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…
164 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.
165 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.
166 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.
167 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.)
168 As is made clear in Chan v Zacharia (at 198 (Deane J)) and Hospital Products (at 103 (Mason J)), the "wider" conflicts rule referred to by Lord Upjohn – that a person is not to allow a conflict to arise between his or her duty and interest – is not a rule of equity but rather, in the words of Sir Frederick Jordan (Chapters on Equity in New South Wales (6th ed, 1947, Thomas Henry Tennant) at 115), a "counsel of prudence".
169 Lord Upjohn continued at 124, referring to Lord Cranworth LC's statement of a fiduciary's duty in Aberdeen Railway Co v Blaikie Bros (1854) 1 Macq 461 at 471:
