reference to the perceived merits of any of the proposals in confirming its findings arising from breaches of public trust, it submits that these references were not material to those findings.
189 Eight of the 11 paragraphs in the Report relied on by the applicant in support of this ground (being those identified in the ground of review, plus [11.393] and [11.583][11.584]) relate to ACTA. The remaining three relate to RCM.
190 At [11.393]–[11.394], the Commission records the applicant's submissions as to the relevance of the merits of any of the proposals. First, the applicant submitted that the merits of the ACTA proposal had "little, if any, rational bearing on the allegations against her". Secondly, it was said that it was beyond the function or role of the Commission to make any "concluded finding as to the merits" of either the ACTA or RCM proposals. Thirdly, it was said that there was "simply no utility" in "dredging through, and making findings on, historical concerns of departmental officers who may have been sceptical as to the merits of the proposal" in circumstances where the ACTA proposal was actively promoted by the relevant Minister (Mr Ayres, the then Minister for Sport) and the subject of a unanimous ERC decision.
191 In response, at [11.395] the Commission states that it had "not itself determined [the ACTA] proposal's merits"; rather, it had considered evidence of those who were involved in the approval process, politically and administratively, as part of its investigatory process. The Commission maintained that the merits of the proposal — in this context referring to the merits as perceived at the time by those whose task it was to consider critically the merits or otherwise of such a proposal — were "demonstrably germane" to that investigation.
192 When considering whether it should be inferred that the applicant "went out of her way" to ensure the ACTA proposal went forward because of her relationship with Mr Maguire, and not because of its "inherent merits", the Commission at [11.456] described those inherent merits as "flimsy, if not non-existent", but not by reference to its own assessment (see, for example, the summary of a Treasury analysis at [11.457]). Earlier, at [11.399], the Commission had also summarised contemporaneous Treasury views concerning the ACTA proposal:
… That was almost inevitable in the light of Treasury opposition (it said the business case analysis was inconsistent with Treasury economic appraisal guidelines and it was unable to accurately assess the economic benefits arising from the project from a state perspective), and the terms of the ERC submission, which recommended that ACTA should enter into a formal commitment with the Office of Sport to 'independently confirm, through market testing, the capital cost of the project to the level of robustness required in NSW Treasury's Guidelines for Capital Business'.
193 There was nothing irrational or otherwise impermissible in the Commission's reasoning process making reference to the merits of the ACTA or RCM proposals as they were perceived at the time by those charged with the making of such assessments. That was a circumstance which could be taken into account in forming a view about the larger question as to whether the applicant's support for the proposals was partial. It was
