The Queen (1998) 192 CLR 493; [1998] HCA 7 Boardman v Phipps [1967] 2 AC 46 Project Blue Sky Inc v The Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Industrial Relations Secretary of New South Wales [2021] NSWCA 64 R v Boston (1923) 33 CLR 386; [1923] HCA 59 R v Ghosh [1982] QB 1053 R v Love (1989) 17 NSWLR 608 R v Maudsley (2021) 9 QR 587; [2021] QCA 268 R v Obeid (No 2) [2015] NSWSC 1380 Re Day (No 2) (2017) 263 CLR 201; [2017] HCA 14 Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; [2000] HCA 57 South Australia v O'Shea (1987) 163 CLR 378; [1987] HCA 39 Taylor v Public Service Board (New South Wales) (1976) 137 CLR 208; [1976] HCA 36 Washer v Western Australia (2007) 234 CLR 492; [2007] HCA 48 Wilkinson v Osborne (1915) 21 CLR 89; [1915] HCA 92 Woodham v Independent Commission Against Corruption (1993) 30 ALD 390 Workers Compensation Nominal Insurer v Hill [2020] NSWCA 54 Xiao v BCEG International (Australia) Pty Ltd (2023) 111 NSWLR 132; [2023] NSWCA 48 Texts Cited: Anne Twomey, The Constitution of New South Wales (2004, Federation Press) Explanatory Note to Independent Commission Against Corruption Bill 1988 (No 2) (NSW) Independent Commission Against Corruption Bill 1988 (No 2) (NSW) Independent Commission Against Corruption, Investigation into the conduct of the then member of Parliament for Wagga Wagga and then Premier and others (Operation Keppel) (June 2023) Sir Frederick Jordan, Chapters on Equity in New South Wales (6th ed, 1947, Thomas Henry Tennant) Category: Principal judgment Parties: Gladys Berejiklian (Applicant) Independent Commission Against Corruption (Respondent) Representation: Counsel: B Walker SC and H Cooper (Applicant) S Free SC and J Kennedy (Respondent)

[2]

Solicitors: Johnson Winter Slattery (Applicant) Corrs Chambers Westgarth (Respondent) File Number(s): 2023/302494 Publication restriction: Nil

[3]

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

[4]

HEADNOTE [This headnote is not to be read as part of the judgment] The applicant, Ms Berejiklian, was first elected as a member of the New South Wales Legislative Assembly on 22 March 2003. Subsequently, she became a Minister of the Crown. She was the Treasurer between 2 April 2015 and 23 January 2017, and Premier between 23 January 2017 and 5 October 2021. The member representing the electorate of Wagga Wagga between 27 March 1999 and 3 August 2018 was Mr Daryl Maguire. Ms Berejiklian and Mr Maguire were in a "close personal relationship" which commenced before 2016 and ended in September 2020. Conduct At all relevant times, Mr Maguire was and regarded himself as the principal proponent within the State government of funding proposals for two entities in the Wagga Wagga electorate - the Australian Clay Target Association (ACTA) and the Riverina Conservatorium of Music (RCM). In the case of ACTA, by January 2016 funding was sought to build a new clubhouse/national administration office complex on ACTA's national clay target shooting ground in Wagga Wagga. In early December 2016, the applicant as Treasurer approved this funding request being included on the agenda for an Expenditure Review Committee (ERC) meeting on 14 December 2016. At that meeting, a grant of $5.5 million to ACTA was approved. In relation to RCM, by August 2015 funding was sought for the construction of a new conservatorium of music, initially on an area of council land in Wagga Wagga, and later on a government-owned site in that city. In February 2017, RCM submitted a further proposal for its relocation to the government-owned site and refurbishment of existing buildings on that site, and for the later demolition of two buildings on that site and the construction of a new wing containing a recital hall and commercial facilities. On 12 April 2018, the ERC, attended by the applicant as Premier, approved the transfer of the government-owned site to "Arts NSW" for the purpose of relocating RCM there. On 24 April 2018, the ERC endorsed grant funding of $10 million to RCM for the purpose of refurbishing that site. In late August 2018, in the context of a by-election for the seat of Wagga Wagga, the applicant and the then Treasurer agreed to a funding reservation of up to $20 million for the construction of a new recital hall for RCM. Findings In late June 2023, the applicant was the subject of adverse findings made in a two-volume report of the Independent Commission Against Corruption (the Commission) titled "Investigation into the conduct of the then member of Parliament for Wagga Wagga and then Premier and others (Operation Keppel)" (the Report). The Commission made five findings of "serious corrupt conduct" by the applicant for the purposes of the Independent Commission Against Corruption Act 1988 (NSW) (the Act). The first four findings related to the funding proposals described above. The first and third findings included that the applicant had engaged in a "breach of public trust" by exercising her official functions in relation to decisions made concerning funding promised and or awarded to ACTA and RCM without disclosing her close personal relationship with Mr Maguire when she was in a position of conflict between her public duty and private interest. The second and fourth findings included that the applicant had engaged in the "partial" (as distinct from impartial) exercise of her official functions in relation to the ACTA funding and in relation to the RCM funding decision in August 2018. That partial conduct was exercising her official functions influenced by her close personal relationship with Mr Maguire, and her desire to advance or maintain that relationship. The fifth finding was that the applicant had engaged in conduct which constituted or involved a dishonest or partial exercise of official functions. The specific conduct was the applicant's failure and refusal to discharge her statutory obligation to report her actual suspicions that Mr Maguire's activities in relation to three subject matters concerned or might have concerned corrupt conduct. Those subject matters were Mr Maguire's relationships with particular property owners or developers, from whom it was said that Mr Maguire, with others, had the prospect of receiving commissions. Preparation of the Report The Hon Ruth McColl AO SC as an Assistant Commissioner presided over the two public hearings giving rise to the Report. Her appointment as Assistant Commissioner was extended on four occasions, and expired on 31 October 2022. From that date, Ms McColl was engaged as a consultant to the Commission (and thereby continued to be an officer of the Commission) for the purpose of providing it with "services, information or advice". During the period of her appointment as a consultant, Ms McColl continued her participation in the drafting process which preceded the finalisation of the Report. The draft reports contained assessments as to the credibility of witnesses, including the applicant. The drafts were the subject of a substantive review by a panel presided over by the Chief Commissioner, who had ultimate responsibility for the making of the Report. The Report was finalised in late June 2023, and on 29 June 2023 presented to the Presiding Officers of the Legislative Council and Legislative Assembly. The Report was accompanied by a letter signed by the Chief Commissioner which described the Report as "the Commission's report on its investigation" into the conduct of Mr Maguire, the applicant and others. The application for judicial review The applicant's Amended Summons contains 13 grounds of review. With the exception of ground 1, which is directed to the role of Ms McColl in the preparation or making of the Report, each ground raises a basis upon which it is said the Commission made a material error of law in or in relation to its findings supporting one or more of the five "ultimate" findings that Ms Berejiklian had engaged in "serious corrupt conduct". The principal issues raised by the 13 grounds are as follows: (i) whether the assistance provided to the Commission by Ms McColl as a consultant in the preparation of the Report, and specifically in relation to findings involving the assessment of the credibility of witnesses, was outside the limits of her authority; (ii) whether there was any evidentiary material to support the Commission's findings as to whether the applicant had a private interest in, and was influenced by a desire of, maintaining or advancing her close personal relationship with Mr Maguire; (iii) whether under the general law and under the NSW Ministerial Code (the Code) a non-pecuniary personal relationship was capable of amounting to a "private interest" that could give rise to a conflict of interest and public duty; (iv) whether the applicant as a Minister owed a legally enforceable positive duty to act only according to what she believed to be in the public interest, as opposed to a negative obligation not to use her position to promote her own pecuniary interest in circumstances of conflict; (v) whether the applicant's non-disclosure of her personal relationship with Mr Maguire constituted a breach of public trust for the purposes of s 8(1)(c) of the Act; (vi) whether the Commission exceeded its authority and institutional competence by purporting to make findings about the merits of the ACTA and RCM funding proposals; (vii) whether s 7 of the Code and cll 10-12 of the Schedule to the Code (the Schedule) applied to and imposed obligations on the applicant whilst she was Premier; (viii) whether the applicant's exercises of ministerial power in connection with the promising and awarding of funding were constrained by a legal duty to act impartially; (ix) whether the Commission erred in finding that the applicant had engaged in partial exercises of her official functions within s 8(1)(b) of the Act in the absence of a finding that but for an unacceptable reason the applicant would not have engaged in that conduct; (x) whether the Commission erred in finding that the applicant had engaged in partial exercises of her official functions without having first engaged in a comparative exercise addressing how she would have treated "relevantly identical" funding requests; (xi) whether the duty to disclose in s 11(2) of the Act needs to be confined to a "matter" involving some specified subject matter; (xii) whether the Commission reached an illogical or irrational result in finding that the applicant failed to discharge her obligations under s 11(2) of the Act, despite also deciding not to make a statement that consideration be given to obtaining the advice of the Director of Public Prosecutions with respect to the prosecution of the applicant for misconduct in public office; and (xiii) whether a finding that the exercise of official functions was "dishonest" for the purposes of s 8(1)(b) requires that the person the subject of investigation appreciated or realised that his or her conduct was dishonest according to the standards of ordinary people. The Court (Bell CJ and Meagher JA, Ward P dissenting as to issue (i) and as to the consequential orders to be made) dismissed the application, holding: As to (i): (Bell CJ and Meagher JA)

[5]

JUDGMENT

BELL CJ AND MEAGHER JA: The applicant, Ms Berejiklian, was first elected as a member of the New South Wales Legislative Assembly for the electorate of Willoughby on 22 March 2003. Between 2 April 2015 and 23 January 2017, Ms Berejiklian was also Treasurer and Minister for Industrial Relations. On the latter date, she relinquished those earlier positions and assumed the position of Premier. Ms Berejiklian resigned as Premier on 5 October 2021 and from Parliament on 30 December 2021.
In late June 2023, the applicant was the subject of adverse findings made in a two-volume report of the respondent (ICAC or the Commission) titled "Investigation into the conduct of the then member of Parliament for Wagga Wagga and then Premier and others (Operation Keppel)" (the Report). The member representing the electorate of Wagga Wagga between 27 March 1999 and 3 August 2018 was Mr Daryl Maguire. The adverse findings against Ms Berejiklian included that she had engaged in "serious corrupt conduct" in the exercise of her official functions in connection with funding promised and or awarded in 2016 and 2017 to the Australian Clay Target Association (ACTA) and in 2018 to the Riverina Conservatorium of Music (RCM) in two stages.
The applicant seeks judicial review of the Commission's adverse findings against her. She does so by raising 13 grounds of review. For the reasons which follow, each of these 13 grounds must be rejected, and the proceedings dismissed with costs.

[6]

The present proceedings

The proceedings before this Court invoke the Supreme Court's supervisory jurisdiction under Supreme Court Act 1970 (NSW), s 69. Under s 48(2) of that Act, proceedings invoking that jurisdiction in respect of any matter before a "specified tribunal" (as to which see s 48(1)(a)) are assigned to the Court of Appeal. ICAC is not such a tribunal. Nevertheless, the present proceedings were commenced in the Court of Appeal exercising that original jurisdiction, and as such were to be taken as "well commenced", and, subject to any order of the Court of Appeal remitting the proceedings for hearing by a judge in a Division of the Supreme Court, were able to be continued and disposed of in this Court (s 51(2)). Because of the public importance of the proceedings, when they were first before this Court for directions, no order was made for their remission to a Division, the result being that they should continue in, and be disposed of by, the Court of Appeal exercising the Supreme Court's supervisory jurisdiction.
That jurisdiction is confined to ensuring that the Commission carried out its investigative and reporting functions, including with respect to the making of findings of "serious corrupt conduct", in accordance with the statutory provisions which govern the performance of those functions and exercise of the relevant powers. As Brennan J said in Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35-36; [1990] HCA 21, "[t]he duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power".
The consequence is that the present proceedings are not an opportunity for this Court to undertake a "merits" review of the Commission's findings, as it might do in its appellate jurisdiction in an appeal by way of rehearing. As Brennan J also said in Quin (at 36): The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone. The consequence is that the scope of judicial review must be defined not in terms of the protection of individual interests but in terms of the extent of power and the legality of its exercise. (Emphasis added.)
In this context, it is important to note that the making of findings of fact where there is "no evidence" in support of the finding is an error of law going to the legality of the exercise of the Commission's fact-finding function (Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390; [2010] HCA 32 at [91]). Moreover, as Brennan J observed in Quin at 36, the extent or exercise of statutory powers conferred on a repository may be subject to "implied limitations". Such implications could support the application in judicial review proceedings of a "standard of legal reasonableness" (Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 at [66] (Hayne, Kiefel and Bell JJ)) to the ultimate decision of the tribunal or fact-finder. The position is less clear in relation to the application of such a standard to a step in the reasoning to such a decision (see Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Industrial Relations Secretary of New South Wales [2021] NSWCA 64 at [70] (Bathurst CJ, Bell P, Leeming JA)). In any event, none of this involves substituting a court's view as to the factual merits of a decision for that of the decision-maker (Li at [66] (Hayne, Kiefel and Bell JJ), citing Quin at 36-37).

[7]

Mr Maguire and the ACTA and RCM funding proposals

At the relevant times, Mr Maguire was and regarded himself as the "principal proponent" within the State government of the ACTA and RCM funding proposals (Report at [11.3]). In the case of ACTA, by January 2016 funding was sought to build a new clubhouse/national administration office complex on ACTA's national clay target shooting ground in Wagga Wagga ([11.23]). In early December 2016, the applicant as Treasurer approved this funding request being included on the agenda for the Expenditure Review Committee (ERC) meeting on 14 December 2016. At that meeting, a grant of $5.5 million to ACTA was approved unanimously. The Commission made factual findings that, subsequently, Ms Berejiklian "caus[ed] steps to be taken by staff from her office to follow up on the progress" of that proposal ([11.460.4]).
In relation to RCM, by August 2015 funding was sought for the construction of a new conservatorium of music, initially on an area of council land in Wagga Wagga, and later on a government-owned site in that city ([12.6]-[12.13]). In February 2017, RCM submitted a further proposal for its relocation to the government-owned site and refurbishment of existing buildings on that site (together referred to as RCM Stage 1); and for the later demolition of two buildings on that site and the construction of a new wing containing a recital hall and commercial facilities (together referred to as RCM Stage 2) ([12.21]).
On 12 April 2018, the ERC, attended by the applicant as Premier, approved the transfer of the government-owned site to "Arts NSW" for the purpose of relocating RCM there ([12.84]). On 24 April 2018, the ERC endorsed grant funding of $10 million to RCM for the purpose of refurbishing and repurposing that site ([12.90]). In late August 2018, in the context of the election campaign preceding the by-election in Wagga Wagga in September 2018 (resulting from Mr Maguire's resignation from Parliament), the applicant as Premier and the then Treasurer, Mr Perrottet, agreed to a funding reservation of up to $20 million for the construction of the recital hall component of RCM Stage 2 ([12.136]-[12.137]).

[8]

The "close personal relationship"

The Commission found that Ms Berejiklian and Mr Maguire were in a "close personal relationship" which ended in September 2020. The Commission found that this relationship, being "one of mutual love and a mutual close emotional connection", had the "capacity… to influence" Ms Berejiklian's conduct "both personally and in the performance of her public duties" ([10.38]).
In assessing the nature of the relationship, the Commission relied in part on lawfully obtained recordings of telephone conversations and electronic copies of text messages between the applicant and Mr Maguire, as well as its assessment of the applicant's evidence. One such exchange via telephone occurred on 14 February 2018 ([10.20], partially extracted below at [115]). Referring to that exchange and the applicant's evidence explaining it, the Commission reasoned (at [10.29]): … this evidence is relevant to the consideration of her exercise of her official functions in relation to the [ACTA] and the [RCM] proposals dealt with later in the report. While it may not have been, as Ms Berejiklian submitted, her real view of the dynamic between them, her concern to address what she perceived as Mr Maguire's insecurities can, as a matter of human experience, be expected to have manifested itself in a continuing desire to assuage his feelings and support him to the best of her ability. That would include supporting him bringing to fruition two Wagga Wagga projects for which he was a fervent advocate.

[9]

The Commission's findings of "serious corrupt conduct"

Ms Berejiklian's Amended Summons (Judicial Review) identifies the decisions sought to be reviewed by this Court as the Commission's findings that she engaged in "serious corrupt conduct". Those findings are set out at [1.5] of the Report: 1.5. The Commission finds that Ms Berejiklian engaged in serious corrupt conduct by: 1.5.1. in 2016 and 2017, breaching public trust by exercising her official functions in relation to funding promised and/or awarded to the Australian Clay Target Association (ACTA) without disclosing her close personal relationship with Mr Maguire when she was in a position of a conflict of interest between her public duty and her private interest which could objectively have the potential to influence the performance of her public duty. Her conduct comprised: 1.5.1.1. causing the ACTA proposal to be included on the agenda for the Expenditure Review Committee (ERC) meeting of 14 December 2016 1.5.1.2. supporting the ACTA proposal in the ERC meeting of 14 December 2016 1.5.1.3. communicating her support for and interest in the ACTA proposal to NSW Treasury staff, at least one ministerial colleague (John Barilaro) and staff within her office 1.5.1.4. causing steps to be taken by staff from her office to follow up on the progress of the ACTA proposal following the ERC ACTA decision, including by communicating a request that the initial benefit cost ratio calculation of 0.88 by the Department of Premier and Cabinet Investment Appraisal Unit be revisited 1.5.2. in 2016 and 2017, partially exercising her official functions in connection with funding promised and awarded to ACTA by exercising her official functions influenced by the existence of her close personal relationship with Mr Maguire and by a desire on her part to maintain or advance that relationship (chapter 11) 1.5.3. in 2018, breaching public trust by exercising her official functions in relation to decisions concerning the Riverina Conservatorium of Music ("the RCM") proposal which she knew was advanced by Mr Maguire in: 1.5.3.1. participating in the 12 April 2018 ERC decision concerning RCM Stage 1 in relation to the transfer of land at 1 Simmons Street, Wagga Wagga, to provide a site for the RCM 1.5.3.2. participating in the 24 April 2018 ERC decision concerning RCM Stage 1 in relation to the funding granted to RCM Stage 1 1.5.3.3. determining to make a funding reservation of $20 million in relation to RCM Stage 2 1.5.3.4. approving the letter arranging for that funding reservation to be made without disclosing her close personal relationship with Mr Maguire, when she was in a position of a conflict of interest between her public duty and her private interest in maintaining or advancing her close personal relationship with Mr Maguire, which could objectively have the potential to influence the performance of her public duty 1.5.4. in 2018, in connection with funding promised and awarded to RCM Stage 2 engaging in conduct constituting or involving the partial exercise of her official functions influenced by the existence of her close personal relationship with Mr Maguire, or by a desire on her part to maintain or advance that relationship (chapter 12) 1.5.5. refusing to discharge her duty under s 11 of the ICAC Act to notify the Commission of her suspicion that Mr Maguire had engaged in activities which concerned, or might have concerned, corrupt conduct (chapter 13).

[10]

The Commission and the ICAC Act

ICAC was constituted by the Independent Commission Against Corruption Act 1988 (NSW) (the Act). The principal objects of that Act include "to promote the integrity and accountability of public administration" by the creation of an "independent and accountable body to investigate, expose and prevent corruption involving or affecting public authorities and public officials" (s 2A). The principal functions of the Commission include investigating complaints as to corrupt conduct and any matter referred to the Commission by both Houses of Parliament, and communicating to appropriate authorities the results of its investigations (s 13(1)). They also include specific powers to make findings and form opinions as to whether particular persons have engaged in "corrupt conduct" (s 13(3)(a)). The powers conferred on the Commission to enable it to perform these functions include to conduct investigations, and, where necessary, to conduct compulsory examinations and public inquiries (ss 20, 30, 31).
The central provisions of the Act and other legislation relevant to the Commission's findings of "serious corrupt conduct" are set out below.

[11]

ICAC Act

For the purposes of the Act "corrupt conduct is any conduct which falls within the description of corrupt conduct in section 8, but which is not excluded by section 9" (s 7(1)).
Section 8 relevantly provides: 8 General nature of corrupt conduct (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 …
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)).
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…
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.
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".
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.

[12]

The NSW Ministerial Code

Following a preamble, which does not form part of the Code but to which regard may be had in the interpretation of its provisions (Code, s 12(1)), s 1(2) provides that the Code applies "to all current and future Ministers and Governments".
Section 4 of the Code requires compliance with the Schedule to the Code (the Schedule), and provides that a "substantial breach" of the Schedule, if done knowingly, is a "substantial breach" of the Code. Part 3 of the Schedule, headed "Conflicts of interest", addresses among other topics the duty to disclose conflicts of interest (cl 10), the form of disclosure (cl 11), and the obligation of a Minister to abstain from decision-making in the face of a conflict of interest (cl 12).
Sections 6 and 7 of the Code provide: 6 Duty to act honestly and in the public interest A Minister, in the exercise or performance of their official functions, must not act dishonestly, must act only in what they consider to be the public interest, and must not act improperly for their private benefit or for the private benefit of any other person. 7 Conflicts of interest (1) A Minister must not knowingly conceal a conflict of interest from the Premier. (2) A Minister must not, without the written approval of the Premier, make or participate in the making of any decision or take any other action in relation to a matter in which the Minister is aware they have a conflict of interest. (3) A conflict of interest arises in relation to a Minister if there is a conflict between the public duty and the private interest of the Minister, in which the Minister's private interest could objectively have the potential to influence the performance of their public duty. Without limiting the above, a Minister is taken to have a conflict of interest in respect of a particular matter on which a decision may be made or other action taken if: (a) any of the possible decisions or actions (including a decision to take no action) could reasonably be expected to confer a private benefit on the Minister or a family member of the Minister, and (b) the nature and extent of the interest is such that it could objectively have the potential to influence a Minister in relation to the decision or action.
Section 11 of the Code contains definitions which also apply to the Schedule, in each case "unless the context otherwise requires". The definition of "Minister" includes "any Member of the Executive Council of New South Wales". Section 11 defines "conflict of interest" as having "the meaning given by section 7(3) of this Code".

[13]

The effect of prescribing the Ministerial Code under s 9(3) of the Act

As set out at [20] above, s 9(1)(d) of the Act provides that conduct of a Minister falling within the scope of s 8 does not amount to "corrupt conduct" unless, in the case of a Minister of the Crown, it could constitute or involve inter alia a "substantial breach of an applicable code of conduct", relevantly the Ministerial Code.
The effect of prescribing the Code under s 9(3) of the Act as "an applicable code of conduct" is, according to the note which follows s 1 of the Code: … that a suspected breach of the Code may be investigated by the Independent Commission Against Corruption and, if substantiated, give rise to a finding of corrupt conduct. …
That conduct amounting to a substantial breach of the Code could give rise to a finding of "corrupt conduct" would appear to follow only if, consistently with the scheme of ss 8 and 9 of the Act, the relevant breach of the Code was also "corrupt conduct" within the more general language of s 8(1), (2) or (2A). That observation is not controverted by the note because regard can only be had to the note in the interpretation of provisions of the Code (s 12(1)), and not those of the Act, and because the note does not form part of the Act for the purposes of Interpretation Act 1987 (NSW), s 35.

[14]

The five findings of "serious corrupt conduct"

The Commission's five findings of "serious corrupt conduct" by the applicant are contained in [1.5.1]-[1.5.5] of the Report, extracted above at [13].
The first and third of those findings (at [1.5.1] and [1.5.3]) are that the applicant engaged in what amounted to conduct by a public official that constituted or involved a "breach of public trust" (s 8(1)(c) of the Act) ([11.460], [12.223]), which was a substantial breach by a Minister of s 7(2) of the Code, and cll 10(1), 11 and 12 of the Schedule (see s 9(1)(d) and (3), and s 13(3A) of the Act) ([11.489]-[11.491], [12.256]-[12.258]), and constituted "serious corrupt conduct" within s 74BA(1) of the Act ([11.513], [12.263]-[12.264]). That conduct was exercising her official functions in relation to decisions made concerning funding promised and or awarded to ACTA and RCM Stages 1 and 2 without disclosing her close personal relationship with Mr Maguire, when she was in a position of conflict of interest between her public duty and private interest which could objectively have the potential to influence the performance of her public duty.
The second and fourth of those findings (at [1.5.2] and [1.5.4]) are that the applicant engaged in what amounted to conduct by a public official that constituted or involved the partial (as distinct from impartial) exercise of that person's official functions (s 8(1)(b) of the Act) ([11.594], [12.314]), which was a substantial breach by a Minister of s 6 of the Code (see s 9(1)(d) and (3), and s 13(3A) of the Act) ([11.624]-[11.626], [12.328]-[12.331]), and constituted "serious corrupt conduct" within s 74BA(1) of the Act ([11.636], [12.341]). That conduct was exercising her official functions in relation to ACTA and RCM Stage 2 funding influenced by her close personal relationship with Mr Maguire and her desire to advance or maintain that relationship.
The fifth of those findings (at [1.5.5]) is that the applicant engaged in what amounted to conduct by a public official that constituted or involved the dishonest or partial exercise of her official functions (s 8(1)(b) of the Act) ([13.389]), which was a substantial breach of s 6 of the Code (see s 9(1)(d) and (3), and s 13(3A) of the Act) ([13.402]-[13.404]), and constituted "serious corrupt conduct" within s 74BA(1) of the Act ([13.405]). That conduct was the applicant's failure and refusal to discharge her obligations under s 11(2) of the Act to report her actual suspicions that Mr Maguire's activities in relation to the "Badgerys Creek land deal", "Country Garden and Mr Hawatt" and "Mr Demian" subject matters (as to which see [282]-[289] below) concerned, or might have concerned, corrupt conduct.

[15]

The grounds of review: overview

There are 13 grounds of review. With the exception of ground 1, which is directed to the role of the Hon Ruth McColl AO SC in the preparation or making of the Report, each ground raises a basis upon which it is said the Commission made a material error of law in or in relation to its findings supporting one or more of the Commission's "ultimate" findings that Ms Berejiklian engaged in "serious corrupt conduct". Ground 2, the "no evidence" ground, is said to relate to each of the Commission's above findings of "serious corrupt conduct". Grounds 3, 4, 5, 6 and 7 are directed (not necessarily exclusively) to the findings of a breach of "public trust". Grounds 6, 8, 9 and 10 relate to the findings as to a partial exercise of official functions; and grounds 9, 11, 12 and 13 to the finding as to a breach of the duty under s 11 of the Act.
These grounds of review are dealt with below in the order in which they arise.

[16]

Ground of review 1

In terms, this ground is: The Report dated June 2023 was prepared by the Hon Ruth McColl AO SC beyond her authority under the ICAC Act, in circumstances where she was not authorised to exercise the function of preparing or making a report from 1 November 2022 onwards, as that function was exclusively exercisable by a Commissioner or (through a delegation under s 107(6) of the ICAC Act) an Assistant Commissioner. The Commission's purported "adopt[ion]" of Ms McColl AO SC's findings and opinions in the Report, including as to witness credibility assessments (R [2.37]), was not a valid means of curing Ms McColl AO SC's lack of authority, and those opinions and findings cannot amount to opinions and findings of the Commission.
The following provisions of the Act have particular relevance for this ground.

[17]

Relevant statutory provisions

The Commission is a corporation and consists of a Chief Commissioner and two other Commissioners (ss 4(1), 5(1)). With few exceptions, the functions of the Commission are exercisable by a Commissioner, and any act, matter or thing done in the name of, or on behalf of, the Commission by a Commissioner is taken to have been done by the Commission (s 6(1)). The exceptions include a decision to conduct a public inquiry under s 31, which must be authorised by the Chief Commissioner and at least one other Commissioner (s 6(2)). However, where a Commissioner considers there may be a conflict of interest in such a matter, the Commissioner may request an Assistant Commissioner to give that authorisation (s 6(4)).
With the concurrence of the Chief Commissioner, the Governor may appoint one or more Assistant Commissioners who may exercise the "functions conferred or imposed on an Assistant Commissioner by or under this or any other Act" (ss 6A(1), (2)). An Assistant Commissioner is "to assist the Commission, as the Chief Commissioner requires" (s 6A(3)). In addition, s 104B provides that the Commission "may engage any suitably qualified person to provide the Commission with services, information or advice".
As stated at [15] above, the principal functions of the Commission include to investigate allegations or complaints as to corrupt conduct, to investigate any matter referred to the Commission by both Houses of Parliament, and to communicate to appropriate authorities the results of those investigations (s 13(1)). Those functions also include the making of findings "on the basis of the results of its investigations" (s 13(3)(a)). They may include findings that particular persons "have engaged, [or] are engaged… in corrupt conduct", as well as findings of fact more generally (s 13(3), (5)).
As also stated at [15] above, the Commission may for the purposes of an investigation conduct a compulsory examination (s 30) or a public inquiry (s 31). Such an inquiry is to be conducted by a Commissioner or by an Assistant Commissioner, as determined by the Chief Commissioner (s 31(4)).
By the terms of s 6(1), the Commission's function of making a report (s 74) is exercisable by a Commissioner, including the Chief Commissioner.
In relation to a matter referred to the Commission by both Houses of Parliament, the Commission is required to "prepare" a report "as directed by those Houses" (s 74(2)). The Commission is also required to "prepare" a report in relation to a matter which has been the subject of a public inquiry unless the Houses of Parliament give different directions (s 74(3)). More generally, the Commission "may prepare" reports in relation to any matter that has been or is the subject of an investigation (s 74(1)).

[18]

The Operation Keppel investigation and preparation of the Report

The investigation which became known as Operation Keppel was conducted on the Commission's own initiative arising from evidence obtained in another investigation (Operation Dasha). Initially, Operation Keppel concerned the conduct of Mr Maguire. On 1 September 2020, the Commission announced that it would hold a public inquiry as part of its investigation into allegations concerning Mr Maguire. Following the first public inquiry (which concluded on 16 October 2020), the Commission became aware of further allegations concerning grants of public moneys made to ACTA in 2016, and on two occasions to RCM in 2018. In each case, Mr Maguire had been an advocate for those grants, and the applicant had presided over or been a member of the ERC which had approved them. In addition, during its investigation of Mr Maguire, the Commission had become aware of the relationship between Mr Maguire and the applicant. On 30 September 2021, the Commission determined to conduct a further public inquiry for the purpose of investigating allegations involving the applicant. That second public inquiry commenced on 18 October 2021 and concluded on 1 November 2021.
Earlier, on 15 July 2020, Ms McColl had been appointed an Assistant Commissioner of ICAC on a part-time basis commencing on that day and until 28 February 2021. By an instrument dated 16 July 2020, the then Chief Commissioner, the Hon Peter Hall QC, delegated to Ms McColl certain powers and functions. Those powers and functions included the powers of the Commission and of a Commissioner under Div 2 of Pt 4 of the Act (Investigations); Div 3 of Pt 4 (Compulsory examinations and public inquiries) except the power to issue a warrant for the arrest of a person; the functions of the Commission under Div 5 of Pt 4 (Miscellaneous), which are not presently relevant; and the powers of a Commissioner under Pt 10 in dealing with contempt of the Commission (except for the power to issue a warrant for the arrest of a person). Finally, and again not presently relevant, the power of the Commission to direct non-publication (s 112(1) of the Act) was also conferred. Most significantly, the Chief Commissioner's delegation did not include the function of "making a report under this Act".
Ms McColl's appointment as an Assistant Commissioner was extended on four occasions: on 17 February 2021, to 30 June 2021; on 26 May 2021, to 31 December 2021; on 15 December 2021, to 30 June 2022; and on 8 June 2022, to 31 October 2022. That last date was after Ms McColl had presided over the two Operation Keppel public inquiries, the first concerning conduct of Mr Maguire, and the second concerning that conduct, as well as conduct of the applicant. Following that second inquiry, written submissions were received from Counsel Assisting and affected parties, including the applicant. The last of those submissions was received on 18 October 2022.

[19]

The evolving arguments regarding ground 1

The formulation of ground 1 and the argument in support of it focus on Ms McColl's participation in the drafting and preparation of what became the Report at a time after she had ceased to be an Assistant Commissioner on 31 October 2022. As that argument evolved, it concentrated on Ms McColl's participation in the process of making of credit assessments of witnesses, and specifically Ms Berejiklian. Ultimately, it is contended that Ms McColl, who had conducted the public inquiries as an Assistant Commissioner, was the only person in a position to make such credit assessments of witnesses based on demeanour. As Ms McColl's participation in the preparation of draft reports extended beyond her appointment as Assistant Commissioner, questions arise as to whether she could assist in the making and communications of such observations and assessments for the benefit of the Chief Commissioner, and do so while a consultant rather than an Assistant Commissioner, and whether the Commission could in the Report adopt or take into account observations and assessments made or communicated by Ms McColl whilst a consultant to the Commission.
As Assistant Commissioner, Ms McColl had not been delegated the function of "making a report" under the Act. In that capacity, as an officer of the Commission, she was required to "assist the Commission, as the Chief Commissioner requires" (s 6A(3)). Where the Chief Commissioner had not conducted the public inquiries but had the function of "making a report" in relation to the Operation Keppel investigations, Ms McColl's role whilst an Assistant Commissioner included providing the Chief Commissioner with the benefit of her observations and assessments as to the credibility of witnesses.
Ms McColl made such assessments, and communicated them to the Commission's review panel in the form of a draft report or reports. In the Report at [2.37]-[2.38], the Commission described how it had adopted or taken into account assessments made by Ms McColl, making clear that what was contained in the Report were findings of fact, including witness assessments, of the Commission: Witness credibility 2.37. During this investigation, the Commission heard evidence from a large number of witnesses, some of whom gave evidence on more than one occasion. Aside from independent or objective evidence against which the credibility of witnesses may be assessed, including contemporaneous notes or other records - such as lawfully intercepted telephone calls, emails and text messages, evidence given by disinterested witnesses, the incontrovertible facts and the probabilities involved - the Commission adopts assessments made by the presiding Assistant Commissioner, the Hon Ruth McColl AO SC, who has had regard to other factors in determining the credibility of a witness and the evidence they gave. These factors include the responsiveness or otherwise of answers, a reluctance or otherwise to make appropriate concessions, whether the evidence given was direct or obfuscatory, and whether the witness was cooperative or argumentative. 2.38. Assessments as to witness credibility and reliability are important factors for the Commission to consider in properly weighing the evidence and making findings of fact that are available on that evidence. Witness assessments are included in the relevant chapters of this report. (Emphasis added.)

[20]

The arguments as formulated in the written submissions

The applicant's written submissions contended that the function of "making a report" in s 107(4)(b) and the expression "making a report" in s 74(8) are each to be understood as a "compendious term encompassing the twin functions of 'prepar[ing]' and 'furnish[ing]' reports". In this context, "preparing" was said to include Ms McColl's producing and amending a draft report, and her participating in the review or editing process which resulted in the publication of the Report. On this construction of that expression, Ms McColl, as an Assistant Commissioner to whom the function of "making" the Report had not been delegated, would not have been authorised to participate in a drafting process that included her providing witness credibility assessments.
The expression "making a report" is used in ss 18(2)(c), 74(8) and 107(4)(b) of the Act, and is to be contrasted with the language "prepare reports" and "furnish reports" used in s 74(1)-(4). Statements that the Commission may or shall "prepare" reports describe a process and outcome likely to involve various officers and staff, as well as resources, of the Commission, and over a significant period of time. The function of "making a report" is much more specific. The report is directed to a particular body, in this case Parliament, and the function of making it is to be exercised by a Commissioner, that being the default position as stated in s 6(1), unless that function has been delegated to an Assistant Commissioner in the circumstances described in s 107(6). The exercise of that function includes, from the perspective of a Commissioner as ultimate decision-maker, undertaking responsibility for the final form of a report, including its findings, opinions, recommendations and reasons. As the Commission submits, the "making" of a report describes the exercise of "presenting findings to Parliament [concerning the outcome of an investigation] to which some significance is then attached", and is not merely a reference to the logistical exercise of preparing or drafting a report.
That the expression "making a report" describes the exercise embodied in deciding upon the final form of a report containing the Commission's findings, opinions and recommendations, and communicating it to the Parliament, finds some support in the decision in Balog v Independent Commission Against Corruption (1990) 169 CLR 625 at 633-634; [1990] HCA 28. Section 18(2) of the Act permits the Commission to "defer making a report". The Court identified the purpose for which that discretion was conferred as being to protect criminal proceedings before a court from interference arising from the making public of a report containing the findings and observations of the Commission about the same or a related subject matter. The "dangers" which the Court identified the legislature sought to avoid would ordinarily only manifest upon the communication of the final form of a report, not in the preparation of any draft.

[21]

The arguments as ultimately made

As the terms of ground 1 show, the applicant initially contended that the Chief Commissioner's "adoption" of Ms McColl's findings and opinions, including as to witness credibility assessments, was not a valid means of curing her lack of authority to "make" such findings and opinions on behalf of the Commission. In effect, it was said that the Report merely recorded findings and opinions of Ms McColl, which had not been actually formed or made by someone authorised to do so on behalf of the Commission (s 6(1)). However, as finally put, the applicant's argument focused on the Commission's adoption of Ms McColl's assessments in the making of its findings as to credibility, rather than the proposition that Ms McColl had made those findings, and the fact that those assessments were made or communicated to the Chief Commissioner at a time when Ms McColl was a consultant. It was not argued that by agreeing to and participating in such a drafting process, both before and during Ms McColl's appointment as a consultant, the Commission had "in effect" delegated to her (contrary to s 107(4)) part of the function of "making" a report, namely that of making findings involving witness credibility assessments.
As put by counsel for the applicant, the following distinction was to be drawn between the character of Ms McColl's participation before and during her appointment as a consultant: … of course it's proper for drafts to be considered prepared by others, of course. It really does go without saying but there is the world of difference between drafting something where you are, however competent, an amanuensis and your opinion being taken by the decision maker as his her or its opinion, that is fine if you are a constitutive element and there is whatever collegial process follows with the Chief Commissioner, as we know, having the whip hand in terms of decision making by the Commission. It's equally fine if there is a statutory function of assisting, but when there is neither, and that is this case, in our submission, what you have is somebody whose opinion is being adopted in a critical fashion, and I don't want to go back over why it's critical…
There is no factual controversy as to the process that generated the Report. In terms, it contains findings, opinions and recommendations of the Commission, as well as statements as to the Commission's reasons for those findings, opinions and recommendations (as the extracts at [63]-[64] above show). That process involved the provision of draft reports to the Commission's review panel, whose members included the Chief Commissioner. That panel considered the drafts, provided written and oral comments to Ms McColl, resulting in suggestions and recommendations which were then addressed before the final report was made by the Chief Commissioner in the name of the Commission.

[22]

Ground of review 2

Ground 2 is: Further or in the alternative to ground 1, the Commission's finding that Ms Berejiklian had a private interest in, and was influenced by a desire of, maintaining or advancing her close personal relationship with Mr Maguire was not supported by any probative evidence (R [11.619])…
The above extract of ground of review 2 does not include the eight subparagraphs to that ground, which identify the five "ultimate" and three other findings to which the challenged findings are said to be "material". The "ultimate" findings are those summarised at [35]-[38] above and three other findings are those of "substantial breach" of the Ministerial Code, being intermediate findings supporting the first, third and fifth of those "ultimate" findings.
There is an issue as to whether the applicant's written submissions mischaracterise the findings made in the Report for the purpose of establishing the materiality of the findings for which there is said to be no probative evidence. It is convenient first to address that question and then, having done so, to address whether those findings were supported by any probative evidence.

[23]

Submissions

The applicant's written submissions identify two findings as made without any probative evidence. The first challenged finding is that the applicant had a private interest in maintaining or advancing her close personal relationship with Mr Maguire, which she "deliberately" preferred over her public duty. That finding is said to be "critical" to the two findings of "serious corrupt conduct" arising from breaches of public trust (s 8(1)(c)), which are the ultimate findings at [1.5.1] and [1.5.3], described at [36] above. The conduct in each case was exercising official functions in relation to decisions made concerning the ACTA and RCM Stages 1 and 2 funding whilst in a position of conflict of interest and public duty.
The second challenged finding is that the applicant engaged in partial conduct "influenced by the existence of her close personal relationship with Mr Maguire and by a desire on her part to maintain or advance that relationship". That finding is said to be "critical" to the two findings of "serious corrupt conduct" arising from breaches of s 8(1)(b) (partial conduct) and the finding of "serious corrupt conduct" arising from the applicant's breach of s 11 (duty to notify possible corrupt conduct), which are the ultimate findings at [1.5.2], [1.5.4] and [1.5.5] respectively, described at [37]-[38] above. The conduct to which the partial conduct findings were directed was the partial exercise of the applicant's official functions in relation to the ACTA and RCM Stage 2 funding influenced by her close personal relationship with Mr Maguire and her desire to maintain or advance that relationship. The conduct to which the s 11 finding relates was the applicant's failure and refusal to discharge her obligations by reporting her actual suspicions of Mr Maguire's activities in relation to the three matters described at [38] above.
Addressing the asserted "mischaracterisation" of the Report's findings, the Commission says that the findings of "serious corrupt conduct" arising from breaches of public trust were that the applicant exercised her functions whilst in a position of conflict of interest and duty. It submits that those findings of breach did not depend on any finding that the applicant had "deliberately preferred her private interest… over her public duty". Nevertheless, the Commission did make such a finding at [12.196], although not material to the s 8(1)(c) finding in the paragraph that follows. In relation to the breach of s 11, its findings were said to be that the applicant did not report her actual suspicions as to Mr Maguire's activities, and that she did so in order to protect either Mr Maguire's interests or her own interests, but not in furtherance of her interest in maintaining or advancing their relationship.

[24]

Disposition of the threshold issue

The Commission was right to accept that a finding that Ms Berejiklian had a private interest in, and was influenced by a desire to, maintain or advance her close personal relationship with Mr Maguire was necessary for its conclusions as to partial conduct. The relevant findings are at [11.594] with respect to ACTA, and [12.314] with respect to RCM Stage 2, and are in terms that the applicant exercised her official functions "influenced by the existence of her close personal relationship with Mr Maguire and by a desire on her part to advance or maintain that relationship".
In relation to its conclusion as to these breaches of s 8(1)(b), the Commission also found concerning the ACTA funding that the applicant had "consciously preferred" Mr Maguire for an "unacceptable reason" ([11.587]), and concerning the RCM Stage 2 funding that the applicant had "consciously preferred Mr Maguire" ([12.313]). Each of those findings is in substance the same as the first of the findings referred to in the applicant's written submissions (see [91] above).
However, as concerns the breach of public trust and s 11 findings, notwithstanding that the applicant has pointed to further findings in support of her submission that the asserted error raised by this ground of review is also material to the "ultimate" findings, she has not sought to amend the ground as formulated. In these circumstances, it is not strictly necessary to consider the additional finding referred to in [92] above. However, in what follows the Court has considered whether that further finding was open on the evidence.

[25]

Relevant principles for the "no evidence" ground

Properly understood, the "no evidence" ground is that there is no evidentiary material which could rationally affect the decision-maker's assessment of the probability of the relevant fact or facts in issue (see D'Amore v Independent Commission Against Corruption [2013] NSWCA 187 at [235] (Basten JA, Bathurst CJ agreeing), which in turn cites the earlier decision in Amaba Pty Ltd v Booth [2010] NSWCA 344 at [22]-[24] (Basten JA, Beazley and Giles JJA agreeing)). A finding of fact when there is "no evidence" in support of that finding is an error of law (Kostas at [91]).
As to whether there is evidence to "support" a particular finding, Basten JA makes the following observations in Booth at [23]-[24] in a passage cited with approval in Ballina Shire Council v Knapp [2019] NSWCA 146 at [38] and Workers Compensation Nominal Insurer v Hill [2020] NSWCA 54 at [19]: [23] Implicit in the statement that there is no evidence to 'support' a particular finding, is the characterisation of a relationship between the evidence and the finding. It is the same relationship inherent in the concept of 'relevance', on which the laws of evidence depend. That relationship depends on a process of reasoning which must be logical or rational. Thus, evidence is relevant which, if accepted, 'could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding': Evidence Act 1995 (NSW), s 55(1). As explained by Gleeson CJ, Heydon and Crennan JJ in Washer v Western Australia [2007] HCA 48; 234 CLR 492 at [5]: 'The word 'rationally' is significant in this context. In order to establish relevance, it is necessary to point to a process of reasoning by which the information in question could affect the jury's assessment of the probability of the existence of a fact in issue at the trial.' [24] Whether an inference is reasonably open, in the sense of being logically available, involves an evaluative judgment, which is to be assessed by the court exercising appellate or supervisory jurisdiction.
In respect of inferences drawn from facts as found, the position is as described by Mason CJ in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356; [1990] HCA 33: … at common law, according to the Australian authorities, want of logic is not synonymous with error of law. So long as there is some basis for an inference - in other words, the particular inference is reasonably open - even if that inference appears to have been drawn as a result of illogical reasoning, there is no place for judicial review because no error of law has taken place. (Emphasis in original.)

[26]

The respective arguments

It is not contested that the applicant and Mr Maguire were in a "close personal relationship". However, it is said that evidence beyond the mere existence of the relationship was required to support the "grave" finding that the applicant's exercise of public functions was influenced by that relationship, or a desire to maintain or advance it. The applicant asserts that there is no such evidence.
It is submitted that only the presence of an "existential threat" to the relationship could "logically" justify a finding that the applicant was influenced by a desire to "maintain" that relationship. Such a broad statement as to likely human behaviour cannot be accepted as true. As a matter of common sense and experience, people in personal relationships act towards each other for all manner of reasons, including because what they do might be well-received by, or please, the other party, and in that respect be conducive to maintaining the relationship. It is certainly not the case that people act in that way only where it is believed to be necessary to do so for the survival of a relationship.
As to "advancing" a relationship, the applicant contends that there was no evidence to support a finding that the applicant believed that exercising her public functions was "capable of deepening or strengthening" the relationship. In response the Commission relies on evidence as to the dynamics of the relationship, which suggested that the applicant was conscious of a need to accommodate and assuage Mr Maguire's insecurities by supporting him and projects for which he was a strident advocate (see [10.29]).
The applicant specifically refers to the Commission's recording (at [11.556]) of Counsel Assisting's submissions as to matters which "tended in favour of" a conclusion that the applicant had exercised her official functions preferentially in favour of the ACTA proposal influenced by a desire to maintain or advance the relationship: … [Counsel Assisting] identified the following matters, which they contended, when considered cumulatively, tended in favour of such a conclusion: 11.556.1. the nature and strength of Ms Berejiklian's close personal relationship with Mr Maguire including Mr Maguire's status as a member of Ms Berejiklian's 'love circle' 11.556.2. Mr Maguire's role as the 'principal proponent' within government for the ACTA proposal to the knowledge of Ms Berejiklian 11.556.3. Mr Maguire's level of access to Ms Berejiklian and his preparedness to directly lobby her in order to seek to advance projects of which he was supportive, including the ACTA proposal 11.556.4. Mr Maguire's manner of lobbying - a self-described 'serial pest' who was variously described by others as, amongst other things, persistent and aggressive 11.556.5. the absence of any measures taken by Ms Berejiklian to insulate herself from Mr Maguire's influence over her decision-making insofar as it concerned projects advanced by him 11.556.6. Ms Berejiklian's apparent preparedness to take, or not take, steps in her public life with a view to placating Mr Maguire and maintaining their personal relationship 11.556.7. Ms Berejiklian's acknowledgment that the fact that the project was being advanced by Mr Maguire 'could have been part of the consideration' and 'would have been a factor' 11.556.8. the absence of evidence supporting a conclusion that Ms Berejiklian supported the ACTA proposal because she concluded that it was in the public interest to do so.

[27]

Disposition of ground 2

It is convenient to address the questions of supporting evidence, and availability of inferences, by reference to the following matters which substantially cover those in Counsel Assisting's submission as recorded at [11.556].

[28]

The nature and dynamics of the relationship

The Commission considers the nature of the relationship between [10.8] and [10.38]. Its findings include that it "was one of considerable intensity accompanied by mutual and deep feelings of love" ([10.9]), and that the messages between the two were "consistent with physical and emotional intimacy and a romantic relationship having developed" between them ([10.13]).
On 14 February 2018, there was a recorded telephone exchange between the applicant and Mr Maguire, which included the following ([10.20]): BEREJIKLIAN: No but Hokis if I did something bad, I need to I need to perhaps. MAGUIRE: Well you were just over the top over the top right and you just don't need to be so mean that's all. BEREJIKLIAN: Okay I'm sorry. MAGUIRE: You just appeared mean. BEREJIKLIAN: Do you know why because I forget that I need to look like I'm you impress me in front of like I forget that [sic]. MAGUIRE: No you should I impress, I impress a lot of people why aren't you impressed in front of people you should be. BEREJIKLIAN: That's what I mean I forget that I'm meant to be with you know, technically the Premier so, you know. I get that. MAGUIRE: Hmm anyway. BEREJIKLIAN: Because you know what I tell you why because normally you're the boss and it's hard when we have to switch it around that's the truth. MAGUIRE: Yeh but I am the boss, even when you're the Premier. BEREJIKLIAN: I know. So therefore it's hard when I had to switch it around. MAGUIRE: Glad even when you are the Premier I am the boss alright. BEREJIKLIAN: Yes I know.
This exchange was the subject of the question to the applicant and her answer recorded at [10.21]: In a private examination during Operation Keppel's public inquiry into the Maguire allegation ('the First Public Inquiry'), Ms Berejiklian was asked whether this exchange was 'a fair understanding of your relationship at that point in time, that in the sense that, at least privately, it was Mr Maguire [who] was the leading party or the boss?' She replied: Look, as you can appreciate, when you're the Premier of the state, it's very difficult in private relationships to make people feel that - he wanted, he, he wanted to feel equal in the relationship because of my position … To make him feel less insecure in a private capacity I'm talking now, not in a public capacity. In a private capacity, it's very personal … when you have a position of power, it's very difficult in a personal relationship to address that position of power, and that's what I was referring to. It's very personal and private. It's got nothing to do with work. It's actually making him feel that because I was the boss during the day, that I wouldn't necessarily be exercising that relationship in the private relationship. (Italics in original.)

[29]

Mr Maguire's "lobbying" to the applicant

There was evidence that Mr Maguire pressed the applicant to exercise her public functions in particular ways to support his causes, and that the applicant responded accordingly. In doing so Mr Maguire had direct, immediate and informal means of communicating with the applicant and did so without any suggestion that there was some "boundary" between their personal or private lives and their interactions concerning the exercise by the applicant of her public functions.
For example, the applicant intervened with Treasury to support funding for the Wagga Wagga Base Hospital on 16 May 2018 after Mr Maguire had been told that "[his] 170 million" dollar funding request was "not a line item". As he described it to the applicant (then Premier) in a recorded telephone call, the relevant Minister had said to him "I haven't seen it. I don't know, it's up to Treasury", to which Mr Maguire had replied "you better fucking make sure Wagga's got money otherwise there's gonna be a riot on your hands" ([11.528]). The applicant responded to Mr Maguire that she would "deal with it" and "fix it" ([11.529]).
The exchanges which then occurred are at [11.530]-[11.532]. They also include reference to funding for the Tumut Hospital: 11.530. Less than two hours later [than the exchange referred to above], at 6:30 pm, Ms Berejiklian called Mr Maguire and told him that she had "got [him] the Wagga Hospital money": BEREJIKLIAN: We'll I've already got you the - I've already got you the Wagga Hospital - MAGUIRE: But they - BEREJIKLIAN: - money. MAGUIRE: - should have done it. BEREJIKLIAN: I know I just talked to Dom [treasurer Dominic Perrottet] - MAGUIRE: Why did they - why do the - BEREJIKLIAN: I just spoke to Dom and I said put the 140 in the budget. He goes no worries. He just does what I ask I ask him to - MAGUIRE: But - but - BEREJIKLIAN: - it's all fine. MAGUIRE: - but it's meant to be 170. BEREJIKLIAN: Whatever it is 170 I said (UNINTELLIGIBLE) I think it's around 140, I said just put it in. He's putting it in whatever it is, okay. 11.531. Mr Maguire continued to complain to Ms Berejiklian, who responded, "Okay can you please not get yourself worked up again because all you do is shout at me sometimes Hokis." Mr Maguire continued to complain and Ms Berejiklian responded (amongst overtalking), "you don't need to give me that rubbish we're giving … Wagga more money than … than ever before". 11.532. Undaunted, Mr Maguire complained about funding for Tumut Hospital, leading to the following conversation: MAGUIRE: Anyway, you need to find at least five hundred thousand or a million dollars to keep Tumut planning going. BEREJIKLIAN: Ehm. MAGUIRE: Just to have a line item. And - and, you know, five hundred thousand - BEREJIKLIAN: Can you text Brad - can you stress and text Brad cause I've-I've got you now got you the one seventy million in five minutes. You can at least get a few hundred thousand from Brad just keep texting him. If you keep bothering him he'll fix it okay. MAGUIRE: Yeah - yeah I'll - BEREJIKLIAN: You can have me fight - MAGUIRE: - go see Lee and she'll fix it. BEREJIKLIAN: You can't have me fixing all the problems all the time. MAGUIRE: I tell you what if you went to the budget without Wagga on it you - BEREJIKLIAN: Yeah I just fixed it okay. MAGUIRE: Hokis - BEREJIKLIAN: Okay it's done. MAGUIRE: I - I - BEREJIKLIAN: Alright. MAGUIRE: - can't believe that that was the top of my list and they ignored me. BEREJIKLIAN: Well luckily you've got - … (Italics and emphasis in original.)

[30]

Mr Maguire as principal proponent of the ACTA and RCM proposals

In relation to the ACTA proposal generally, Mr Maguire agreed that from time to time he spoke to the applicant about it, and that he would have "encouraged her to take a close interest in it" ([11.543]). There was evidence that he was regarded by senior members of ACTA as its "champion within government" ([11.3], [11.372]). He was also Patron of the NSW Clay Target Association, and agreed that he had a long-term association with ACTA and was the "principal proponent" of its projects to government between at least 2016 and 2018 ([11.371]-[11.373]).
As to RCM, the applicant's evidence was that Mr Maguire had raised the funding for its moving premises, and its later recital hall proposal, over a period of years and on a number of occasions, and that she believed that he had a "particular passion" for the funding of the RCM proposal ([12.79], [12.182]). Dr Wallace described Mr Maguire as RCM's "go-to person within government" ([12.166]). In turn, Mr Maguire believed that he was the "principal proponent of that project within government" ([12.167]).
It was open to the Commission to find on this evidence that the applicant understood or believed that by supporting these two proposals she would please Mr Maguire, and give him a sense of satisfaction and achievement, and thereby strengthen or secure their underlying relationship.

[31]

The degree of involvement of the applicant in the ACTA and RCM funding proposals; the adoption of irregular, atypical or unusual processes in the treatment of those proposals; and the involvement of the applicant in influencing their outcome

In relation to the ACTA proposal: The Commission found that the circumstances in which this funding application came onto the ERC agenda were "within [the applicant's] control" and "bespeak irregularity" ([11.572]). As described below, those circumstances were supported by evidence: 11.572.1. Ms Berejiklian agreed that to have a matter put on an ERC meeting agenda urgently would require the intervention or at least the agreement of the treasurer. 11.572.2. Ms Berejiklian accepted that Mr Maguire had had discussions with Mr Bentley [an adviser within the applicant's office] and her with a view to getting her to give a request or direction that the ACTA matter be placed on the ERC agenda. 11.572.3. Mr Ayres [Minister for Sport] did not recall any direct discussion and agreement with Ms Berejiklian to have the ACTA matter on the agenda. 11.572.4. To the extent that a 5 December 2016 email said, 'I understand that Minister Ayres has agreed with the Treasurer that a submission seeking $5.5 million for a Clay Target Association in Wagga Wagga be considered by ERC on 14 December', Mr Ayres interpreted that to mean 'our officers interacting with each other, not me and the Treasurer'. 11.572.5. Lodging the final ACTA ERC submission one or two days before the ERC meeting was well outside the ordinary timeframes for dealing with an ERC submission. 11.572.6. Placing the ACTA proposal on the ERC agenda at such short notice was not standard procedure; it meant it by-passed 'a stage where it would be circulated amongst departments'. 11.572.7. On 6 December 2016, at a time when it does not appear the ERC submission could have been seen by Ms Berejiklian, she both placed the matter on the ERC agenda and indicated an inclination to support it. 11.572.8. The premier's office questioned why the ACTA submission could not be delayed until the new year, to allow time for market testing of costings and project planning to be completed. 11.572.9. Treasury recommended that the ACTA ERC submission not be supported as 'a net benefit to the State [had] not been adequately demonstrated'. 11.572.10. Mr Blunden: 11.572.10.1. inferred Ms Berejiklian wanted the ACTA matter to proceed in a substantive sense because 'her office had put it on the agenda'. He drew the same inference about Mr Ayres 11.572.10.2. queried whether this was the most appropriate expenditure of $5.5 million of taxpayers' money 11.572.10.3. questioned whether the ACTA proposal was a government priority as it 'didn't stand out as anything particularly special that was a requirement, and particularly with the lack of a, a rigorous BCR'. 11.572.11. When the matter was taken off the ERC agenda, Mr Maguire 'fired up', and Ms Berejiklian reinstated it.

[32]

Disclosures of conflicts

Finally, with respect to a finding that the applicant had "consciously" or "deliberately" preferred her private interests, it is not controversial that the applicant did not disclose her relationship with Mr Maguire, notwithstanding that at each of the ERC meetings there was a request for disclosure of any conflicts of interest. There was also evidence as to the applicant having made disclosures of potential conflicts of interest in circumstances where the relationship disclosed was that of an acquaintance or family member, in each case much less intense, immediate and relevant than that of her relationship with Mr Maguire. Those disclosures included ([11.427]): 11.427.1. In 2013, Ms Berejiklian declared an interest to Cabinet and abstained from discussions regarding the appointment of a particular individual to a government board 'due to attendance with [that individual] at functions'. 11.427.2. In 2017, Ms Berejiklian made a disclosure under the NSW Ministerial Code of Conduct to the effect that two of her cousins were then employed in the NSW public service. 11.427.3. In 2018, Ms Berejiklian made a declaration of interest to Cabinet in relation to a particular Liberal Party supporter in relation to a potential appointment of that person to a government advisory board. 11.427.4. In 2019, Ms Berejiklian declared to Cabinet that a particular person proposed to be appointed to a government board was 'known to [her]'.
The evidence was that the applicant was well aware of her obligation to disclose conflicts of interest and duty ([12.194]). In addition, the applicant gave a number of reasons for not having done so, thereby suggesting that she had considered those matters in deciding not to do so ([11.439]). As the Commission noted at [11.440], many of the factual premises underlying those "reasons" were contradicted by other evidence. Thus, it was open to the Commission to find that the applicant had turned her mind to the question of disclosure and "deliberately" and "consciously" determined not to do so, thereby preferring her private interest or benefit to her public obligation to disclosure the conflict.

[33]

Conclusion to ground 2

There was evidentiary material capable of supporting each of the challenged findings (see [104] above), and the underlying findings and inferences on which they were based.
Accordingly, the "no evidence" ground of review is not made out.

[34]

Ground of review 3

This ground is: Further or in the alternative to ground 1, the Commission made a material error of law in finding that Ms Berejiklian's non-pecuniary personal relationship with Mr Maguire was capable of amounting to a relevant private interest capable of giving rise to a conflict of interest on Ms Berejiklian's part (R [10.175])…
This ground is directed only to the first and third of the Commission's findings of "serious corrupt conduct", which relate to the applicant's participation as a Minister in decisions made concerning funding promised and or awarded to ACTA and RCM whilst in a position where her private interest "in maintaining or advancing her close personal relationship" with Mr Maguire conflicted with her public duty. The applicant's participation in that decision-making without disclosing that conflict was found to constitute or involve a "breach of public trust" within s 8(1)(c) of the Act.
This ground contends that the applicant's "non-pecuniary personal relationship" with Mr Maguire was not capable in law of constituting a "private interest" which was in turn capable of giving rise to a conflict of interest and duty in the exercise of the applicant's official functions. In relation to the "serious corrupt conduct" findings arising in relation to breaches of public trust, findings that there was such a conflict were relevant to establishing breaches of public trust for the purposes of s 8(1)(c) of the Act, as well as breaches of s 7(2) of the Ministerial Code for the purposes of s 9(1)(d) of the Act.
The applicant's contention provides for two steps in an inquiry as to whether there is a conflict of private interest and public duty in breach of s 8(1)(c) of the Act, or a "conflict of interest" as defined in s 7(3) of the Ministerial Code. The first is whether the supposed "private interest" is capable in law of giving rise to such a conflict. The second, adopting the language in s 7(3), is whether that private interest "could objectively have the potential to influence the performance of [the Minister's] public duty". It is accepted that the second step requires an evaluative judgment based on the relevant factual circumstances and context.
In relation to the first step in this inquiry, the applicant submits that "private interest" is not a term of "unlimited denotation" and that "where, as here, there is no pecuniary interest whatsoever, and no more than a personal connection with a person involved in a matter in his official capacity, there is no private interest". However, it is not said in support of this proposition that such a "private interest" could not in any relevant circumstances have the potential to influence the performance of a Minister's public duty. Rather, as the Commission submits, the applicant's argument asserts that as a matter of law "a conflict can only arise where there is an 'interest' involving some pecuniary aspect and which is more than a personal connection" (emphasis added).

[35]

Ground of review 4

This ground is: Further or in the alternative to ground 1, the Commission made a material error of law in finding that Ms Berejiklian had a legally enforceable positive duty to act only according to what she believed to be in the public interest (R [10.207], [10.210], [11.409]). Properly understood, Ms Berejiklian's public duty comprised a negative obligation proscribing the use of her position to promote her own pecuniary interests, or those of certain third parties, in circumstances of a conflict, or a real or substantial possibility of a conflict, between those interests and her duty to the public…
The applicant's position before the Commission (see [3.59]) and in this Court is that, properly understood, a breach of public trust in s 8(1)(c) reduces to breach of a negative obligation proscribing self-interested conduct. That negative obligation is said to have been correctly formulated by Beech-Jones J in R v Obeid (No 2) [2015] NSWSC 1380 when considering the duties of a parliamentarian in the context of a prosecution for misconduct in public office. At [75], his Honour said that: … the nature and scope of a parliamentarian's duty reduce to a negative obligation not to use their position to promote their own pecuniary interests… in circumstances in which there is a conflict, or a real or substantial possibility of a conflict, between those interests and their duty to the public.
This statement adopts Mason J's formulation of the proscriptive duty of a fiduciary (Hospital Products Limited v United States Surgical Corporation (1984) 156 CLR 41 at 103; [1984] HCA 64) and applies it by analogy to a member of Parliament. While the statement in R v Obeid (No 2) treats a parliamentarian like a fiduciary in his or her relation to the state, it does not purport to describe the more general "duty to the public" in respect of which any "conflict" might arise. Nor does it adopt the wider "conflict rule" or extend to the promotion or pursuit of non-pecuniary interests whilst in a position of conflict.
Thus, the statement in R v Obeid (No 2) describes the "conflict" as being between a parliamentarian's pecuniary interests and his or her "duty to the public", the latter necessarily being something other than the proscriptive duty.
That proscriptive duty described prohibits the promotion or pursuit of personal interest, as do the formulations of a fiduciary's "liability to account" in Chan v Zacharia (1984) 154 CLR 178 at 198-199 (Deane J); [1984] HCA 36. However, as Deane J observed (at 198), in Boardman v Phipps [1967] 2 AC 46 at 123, Lord Upjohn said with respect to the fiduciary's duty to account and the wider "conflict rule": Rules of equity have to be applied to such a great diversity of circumstances that they can be stated only in the most general terms and applied with particular attention to the exact circumstances of each case. The relevant rule for the decision of this case is the fundamental rule of equity that a person in a fiduciary capacity must not make a profit out of his trust which is part of the wider rule that a trustee must not place himself in a position where his duty and his interest may conflict. (Emphasis added.)

[36]

Ground of review 5

This ground is: Further or in the alternative to ground 1, the Commission erred in law in finding that Ms Berejiklian engaged in conduct constituting a breach of public trust by failing to "act only according to what she believed to be in the public interest", with such conduct constituted by her non-disclosure of her non-pecuniary personal relationship with Mr Maguire (R [11.446]-[11.451], [12.181], [12.195]-[12.197], [12.222])… (Emphasis added.)
This ground addresses the findings as to the conduct found to be in breach of s 8(1)(c) and characterised as "serious corrupt conduct". It is said that the material conduct in which the Commission found the applicant had engaged, and in breach of s 8(1)(c), was the applicant's non-disclosure of her personal relationship with Mr Maguire.
The issue between the applicant and Commission is whether, as the applicant contends, the Commission found that the breaches of s 8(1)(c) were the applicant's non-disclosure of her personal relationship, which constituted a failure to "act only according to what she believed to be in the public interest".
In the applicant's written submissions, it is said not that the Commission made such a finding, but rather that the Commission "treated" the applicant's non-disclosure as itself amounting to such a breach.
Reference to the Commission's findings shows that the breach found in the case of the ACTA and RCM Stages 1 and 2 funding was "exercising her official functions in relation to funding promised and/or awarded… without disclosing her close personal relationship with Mr Maguire when she was in a position of conflict of interest between her public duty and her private interest" (as to ACTA, see [11.460]; as to RCM Stages 1 and 2, see [12.223]). Having made those findings, the Commission then turned to s 9(1)(d) and recorded its findings in relation to the breach of s 8(1)(c) as being that "Ms Berejiklian was in a position of conflict when she exercised her official functions" in relation to each of ACTA and RCM (as to the former, see [11.464]; as to the latter, see [12.225]).
In considering the question of substantial breach of the Ministerial Code, the lack of disclosure, which the Commission found was "wilful" (as to ACTA, see [11.464]; as to RCM Stages 1 and 2, see [12.196] and [12.221] respectively), informed the Commission's assessment of whether the applicant's conduct involved breaches of s 7(2) of the Ministerial Code and cll 10(1), 11 and 12 of the Schedule to the Code, as well as whether those breaches were substantial.

[37]

Ground of review 6

This ground is: Further or in the alternative to ground 1, the Commission exceeded its authority and institutional competence by purporting to make findings as to the merits of the decisions concerning the ACTA and RCM proposals, and using those findings as a basis to assess whether Ms Berejiklian believed her conduct to be in accordance with the public interest (R [11.394]-[11.395], [11.456]-[11.457], [11.609], [12.205], [12.213]-[12.214]). The assessment of the merits of such decisions, and whether they are in fact in the public interest, is the exclusive province of the elected representatives responsible for them…
The applicant submits that the Commission assessed for itself whether the exercises of power in relation to the ACTA and RCM funding proposals were in the public interest. Specifically, it is said that the Commission purported to assess the merits of the proposals, and then used those findings as a means of assessing whether the applicant supported them because she believed they were in the public interest. Particular reference is made to 11 paragraphs in the Report. It is said that this assessment of whether these proposals were in the public interest was "beyond ICAC's institutional competence" and was the "exclusive province of the elected representatives responsible for them". It is also said that the Commission "was neither equipped for nor tasked with reviewing the merits of such decisions", and that the Commission erred in law in seeking to do so.
The Commission maintains that the applicant's argument is based upon a misconstruction of its reasons. It says that it did not decide for itself the merits of any of the ACTA or RCM proposals in making its findings of "serious corrupt conduct". Rather, in assessing whether the applicant had engaged in "partial" conduct in breach of s 8(1)(b), it had regard to contemporaneous assessments and appraisals made by participants engaged in the consideration process which called into question the merits of those proposals. The Commission considered that any such "perceived lack of merit and enthusiasm for the proposals" (emphasis added) was a circumstance to be taken into account and contrasted with the applicant's support for the proposals, thereby suggesting a degree of partiality on her part. Insofar as the Commission made reference to the perceived merits of any of the proposals in confirming its findings arising from breaches of public trust, it submits that these references were not material to those findings.

[38]

Ground of review 7

This ground is: Further or in the alternative to ground 1, the Commission made a material error of law in finding that cl 7, and cll 10-12 of the Schedule of the Ministerial Code imposed disclosure obligations on Ms Berejiklian when she occupied the office of Premier (R [10.124]). Properly understood, the Premier's role in the conflict disclosure regime prescribed by the Ministerial Code is the recipient of disclosures, and the maker of rulings as to when Ministers are permitted to act following disclosure. This finding was material to: a. the ultimate finding that Ms Berejiklian engaged in serious corrupt conduct in connection with decisions concerning the RCM proposal, involving a substantial breach of the Ministerial Code for the purposes of s 9(1)(d) of the ICAC Act (R [1.5.3], [12.255]).
Ms Berejiklian accepted that the Ministerial Code applied to her when she was Treasurer, and accordingly at the time the ACTA funding was dealt with at the ERC meeting on 14 December 2016 ([10.76]). However, she maintained that it did not apply to her when she was Premier, and accordingly at the time when the RCM Stage 1 decisions were made at ERC meetings on 12 and 24 April 2018 ([12.84], [12.90]), and when the RCM Stage 2 recital hall funding reservation and commitment were made on 24 August 2018 ([12.137], [12.153]).
Each of the findings as to "serious corrupt conduct" involving a "breach of public trust" included for the purposes of s 9(1)(d) that there were also breaches of s 7(2) of the Ministerial Code (as well as breaches of cll 10(1), 11 and 12 of the Schedule to the Code).
For convenience, the immediately relevant provisions of the Code are as follows: Preamble 1 It is essential to the maintenance of public confidence in the integrity of Government that Ministers exhibit and be seen to exhibit the highest standards of probity… and be seen to pursue the best interests of the people of New South Wales to the exclusion of any other interest. … 3 Ministers have a responsibility to maintain the public trust that has been placed in them by performing their duties with honesty and integrity… and to advance the common good of the people of New South Wales. 4 Ministers acknowledge that they are also bound by the conventions underpinning responsible Government, including the conventions of Cabinet solidarity and confidentiality. … 11 In particular, Ministers have a responsibility to avoid or otherwise manage appropriately conflicts of interest to ensure the maintenance of both the actuality and appearance of Ministerial integrity. 1 Preliminary (1) This is the NSW Ministerial Code of Conduct. (2) The NSW Ministerial Code of Conduct applies to all current and future Ministers and Governments. … 4 Compliance with the Schedule to the NSW Ministerial Code of Conduct A Minister must not knowingly breach the Schedule to the NSW Ministerial Code of Conduct. Accordingly, a substantial breach of the Schedule is, if done knowingly, a substantial breach of the NSW Ministerial Code of Conduct. … 6 Duty to act honestly and in the public interest A Minister, in the exercise or performance of their official functions, must not act dishonestly, must act only in what they consider to be the public interest, and must not act improperly for their private benefit or for the private benefit of any other person. 7 Conflicts of interest (1) A Minister must not knowingly conceal a conflict of interest from the Premier. (2) A Minister must not, without the written approval of the Premier, make or participate in the making of any decision or take any other action in relation to a matter in which the Minister is aware they have a conflict of interest. (3) A conflict of interest arises in relation to a Minister if there is a conflict between the public duty and the private interest of the Minister, in which the Minister's private interest could objectively have the potential to influence the performance of their public duty. Without limiting the above, a Minister is taken to have a conflict of interest in respect of a particular matter on which a decision may be made or other action taken if: (a) any of the possible decisions or actions (including a decision to take no action) could reasonably be expected to confer a private benefit on the Minister or a family member of the Minister, and (b) the nature and extent of the interest is such that it could objectively have the potential to influence a Minister in relation to the decision or action. … 11 Definitions In this Code (including the Schedule), and unless the context otherwise requires: … family member, in relation to a Minister, means: … (e) any other person with whom the Minister is in an intimate personal relationship. … Minister includes: (a) any Member of the Executive Council of New South Wales, and … private benefit means any financial or other advantage to a person (other than the State of New South Wales or a department or other government agency representing the State), other than a benefit that - (a) arises merely because the person is a member of the public or a member of a broad demographic group of the public and is held in common with, and is no different in nature and degree to, the interests of other such members, or (b) comprises merely the hope or expectation that the manner in which a particular matter is dealt with will enhance a person's or party's popular standing. ruling means a ruling by the Premier, in accordance with clause 27 of the Schedule to this Code, under clause 1(1) or (4), 2(3), 3(5) or 12(2) of the Schedule. … Schedule to the NSW Ministerial Code of Conduct … Part 3 Conflicts of interest 10 Duty to disclose (1) A Minister must promptly give notice to the Premier of any conflict of interest that arises in relation to any matter. … 11 Form of disclosure (1) A notice under clause 10 must - (a) be in writing, signed by the Minister, and (b) specify the nature and extent of the relevant interest, the matter to which it relates, and the reason why a conflict of interest arises, and (c) be placed on the Ministerial Register of Interests. (2) If during a meeting of the Executive Council, the Cabinet or a Cabinet Committee a matter arises in which a Minister has a conflict of interest the Minister must (whether or not the Minister has previously given notice to the Premier): (a) as soon as practicable after the commencement of the meeting, disclose to those present the conflict of interest and the matter to which it relates, and (b) ensure that the making of the disclosure is recorded in the official record of the proceedings, and (c) abstain from decision-making if required by, and in accordance with, clause 12, and (d) if notice of the conflict of interest has not previously been given to the Premier under subclause (1) - give such notice as soon as practicable after the meeting in accordance with that subclause. 12 Minister to abstain from decision-making (1) A Minister who has a conflict of interest in a matter must abstain from making, or participating in, any decision or from taking, or participating in, any action in relation to the matter. (2) However, the Premier may, if satisfied that no conflict of interest arises or that any potential conflict of interest can be appropriately managed, make a ruling authorising the Minister to continue to act. (3) A Minister who has a conflict of interest in a matter arising during a meeting of the Executive Council, the Cabinet or a Cabinet Committee must: (a) abstain from participating in any discussion of the matter and from any decision-making in respect of it, and (b) unless the Premier (or the chair of the meeting in the absence of the Premier) otherwise approves - not be present during any discussion or decision-making on it. 13 Discretion to disclosure and abstain A Minister may, if they have some other substantial personal connection with a matter or for any other reason, disclose an interest and abstain from decision-making in relation to a matter in accordance with this Part even if the interest might not comprise a conflict of interest. … 27 Rulings (1) A Minister must, when applying for a ruling from the Premier, include with the application an accurate statement of all material information that is relevant to the decision whether to give the ruling. A ruling that is obtained on the basis of inaccurate or incomplete information is not effective and may not be relied upon by the Minister for the purposes of the NSW Ministerial Code of Conduct. … (5) A ruling in respect of the Premier may be given if approved by the Cabinet.

[39]

Ground of review 8

This ground is: Further or in the alternative to ground 1, the Commission, having found that a finding of partial conduct under s 8(1)(b) of the ICAC Act must relate to a duty to act impartially (R [11.570]), made a material error of law in finding that Ms Berejiklian's conduct in connection with funding promised and awarded to ACTA and RCM Stage 2 was constrained by a legal duty to act impartially (R [10.363])…
It is necessary first to place this ground in context. It is directed to funding promised and or awarded to ACTA and RCM Stage 2. The ground is that there was no legal duty upon the applicant to act impartially when exercising her official functions in relation to those funding proposals.
The Commission accepted at [11.570] that a "finding of partial conduct must relate to a duty to act impartially". That statement harks back to the Commission's discussion at [10.351]-[10.363], which was in turn directed to Gleeson CJ's observation in Greiner v Independent Commission Against Corruption (1992) 28 NSWLR 125 at 144 that "the references to partial and impartial conduct in s 8 [of the Act] must be read as relating to conduct where there is a duty to behave impartially".
At [10.363] the Commission said: … The concept of a duty to act impartially insofar as it relates to a member of Parliament sits within the overriding obligation of such a person to maintain the public trust and to act in the public interest. That is an obligation which, subject to statute as Mahoney JA explained in Greiner v ICAC, imposes a duty to act impartially, that is, always to exercise the power for the purpose for which the public power was granted.
The Commission considered and proceeded on the basis that there was "no doubt that Ministers must act impartially when allocating public funds" (see [11.570] in relation to ACTA and [12.303] in relation to RCM Stage 2). In each case the Commission concluded that the applicant consciously preferred the relevant proposal for a reason which was unacceptable, namely "her close personal relationship with Mr Maguire".
The applicant maintains by this ground that as Treasurer and member of the ERC exercising the power to grant funding in relation to ACTA, and as Premier exercising the power to reserve funds in respect of RCM Stage 2, that she had no duty to act impartially. It is said that in determining whether the exercise of a Minister's functions is subject to a duty to be impartial it is necessary to identify the specific conduct to which the duty attaches.

[40]

Ground of review 9

The terms of this ground are as follows: Further or in the alternative to ground 1, the Commission made a material error of law in finding partial exercises of Ms Berejiklian's official functions within the meaning of s 8(1)(b) of the ICAC Act, in the absence of a finding that the conduct would not have been engaged in but for an unacceptable reason (R [10.349]-[10.350])…
Section 8(1)(b) provides that "corrupt conduct" includes "any conduct of a public official that constitutes or involves the dishonest or partial exercise of any of his or her official functions". The applicant submitted before the Commission that conduct is only partial, and thus corrupt, within the meaning of s 8(1)(b) where that conduct would not have been engaged in "but for" the partiality ([10.340]-[10.341]).
Limiting the application of s 8(1)(b) to conduct which would not have been engaged in but for the partiality would exclude from the scope of that provision some exercises of a public power or function that were partly but not solely influenced by the prohibited private interest. That would be so because the blunt "but for" test would exclude from the scope of s 8(1)(b) any exercise of a power or function that would have occurred even if the prohibited private interest had not influenced the public official.
At this point, the Commission's findings as to partial conduct in breach of s 8(1)(b) should be recalled. As to the ACTA funding, they are at [11.572] and [11.593]-[11.594], and in the following terms: 11.572. The Commission concludes that Ms Berejiklian did consciously prefer the ACTA proposal for a reason which was unacceptable, namely, her close personal relationship with Mr Maguire. It rejects her evidence to the contrary. The circumstances in which it came onto the ERC agenda bespeak irregularity, all of which was within her control… … 11.593. The Commission also finds that Ms Berejiklian's exercise of her official functions in relation to the ACTA proposal was undertaken with a subjective consciousness that she was doing so for an unacceptable reason. This can be imputed to her from the context in which she acted, what she did in the exercise of her official functions and the fact that at least one of the reasons she did so was to prefer Mr Maguire, influenced by the existence of their close personal relationship or at least by a desire on her part to maintain or advance that relationship. 11.594. In all these circumstances, the Commission finds that, in 2016 and 2017, Ms Berejiklian engaged in conduct constituting or involving the partial exercise of her official functions within the meaning of s 8(1)(b) of the ICAC Act in connection with funding promised and awarded to ACTA by exercising her official functions influenced by the existence of her close personal relationship with Mr Maguire and by a desire on her part to maintain or advance that relationship.

[41]

Ground of review 10

This ground is as follows: Further or in the alternative to ground 1, the Commission made a material error of law in finding that Ms Berejiklian's conduct in connection with funding promised and awarded to ACTA and RCM Stage 2 involved the partial exercising of her official functions, without engaging in any comparative exercise addressing how Ms Berejiklian had or would have treated relevantly identical funding requests (R [10.301]-[10.334])…
As with ground 8, this ground is advanced as an error of law vitiating the Commission's partial conduct findings in relation to the funding promised and or awarded to ACTA ([11.594]) and in relation to the funding reserved and or awarded to RCM Stage 2 ([12.314]). The argument made is that for the Commission to make a valid finding of partial conduct it was legally necessary that it undertake a comparison between the treatment said to involve or constitute partial treatment and the treatment of other persons or things "in relevantly identical circumstances". It is said that there was no such consideration by the Commission when making the findings referred to above.
The same argument was made to and rejected by the Commission ([10.301]-[10.339]). Relying on Mahoney JA's reasons in Greiner at 161, it was submitted on behalf of the applicant that a finding under s 8(1)(b) required "a comparison between the person granted the so-described 'partial' treatment and treatment of other persons in relevantly identical circumstances" ([10.301]). This language adopts a statement made by Grove J in Woodham v Independent Commission Against Corruption (1993) 30 ALD 390 at 396 (see [10.295]). That statement was directed to the absence of evidence in that case supporting a finding of "partiality" in the sense described by Mahoney JA in Greiner at 161. In doing so, Grove J does not say or suggest in Woodham that such a comparison has to be undertaken if there is to be a legally valid finding of a "partial" exercise of any official function within s 8(1)(b).
The adoption of a such a prescriptive rule is not supported by Mahoney JA's reasons or the likelihood that in many cases there will not be a relevantly identical comparator to the preferred or advantaged person or thing. The official function being exercised in Greiner was the appointment of a person to a senior position in the public service. Having described "partiality" by reference to the five elements which together were said to be "a sufficient indication of what is involved in partiality of the present kind" (emphasis added), Mahoney JA continued (at 161-162): In describing partiality in this way, I am conscious that exceptions, qualifications and explanations may be necessary for the application of the term in particular cases… The form of the advantage conferred may also vary. Thus, the advantage may be seen in the actual decision, that is, the decision to award a position, a benefit or the like: the advantage may lie in the award of it to one rather than another. But the advantage may lie merely in the process leading to the exercise of a power or the grant of a benefit. A person may be preferred by being put in a position of advantage in the process leading to the decision to award an office or, indeed, by the mere fact of being brought into the contest as one of the contending parties… Partiality involves, in my opinion, the advantaging of a person for an unacceptable reason. It is to this to which most attention was directed in argument, in one form or another. Preference is not, as such, partiality. A person may be preferred for a reason which the law or the rules of the contest allow. Partiality involves essentially that there be a preference for a reason which is in this sense not acceptable.

[42]

Ground of review 11

This ground is as follows: Further or in the alternative to ground 1, the Commission made a material error of law in finding that the duty in s 11(2) of the ICAC Act to report to the Commission any matter that the person suspects on reasonable grounds concerns or may concern corrupt conduct does not need to be confined to a 'matter' involving some specified subject matter, and may involve a generalised suspicion divorced from any particular subject matter (R [13.11]-[13.21])…
Section 11(2) of the Act imposes a duty to report to the Commission "any matter that the person suspects on reasonable grounds concerns or may concern corrupt conduct". The applicant submits that the "matter" to be reported must be a "specified subject matter". It is said that the identification of such a subject matter is necessary to permit a sensible consideration of whether there were "reasonable grounds" for a suspicion of corrupt or possibly corrupt conduct. Section 11(2) is said to require the reporting of something which is "articulated sufficiently to permit it sensibly to be regarded as possibly… corrupt".
This argument was made to the Commission. The Commission said in response, and by reference to the guidelines issued under s 11(3), that in its view the reporting provision may be engaged by a broad range of conduct, including where "a person [does] not even have information which identifies the individual" or where a "reporting minister … merely [has] observed an isolated act, which even without a context as to some particular subject matter to which it related, struck them as so out of order in relation to a public official's conduct that they suspected that it concerned, or may concern, corrupt conduct" ([13.17]).
The Commission also rejected the applicant's contention that Counsel Assisting had "failed adequately to identify the 'matter' said to have been reportable". It continued (at [13.20]): … Counsel Assisting set out in detail in their submissions the circumstances which they argued gave rise to an actual suspicion on Ms Berejiklian's part based on reasonable grounds. They identified the time at which they contended those circumstances supported the proposition that it was probable Ms Berejiklian suspected Mr Maguire was engaging in conduct which may have been corrupt. At the end of each relevant section of their submissions, Counsel Assisting have identified the actual suspicion they contend the Commission should find Ms Berejiklian had based on the facts and circumstances which came to her attention concerning Mr Maguire's conduct and which enlivened her s 11 duty.

[43]

The "Mr Demian" subject matter

Mr Hawatt had been a councillor at Canterbury City Council until its amalgamation with Bankstown Council in May 2016 ([2.3]). Country Garden Australia Pty Ltd (Country Garden) was an Australian-based property developer ultimately owned by Chinese interests and held through a Hong Kong listed company. Mr Maguire and Mr Hawatt "worked" together with Country Garden to identify and introduce to Country Garden potential development sites. Mr Demian was a property developer and the owner of such a site, described by the Commission as a "major project with a potential gross realisation of $2.5 Billion" in Camellia ([13.42]). As such, he was seeking a purchaser or joint venturer for that project.
At [13.42]-[13.43], the Commission found in relation to Mr Demian: The section concerning Charbel Demian in chapter [8] deals with the circumstances in which on 25 November 2016, when Ms Berejiklian was still the treasurer, Mr Maguire forwarded to her an email chain concerning steps he was taking to assist Mr Demian. The subject line of the email chain was '181 James Ruse Drive, Camellia'. It was apparent from the email chain that Mr Demian was a property developer, associated with the development of a 'major project with a potential gross realisation of $2.5 Billion' in Camellia. The email chain revealed Mr Maguire's assistance to Mr Demian included taking the matter up with the RMS. Mr Maguire did not confine his distribution of the email chain to Ms Berejiklian. He also sent it to staff in the office of the then premier, Mr Baird, and to staff of the then minister for planning, Mr Stokes, with a request that it be forwarded to the premier. It is significant that Mr Maguire was taking up a matter concerning a property developer with a government department, that the matter had no apparent relation to his electorate and that he was doing so at Mr Demian's request. And, while Mr Maguire did not confine the email's distribution to Ms Berejiklian, as far as the evidence reveals, she was the only recipient aware of Mr Maguire's previous activity seeking commission in connection with property sales.
There followed further communications in December 2016 and thereafter ([8.43]-[8.57]). Mr Maguire's evidence was that he was hoping to receive a financial benefit for assisting Mr Demian ([8.58]). However, Mr Maguire left it to Mr Hawatt to negotiate the commission that "they" would receive from Mr Demian ([8.58]).

[44]

The "Country Garden and Mr Hawatt" subject matter

In their 5 July 2018 conversation, Mr Maguire said to the applicant that he had been summonsed to the Commission because he had "introduced that idiot Hawatt to Country Garden", and that "Hawatt… pressured perhaps the general manager [of the Council] and others about planning to get planning approved so he could sell it to Country Garden" ([13.147]). The Commission also held that during this conversation Mr Maguire told the applicant that "he had made representations on behalf of property developers and assisted them by referring properties as potential investments to Country Garden", and that he had "also acknowledged that an 'incentive payment' for his introduction and assistance was within his contemplation" ([13.188]).
On 13 July 2018, Mr Maguire gave evidence in the Operation Dasha public inquiry. The Commission summarised that afternoon's evidence at [13.218]: … [Mr Maguire] admitted that he and Mr Hawatt were going to share, or were planning on sharing, commissions obtained from property developers who sold their properties to clients of Mr Maguire to whom they were introduced. This included commissions from introductions on behalf of Mr Demian. The way such commission might be earned was either by Mr Hawatt identifying properties which could be sold to interests that Mr Maguire had contact with, such as Country Garden, with a view to money being made by him and Mr Hawatt, and/or from Mr Maguire introducing a joint venture partner - an introduction which might otherwise not have occurred. The value Mr Maguire could bring to the process, as he explained to Mr Hawatt, was that he had 'more chance of opening the door to our friends than' Mr Hawatt had. Mr Maguire was to make appointments with people, for example, involved in planning issues, but told Mr Hawatt that he was to take 'them to planning and people like that because you can do that'. Mr Maguire's evidence concluded at 4.39 pm…

[45]

The "Badgerys Creek land deal" subject matter

In April 2017, Mr Maguire met Ms Waterhouse and became aware that her family owned land on the western boundary of the Badgerys Creek airport site ([8.81], [8.82]).
In early September 2017, Mr Maguire told the applicant that he was interested in a land deal at Badgerys Creek, which "would give him enough money to pay off his debts in the order of $1.5 million" ([13.83]). There were discussions about that land deal between the applicant and Mr Maguire on 5, 6 and 7 September 2017 ([13.79]-[13.94]). At the time of these discussions, Badgerys Creek and the Western Sydney Airport was a "critical, and ongoing, economic development for the NSW Government" ([13.86]). In one of those discussions, Mr Maguire said that "we've done our deal so hopefully that's about half of all that gone now", to which the applicant responded "That's good… I don't need to know about that bit" ([13.87]).
In October 2017, Mr Maguire told the applicant that Ms Waterhouse had property at Badgerys Creek and that he had been involved in trying to resolve road access issues for her with the RMS ([8.212], [13.122]). On 18 October 2017, Mr Maguire took Ms Waterhouse to Ms Berejiklian's office and asked her staff to solve Ms Waterhouse's "big problem", which was a need for road access to her Badgerys Creek property ([13.121]-[13.125]).

[46]

Conclusion as to ground of review 11

The applicant submits that it is "pivotal to the application of s 11(2) that there be sufficient specificity in a putative 'matter' as to permit sensible consideration of whether there were 'reasonable grounds' for a suspicion of corrupt or possibly corrupt conduct". Each of the matters which are the subject of the Commission's s 11 findings is identified by reference to the conduct or subject matter, timing and persons involved, and on its face permits a sensible consideration of whether there were grounds for suspicion of corrupt or possibly corrupt conduct. These reasons outline each of these matters in order to test whether that is so, and do not seek to describe all the circumstances which were subject to evidence taken into account by the Commission. This being the position, and irrespective of the scope of a "matter" which can be the subject of s 11(2), there was no material error on the part of the Commission.
Ground of review 11 should be rejected.

[47]

Ground of review 12

Ground of review 12 is: Further or in the alternative to ground 1, the Commission, having found that: a. 'the obstacles to a prosecution [of Ms Berejiklian] would be so formidable as to make it reasonably clear that any advice from the DPP with respect to the matter would be to the effect that no prosecution would be commenced' (R [13.416]), and b. 'there is insufficient admissible evidence ... for inferences to be drawn that would prove the mens rea of the offence of misconduct in public office to the required standard of beyond reasonable doubt in any criminal prosecution' (R [13.417]), reached an illogical or irrational result in finding that it was satisfied to the requisite standard that any breach of s 11(2) of the ICAC Act by Ms Berejiklian was 'dishonest' and 'partial' within the meaning of s 8(1)(b) of the ICAC Act (R [13.387]-[13.388])…
By this ground it is contended that the Commission's finding that the applicant's failure to discharge her obligations under s 11(2) of the Act constituted "serious corrupt conduct" is "internally inconsistent" with its subsequent decision in all the circumstances not to make a statement that consideration be given to obtaining the advice of the Director of Public Prosecutions (DPP) with respect to the prosecution of the applicant for misconduct in public office ([13.416]-[13.418]).
As noted at [50] above, s 74A of the Act concerns the content of reports made by the Commission to Parliament. Subsection 74A(2) is: 74A Content of reports to Parliament … (2) The report must include, in respect of each "affected" person, a statement as to whether or not in all the circumstances the Commission is of the opinion that consideration should be given to the following - (a) obtaining the advice of the Director of Public Prosecutions with respect to the prosecution of the person for a specified criminal offence, (b) the taking of action against the person for a specified disciplinary offence, (c) the taking of action against the person as a public official on specified grounds, with a view to dismissing, dispensing with the services of or otherwise terminating the services of the public official.
The Commission decided not to recommend to the obtaining of advice from the DPP at [13.407]-[13.418]. Its reasons included the following: 13.409. The elements of the offence of misconduct in public office have been set out in chapter 3. Counsel Assisting submitted in relation to that element requiring the prosecutor to prove that the accused has 'wilfully misconduct[ed]' her or himself, that it is only regarded as proven where it is established that the accused knew that (or was reckless as to whether) her or his conduct constituted misconduct and that the accused would not have engaged in the impugned conduct but for her or his improper purpose. 13.410. Counsel Assisting submitted that as Ms Berejiklian gave her evidence to the Commission under objection, it would not be admissible against her in any criminal proceedings for an offence of misconduct in public office. As a result, proof of her mental state, including as to the question of whether any misconduct by her was 'wilful', would be left to inference from the circumstances. However, they submitted that there is a considerable body of evidence independent of Ms Berejiklian's from which inferences could be drawn as to her state of mind and from which potentially innocent hypotheses could be excluded in relation to her failure to exercise her s 11 duty. … 13.413. Ms Berejiklian submitted that even if the Commission were satisfied that she breached her s 11 duty, it is at least reasonably clear that any advice from the DPP as to a prosecution for misconduct in public office in relation to that conduct would be that there should be no such prosecution. She submitted, first, that in this circumstantial case, the prosecutor would inevitably fail in proving the mens rea element of the offence. The prosecutor would need to prove, relying solely on inference - as Counsel Assisting acknowledged - not only that Ms Berejiklian had reached the required state of suspicion under s 11(2) of the ICAC Act, but that she appreciated that fact at the relevant time and decided not to report it to the Commission. 13.414. Ms Berejiklian submitted that the prosecutor would need to disprove any other reasonable hypothesis raised at trial for her failure to report, or, as Counsel Assisting acknowledged, would be required to show her guilt was 'the only rational inference that the circumstances would allow them to draw'. Ms Berejiklian submitted that the absence of a plausible nefarious motive on her part not to comply with her s 11 duty would be an additional obstacle for a prosecutor to prove a wilful intent on her part. 13.415. Secondly, Ms Berejiklian submitted that there was a real question whether the prosecutor could prove that element of the offence of misconduct in public office requiring that the impugned conduct be 'so serious as to merit criminal punishment'. She submitted that her conduct in relation to her s 11 duty was not capable of meeting such a high bar. She submitted that the absence of a nefarious motive on her part would be fatal to any prosecutor making out this element and further, that a 'reckless failure' to comply with s 11(2), even if capable of being proved and satisfying the mens rea element, would not be 'so serious as to merit criminal punishment'. 13.416. The Commission accepts Ms Berejiklian's overall submission that the obstacles to a prosecution would be so formidable as to make it reasonably clear that any advice from the DPP with respect to the matter would be to the effect that no prosecution would be commenced. The offence of misconduct in public office requires proof of elements not essential to the matters which constitute corrupt conduct under the ICAC Act. For example, as explained in this report, it is unnecessary to establish such matters as a nefarious motive. 13.417. The Commission is satisfied on the evidence before it to the requisite standard on the balance of probabilities that inferences can be drawn from the facts and circumstances to establish that Ms Berejiklian wilfully failed to comply with her s 11 duty. The Commission concludes, however, that there is insufficient admissible evidence, particularly in the absence of Ms Berejiklian's evidence, for inferences to be drawn that would prove the mens rea of the offence of misconduct in public office to the required standard of beyond reasonable doubt in any criminal prosecution.

[48]

Ground of review 13

Ground 13 is as follows: Further or in the alternative to ground 1, the Commission made a material error of law in finding that for a finding of 'dishonest' exercise of official functions for the purposes of s 8(1)(b) of the ICAC Act, 'it is not essential that the person accused of dishonesty appreciated her or his act or omission to be dishonest according to the standards of ordinary people' (R [13.371])…
This ground also addresses the Commission's finding of "serious corrupt conduct" with respect to the applicant's failure to discharge her obligations under s 11. The Commission held that failure constituted a "dishonest" exercise of her official functions for the purposes of s 8(1)(b) ([13.387]). It also held, however, that breach of duty was "partial" because the applicant preferred Mr Maguire's interests in having his conduct concealed in order to protect him from further investigation by the Commission ([13.388]).
Success on this "dishonesty" ground of review would not affect the Commission's separate finding that the same conduct amounted to "partial" conduct. It follows that the error of law contended for by this ground could not itself result in the quashing of the Commission's findings of serious corrupt conduct based on breaches of s 11.
The applicant argues that, on its proper construction, "dishonest" conduct in s 8(1)(b) includes a subjective element requiring that the person appreciated or realised that his or her conduct was dishonest according to the standards of ordinary people.
That argument proceeds as follows. Section 8(1)(b) was in the Act when enacted in 1988, and has not been amended. The word "dishonest" in that provision was and remains undefined. The authorities as to the meaning of "dishonest" relied on by the Commission reflect a "modern" interpretation of "dishonest", whereas the "prevailing understanding" at the time the Act was passed was that the test for dishonesty included whether the person also must have realised the conduct was dishonest by the standards of ordinary people (see R v Ghosh [1982] QB 1053 at 1064; R v Love (1989) 17 NSWLR 608 at 614; and Peters v The Queen (1998) 192 CLR 493; [1998] HCA 7 at [9]-[14] (Toohey and Gaudron JJ)).
There is no reason for construing "dishonest" in the Act other than in its ordinary sense, which is "dishonest according to ordinary notions" rather than "dishonest in some special sense" (Peters at [15], [18] (Toohey and Gaudron JJ)). That is a question of fact such that in a criminal trial it is for the jury to determine whether the conduct of the accused was dishonest according to the standards of ordinary, decent people (Peters at [18] (Toohey and Gaudron JJ), [86] (McHugh J, Gummow J agreeing)).

[49]

Conclusion

In the result, each ground of review has been rejected. Ms Berejiklian's application to quash the Commission's findings of "serious corrupt conduct" or to have those findings declared as made without or in excess of jurisdiction should be dismissed, with costs.
WARD P: I have had the opportunity to consider the reasons of the majority (Bell CJ and Meagher JA) in draft. As their Honours have made clear, the proceedings before this Court (being an application for judicial review) do not permit a "merits" review of the findings of the respondent (the Commission). Rather, what is contended is that the Commission's findings that the applicant had engaged in serious corrupt conduct were affected by jurisdictional error and errors of law on the face of the record. The applicant seeks an order quashing those findings or declaring that they were affected by jurisdictional error or otherwise not made in accordance with law.
For the reasons that follow I have reached a different view as to Ground 1 from that reached by the majority.
The background to the matter has been comprehensively set out in the majority judgment as have the relevant statutory provisions.
As to Ground 1, I did not understand Senior Counsel for the applicant to be abandoning the written submissions provided before the hearing. Rather, I understood the oral submissions to be emphasising a particular aspect of the applicant's argument that the report entitled "Investigation into the conduct of the then member of Parliament for Wagga Wagga and then Premier and others (Operation Keppel)" (Report) was delivered in excess of jurisdiction. However, nothing ultimately turns on whether the applicant's oral submissions were so confined given the conclusion I have reached as to the aspect that was emphasised in the applicant's oral submissions on the lack of authority of the Hon Ruth McColl AO SC (once her appointment as Assistant Commissioner had expired and she was simply a consultant appointed pursuant to s 104B of the Independent Commission Against Corruption Act 1988 (NSW) (the Act) to provide services, information or advice to the Commission) to make witness credibility assessments which could then be 'adopted' by the Commission as the basis for the adverse findings it made against the applicant.
The constitution of the Commission has been explained in the majority judgment. Relevantly, as their Honours have noted, the Act refers variously to the "making" of a report (s 74(8)), the preparation of a report (see s 74(2)-(4)), and the furnishing of a report (see s 74(7)). The function of making a report under the Act is one that cannot be delegated (s 107(4)), other than to an Assistant Commissioner if the Chief Commissioner is of the opinion that there would or might be a conflict of interest or it would be in the interests of justice to do so (s 107(6)).

[50]

Amendments 26 July 2024 - Typographical error in date at [61] amended DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 26 July 2024

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