And it is a rule of universal application, that no one, having such duties to discharge, shall be allowed to enter into engagements in which he has, or can have, a personal interest conflicting, or which possibly may conflict, with the interests of those whom he is bound to protect.
170 As Lord Cranworth LC's formulation of the fiduciary's obligation makes clear, it is necessary to identify the interests of those whom the fiduciary is "bound to protect". The fiduciary's duty in respect of those interests arises where the fiduciary has undertaken "to act for or on behalf of or in the interests of another person in the exercise of a power or discretion which will affect the interests of that other person in a legal or practical sense". The fiduciary thereby "comes under a duty to exercise [that] power or discretion in the interests of the person to whom it is owed" (Hospital Products at 96–97 (Mason J)).
171 The Commission proceeded on the basis that it is a breach of public trust for a parliamentarian to exercise powers or functions whilst in a position where his or her private interests may conflict with the proper exercise of his or her public duty. For this purpose, that public duty is sufficiently described by Isaacs and Rich JJ in R v Boston (1923) 33 CLR 386 at 400; [1923] HCA 59 as "the duty to serve and, in serving, to act with fidelity and with a single-mindedness for the welfare of the community" (italics in original). As has already been said at [151] above, in Re Day (No 2) at [49], that obligation is described by Kiefel CJ, Bell and Edelman JJ as including the duty "to act according to good conscience, uninfluenced by other considerations, especially personal financial considerations". See also Re Day (No 2) at [179] (Keane J) and [269] (Nettle and Gordon JJ), and Hocking v Director-General of the National Archives of Australia (2020) 271 CLR 1; [2020] HCA 19 at [243], where Edelman J observes that the "loose references" to public powers being exercised "as it were upon trust" are "expressions of the duty of loyalty owed by holders of public offices created 'for the benefit of the State'".
172 The findings made by the Commission included that the applicant's conduct constituted breaches of public trust (s 8(1)(c)) because she had participated in ERC decisions concerning the ACTA and RCM funding proposals whilst in a position where her private interest in her relationship with Mr Maguire, the proponent of those proposals, conflicted with her public duty. The Commission formulated that public duty in positive
