Ground of review 7
201 This ground is:
Further or in the alternative to ground 1, the Commission made a material error of law in finding that cl 7, and cll 10–12 of the Schedule of the Ministerial Code imposed disclosure obligations on Ms Berejiklian when she occupied the office of Premier (R [10.124]). Properly understood, the Premier's role in the conflict disclosure regime prescribed by the Ministerial Code is the recipient of disclosures, and the maker of rulings as to when Ministers are permitted to act following disclosure. This finding was material to:
a. the ultimate finding that Ms Berejiklian engaged in serious corrupt conduct in connection with decisions concerning the RCM proposal, involving a substantial breach of the Ministerial Code for the purposes of s 9(1)(d) of the ICAC Act (R [1.5.3], [12.255]).
202 Ms Berejiklian accepted that the Ministerial Code applied to her when she was Treasurer, and accordingly at the time the ACTA funding was dealt with at the ERC meeting on 14 December 2016 ([10.76]). However, she maintained that it did not apply to her when she was Premier, and accordingly at the time when the RCM Stage 1 decisions were made at ERC meetings on 12 and 24 April 2018 ([12.84], [12.90]), and when the RCM Stage 2 recital hall funding reservation and commitment were made on 24 August 2018 ([12.137], [12.153]).
203 Each of the findings as to "serious corrupt conduct" involving a "breach of public trust" included for the purposes of s 9(1)(d) that there were also breaches of s 7(2) of the Ministerial Code (as well as breaches of cll 10(1), 11 and 12 of the Schedule to the Code).
204 For convenience, the immediately relevant provisions of the Code are as follows:
Preamble
1 It is essential to the maintenance of public confidence in the integrity of Government that Ministers exhibit and be seen to exhibit the highest standards of probity… and be seen to pursue the best interests of the people of New South Wales to the exclusion of any other interest.
…
3 Ministers have a responsibility to maintain the public trust that has been placed in them by performing their duties with honesty and integrity… and to advance the common good of the people of New South Wales.
4 Ministers acknowledge that they are also bound by the conventions underpinning responsible Government, including the conventions of Cabinet solidarity and confidentiality.
…
11 In particular, Ministers have a responsibility to avoid or otherwise manage appropriately conflicts of interest to ensure the maintenance of both the actuality and appearance of Ministerial integrity.
1 Preliminary
(1) This is the NSW Ministerial Code of Conduct.
(2) The NSW Ministerial Code of Conduct applies to all current and future Ministers and Governments.
…
4 Compliance with the Schedule to the NSW Ministerial Code of Conduct
A Minister must not knowingly breach the Schedule to the NSW Ministerial Code of Conduct. Accordingly, a substantial breach of the Schedule is, if done knowingly, a substantial breach of the NSW Ministerial Code of Conduct.
