Ground of review 9
237 The terms of this ground are as follows:
Further or in the alternative to ground 1, the Commission made a material error of law in finding partial exercises of Ms Berejiklian's official functions within the meaning of s 8(1) (b) of the ICAC Act, in the absence of a finding that the conduct would not have been engaged in but for an unacceptable reason (R [10.349]–[10.350])…
238 Section 8(1)(b) provides that "corrupt conduct" includes "any conduct of a public official that constitutes or involves the dishonest or partial exercise of any of his or her official functions". The applicant submitted before the Commission that conduct is only partial, and thus corrupt, within the meaning of s 8(1)(b) where that conduct would not have been engaged in "but for" the partiality ([10.340]–[10.341]).
239 Limiting the application of s 8(1)(b) to conduct which would not have been engaged in but for the partiality would exclude from the scope of that provision some exercises of a public power or function that were partly but not solely influenced by the prohibited private interest. That would be so because the blunt "but for" test would exclude from the scope of s 8(1)(b) any exercise of a power or function that would have occurred even if the prohibited private interest had not influenced the public official.
240 At this point, the Commission's findings as to partial conduct in breach of s 8(1)(b) should be recalled. As to the ACTA funding, they are at [11.572] and [11.593]–[11.594], and in the following terms:
11.572. The Commission concludes that Ms Berejiklian did consciously prefer the ACTA proposal for a reason which was unacceptable, namely, her close personal relationship with Mr Maguire. It rejects her evidence to the contrary. The circumstances in which it came onto the ERC agenda bespeak irregularity, all of which was within her control…
…
11.593. The Commission also finds that Ms Berejiklian's exercise of her official functions in relation to the ACTA proposal was undertaken with a subjective consciousness that she was doing so for an unacceptable reason. This can be imputed to her from the context in which she acted, what she did in the exercise of her official functions and the fact that at least one of the reasons she did so was to prefer Mr Maguire, influenced by the existence of their close personal relationship or at least by a desire on her part to maintain or advance that relationship.
11.594. In all these circumstances, the Commission finds that, in 2016 and 2017, Ms Berejiklian engaged in conduct constituting or involving the partial exercise of her official functions within the meaning of s 8(1)(b) of the ICAC Act in connection with funding promised and awarded to ACTA by exercising her official functions influenced by the existence of her close personal relationship with Mr Maguire and by a desire on her part to maintain or advance that relationship.
241 In relation to RCM Stage 2, the relevant findings are at [12.313]–[12.314]:
12.313. Insofar as Ms Berejiklian approved the funding reservation of RCM Stage 2, the facts are also set out in the s 8(1)(c) section. The Commission finds that in approving the decision to make the funding reservation for RCM Stage 2, Ms Berejiklian consciously preferred Mr Maguire, with whom she was in a close personal relationship and who she knew was its 'principal proponent'. The Commission also finds that in so doing, Ms Berejiklian knew that decision was wrong, as demonstrated not only by the fact she concealed her relationship at the time, but also by the fact that she approved the funding reservation without any support from either the relevant departmental officers or her own staff. The only apparent purpose of the decision was to throw money at Wagga Wagga as Mr Maguire had demanded.
12.314. The Commission finds that in 2018, Ms Berejiklian engaged in conduct constituting or involving the partial exercise of her official functions within the meaning of s 8(1)(b) of the ICAC Act in connection with funding promised and awarded to RCM