Commission's assessment of whether the applicant's conduct involved breaches of s 7(2) of the Ministerial Code and cll 10(1), 11 and 12 of the Schedule to the Code, as well as whether those breaches were substantial.
185 For these reasons, ground of review 5 is not made out. The Commission did not find that the applicant breached her duty of public trust under s 8(1)(c) simply by not disclosing her relationship with Mr Maguire. The breaches as found were exercising her official functions whilst in a position of conflict of duty and interest. That involved no error of law. Findings were then made in relation to breaches of the Ministerial Code, which included failures to disclose. However, those findings of breach were made for the purposes of s 9(1)(d) rather than s 8(1)(c).
Ground of review 6
186 This ground is:
Further or in the alternative to ground 1, the Commission exceeded its authority and institutional competence by purporting to make findings as to the merits of the decisions concerning the ACTA and RCM proposals, and using those findings as a basis to assess whether Ms Berejiklian believed her conduct to be in accordance with the public interest (R [11.394]–[11.395], [11.456]–[11.457], [11.609], [12.205], [12.213]–[12.214]). The assessment of the merits of such decisions, and whether they are in fact in the public interest, is the exclusive province of the elected representatives responsible for them…
187 The applicant submits that the Commission assessed for itself whether the exercises of power in relation to the ACTA and RCM funding proposals were in the public interest. Specifically, it is said that the Commission purported to assess the merits of the proposals, and then used those findings as a means of assessing whether the applicant supported them because she believed they were in the public interest. Particular reference is made to 11 paragraphs in the Report. It is said that this assessment of whether these proposals were in the public interest was "beyond ICAC's institutional competence" and was the "exclusive province of the elected representatives responsible for them". It is also said that the Commission "was neither equipped for nor tasked with reviewing the merits of such decisions", and that the Commission erred in law in seeking to do so.
188 The Commission maintains that the applicant's argument is based upon a misconstruction of its reasons. It says that it did not decide for itself the merits of any of the ACTA or RCM proposals in making its findings of "serious corrupt conduct". Rather, in assessing whether the applicant had engaged in "partial" conduct in breach of s 8(1) (b), it had regard to contemporaneous assessments and appraisals made by participants engaged in the consideration process which called into question the merits of those proposals. The Commission considered that any such "perceived lack of merit and enthusiasm for the proposals" (emphasis added) was a circumstance to be taken into account and contrasted with the applicant's support for the proposals, thereby suggesting a degree of partiality on her part. Insofar as the Commission made
