terms and as requiring that the applicant act only in accordance with what she believed to be the public interest, uninfluenced by other considerations ([11.409]). The Commission cited in support of that conclusion Re Day (No 2) at [49].
173 The Commission also referred (at [11.410]) to cl 1 of the Preamble to the Ministerial Code, which provides that Ministers must "exhibit and be seen to exhibit the highest standards of probity in the exercise of their offices and that they pursue and be seen to pursue the best interests of the people of New South Wales to the exclusion of any other interest".
174 In this context, the applicant's contention that there was a material error by the Commission in formulating the broad content of her "public trust" duty must be rejected. First, a Minister's obligation not to breach public trust is expressed more broadly than an obligation prohibiting the promotion of private pecuniary interests in circumstances where there is a conflict of interest and public duty. Secondly, that public duty is sufficiently identified in the cases cited above, including R v Boston and Re Day (No 2). The Commission did not err in identifying the nature of that duty for the purpose of determining whether there was a conflict of interest and duty. Nor did it err in concluding that the applicant's having exercised powers and functions whilst in a position of conflict of interest and duty would constitute a breach of public trust within s 8(1)(c).
175 The analysis impugned by this ground was relevant to two points in the Commission's reasoning in support of each of these "ultimate" findings. The first was in making findings of a breach of public trust under s 8(1)(c) by exercising functions whilst in a position of conflict. In relation to ACTA, that finding is at [11.460]. In relation to RCM Stages 1 and 2, those findings are at [12.223]. The second was in addressing s 9(1)(d) in relation to the conduct found to constitute a breach of s 8(1)(c). In that analysis, which required attention to whether there was a substantial breach of the Ministerial Code, the Commission held that the applicant was in a position of conflict between her public duty "as a representative of others to act in the public interest" and her private interest. In relation to ACTA, the finding is at [11.452]; and in relation to RCM Stages 1 and 2, it is at [12.225]. The Commission concluded for the purposes of s 9(1)(d) that there were substantial breaches of s 7(2) of the Code and of cll 10(1), 11 and 12 of the Schedule to the Code in relation to the ACTA funding ([11.489]) and RCM Stages 1 and 2 ([12.255]).
176 It follows that there was no material error of the kind alleged by this ground in the Commission's findings of "serious corrupt conduct" relying on breaches of public trust within s 8(1)(c).
177 It is unnecessary to enter further into any debate as to whether the obligations of a fiduciary are only proscriptive or, depending on the relationship, can include affirmative obligations such as that of a company director who is said to owe a fiduciary duty to exercise powers bona fide in the interests of the company a whole (see Xiao v BCEG International (Australia) Pty Ltd (2023) 111 NSWLR 132; [2023] NSWCA 48 at [111]–
