Stage 2 by exercising official functions influenced by the existence of her close personal relationship with Mr Maguire or by a desire on her part to maintain or advance that relationship.
242 In relation to the breach of the s 11 duty, the relevant findings are at [13.387]–[13.389]:
13.387. In the Commission's view, Ms Berejiklian's conduct in failing to discharge her s 11 duty was motivated by self-interest, in the sense of a desire to conceal the truth about what she knew, and suspected, about Mr Maguire's conduct to protect herself, as well as by personal concern for Mr Maguire, to protect him from further investigation by the Commission. It was thereby dishonest.
13.388. The Commission also concludes that Ms Berejiklian's conduct in failing to discharge her s 11 duty was partial in the sense discussed above. She preferred Mr Maguire by concealing his conduct which she suspected concerned, or might have concerned, corrupt conduct for unacceptable reasons, which was to conceal the truth about what she knew, and suspected, about his conduct to protect him from further investigation by the Commission.
13.389. The Commission finds that Ms Berejiklian engaged in corrupt conduct constituting or involving the dishonest or partial exercise of her official functions within the meaning of's 8(1)(b) of the ICAC Act by refusing to discharge her duty under's 11 of the ICAC Act to notify the Commission of her suspicion that Mr Maguire had engaged in activities which concerned, or might have concerned, corrupt conduct.
243 The ground of review contending that the applicant did not have a duty to act impartially has been rejected (see [222]–[236] above). As has already been repeatedly observed, in Re Day (No 2) at [49], Kiefel CJ, Bell and Edelman JJ described a member of Parliament's "duty as a representative of others to act in the public interest" as including "an obligation to act according to good conscience, uninfluenced by other considerations, especially personal financial considerations" (emphasis added). The duty in s 8(1)(b) and its prohibition of the "partial exercise" of official functions is directed to any exercise of those functions which is influenced by a private interest conflicting with that public duty.
244 In support of a "causal test", the applicant relies on a statement of Mahoney JA in Greiner at 161. In his discussion of the meaning of "partial" in s 8, Mahoney JA identifies at least five elements that, if present, would be "a sufficient indication of what is involved in partiality of the present kind". The last of those elements is that "the preference was given not for a purpose for which, in the exercise of the power in question, it was required, allowed or expected that preference could be given, but for a purpose which was, in the sense to which I have referred, extraneous to that power" (Greiner at 161).
245 It is submitted that this element involves "an assessment of the relevant causal role of the reasons for the official's conduct", and that where the exercise of the relevant function was also engaged in for a proper or permitted purpose, it would not matter that there was also some perception of partiality, which did not in fact "cause" the conduct. In other words, and in the context of a decision to appoint someone to a position (as in Greiner), it is said that a Minister would not engage in partial conduct in breach of s 8(1)
