Constitution Act 1902 (NSW), a provision inserted in 1987, makes express reference to the Premier as being a Minister of the Crown. See also New South Wales v Bardolph (1934) 52 CLR 455 at 507; [1934] HCA 74, where Dixon J noted that "in New South Wales the Premier is a Minister of the Crown known to the law"; and Anne Twomey, The Constitution of New South Wales (2004, Federation Press) at 690–691.
206 The argument in support of this submission is as follows. The "key" provisions (s 7 and Sch cl 12) set up a "dichotomy" between Ministers (other than the Premier), on the one hand, and the Premier, on the other. That dichotomy is apparent in s 7(1) and (2), and in a "regime" which provides for the Premier to superintend a Minister's obligations, receiving their disclosures (Sch cl 10) and making rulings as to whether a potential conflict so disclosed prevents the relevant Minister from continuing to act (s 7(2), Sch cl 12(2)).
207 The Commission rejected this construction of the Code ([10.84]–[10.126]). It did not err in doing so.
208 As the Commission contends, there is no such dichotomy between a Minister, other than the Premier, and the Premier when s 7 of the Code is read together with cl 12 of the Schedule. Section 7(3) in its terms applies to all Ministers, including the Premier. All are "taken" to have a "conflict of interest in respect of a particular matter on which a decision may be made or other action taken" if the first sentence of s 7(3) or s 7(3)(a) and (b) are satisfied. Under cl 12(1) of the Schedule, any Minister having such a conflict of interest must abstain from making or participating in a decision, or from taking or participating in any action in relation to the matter.
209 The obligation to abstain is subject to cl 12(2) and (3). The process in cl 12(2) does not address the position of the Premier, who accordingly could not be subject to a procedure providing for the making of a ruling by him or her. However, that is not the case in relation to cl 12(3), which addresses conflicts arising during a meeting of the Executive Council, the Cabinet or a Cabinet Committee, in which case the Minister having the conflict must abstain from participating, subject to the Premier, or the chair of the meeting in the absence of the Premier, otherwise approving. The application of the ruling regime in cl 12(2) to the Premier is provided for by cl 27(5) of the Schedule, which deals with the subject "Rulings", and provides that a "ruling in respect of the Premier may be given if approved by the Cabinet".
210 This construction of these provisions is not strained, and gives effect to the language of s 1(2) of the Code. That subsection provides that the Code is to apply to all current and future Ministers, including the Premier, as the definition of "Minister" in s 11 provides.
211 Section 4 of the Code makes a knowing breach of cl 12(1) of the Schedule (which requires a Minister with a "conflict of interest" as defined in s 7(3) of the Code to abstain from decision-making) a substantial breach of the Code by the Minister concerned. As has already been observed, the Code contains provisions that give the Premier a role in managing and dealing with conflicts of interest, in each case being conflicts other than those of the Premier, which would prevent the relevant Minister from making or
