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.
147 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.
148 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.
149 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).
150 The Commission submits in response that there is no basis in law for concluding that in order for a Minister of the Crown to be in a position of conflict of interest and duty, the Minister's "private interest" must at least be as contended for by the applicant. The Commission says that under the general law, and under the Ministerial Code, there is only one question, and that is whether the supposed "private interest" is capable of influencing the exercising of the Minister's public function in a way which conflicts with the proper exercise of his or her public duty.
151 That submission is correct and must be accepted. The position under the general law is sufficiently stated in Re Day (No 2) (2017) 263 CLR 201; [2017] HCA 14 at [49], where Kiefel CJ, Bell and Edelman JJ describe the content of the duty of a member of Parliament (in a representative parliamentary democracy) as a "duty as a representative of others to act in the public interest", that duty including "an obligation to act according to good conscience, uninfluenced by other considerations, especially personal financial considerations" (citing Wilkinson v Osborne (1915) 21 CLR 89 at 98–
