expression does not include every kind of non-pecuniary interest; and concludes with the bare assertion that, where there is no more than a personal connection, there is no "private interest". This construction of that expression would have the effect of excluding from the circumstances in which there might be a conflict of interest within s 7(3) any non-pecuniary "interest" of a Minister, which is no more than a personal connection, notwithstanding that the nature and extent of that interest is such that it could objectively have the potential to influence him or her in the making of any decision or taking of any action. There is no warrant in s 7(3) or the Code more generally for treating the expression "private interest" as doing more than referring to any personal interest of a Minister, leaving the question whether that interest is sufficient to give rise to a conflict of interest, to which the Code applies, to the factual evaluation required by s 7(3).
159 That evaluative exercise is to be undertaken objectively and by reference to the underlying circumstances, including the nature of the interest and its potential to influence the performance of the relevant public duty arising with respect to the making of a decision or taking of any action.
160 The Commission's findings as to the "close personal relationship" between the applicant and Mr Maguire are at [10.8]–[10.38]. The Commission accepted Counsel Assisting's submission that an aspect of that relationship was the applicant's "concern to address what she perceived as Mr Maguire's insecurities", which, as a matter of human experience, was "expected to have manifested itself in a continuing desire to assuage his feelings and support him to the best of her ability" ([10.29]). The Commission found that the relationship between Ms Berejiklian and Mr Maguire, "being one of mutual love and a mutual close emotional connection", was capable of influencing and, as discussed in relation to ground 2, in the case of Ms Berejiklian did "influence her conduct both personally and in the performance of her public duties" ([10.38]).
161 It was open to the Commission to find that the close personal relationship between the applicant and Mr Maguire was, from her perspective, a "private interest" that gave rise to a conflict of interest and duty. Whether it did so called for an evaluative judgment, which it was within the Commission's authority to undertake.
162 In the result, ground of review 3 is rejected.
Ground of review 4
163 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
