Independent Commission Against Corruption (1992) 28 NSWLR 125 at 144 that "the references to partial and impartial conduct in s 8 [of the Act] must be read as relating to conduct where there is a duty to behave impartially".
225 At [10.363] the Commission said:
… The concept of a duty to act impartially insofar as it relates to a member of Parliament sits within the overriding obligation of such a person to maintain the public trust and to act in the public interest. That is an obligation which, subject to statute as Mahoney JA explained in Greiner v ICAC, imposes a duty to act impartially, that is, always to exercise the power for the purpose for which the public power was granted.
226 The Commission considered and proceeded on the basis that there was "no doubt that Ministers must act impartially when allocating public funds" (see [11.570] in relation to ACTA and [12.303] in relation to RCM Stage 2). In each case the Commission concluded that the applicant consciously preferred the relevant proposal for a reason which was unacceptable, namely "her close personal relationship with Mr Maguire".
227 The applicant maintains by this ground that as Treasurer and member of the ERC exercising the power to grant funding in relation to ACTA, and as Premier exercising the power to reserve funds in respect of RCM Stage 2, that she had no duty to act impartially. It is said that in determining whether the exercise of a Minister's functions is subject to a duty to be impartial it is necessary to identify the specific conduct to which the duty attaches.
228 In Greiner, the conduct the subject of investigation involved the appointment of a person to a position in the public service where there was a statutory requirement for that appointment to be made on the basis of merit. Gleeson CJ and Mahoney JA were satisfied that the duty to act impartially was engaged.
229 At 160, Mahoney JA described the mischief the Parliament sought to deal with by its proscription of partiality as being the misuse of public power. As to that misuse, he observed: It is wrong deliberately to use power for a purpose for which it was not given: partiality is a species of this class of public wrong. Public power has limits in addition to those imposed by the terms on which it is granted. Legislation may, in granting power, impose limits as to the circumstances in which it may be exercised or the mode of its exercise. But there are in addition limits upon the ends for which it may be exercised…
230 The Court of Appeal of England and Wales made the same point in Edge v Pensions Ombudsman [2000] Ch 602 at 627 in the context of the obligation of the trustees of a pension scheme:
… the so-called duty to act impartially—on which the ombudsman placed such reliance —is no more than the ordinary duty which the law imposes on a person who is entrusted with the exercise of a discretionary power: that he exercises the power for the purpose for which it is given, giving proper consideration to the matters which are relevant and excluding from consideration matters which are irrelevant…
231 It is not controversial that the fundamental obligation of a member of Parliament is "the duty to serve and, in serving, to act with fidelity and with a single-mindedness for the welfare of the community" (emphasis in original) (R v Boston at 400 (Isaacs and Rich JJ)). As has already been said at [151] and [171] above, the content of that duty includes "an obligation to act according to good conscience, uninfluenced by other considerations, especially personal financial considerations" (Re Day (No 2) at [49]
