(b) if he or she prefers a particular applicant over another for private gain where more probably than not in the absence of the promise of private gain the Minister would still have chosen the same person.
246 Contrary to the applicant's submission, however, Mahoney JA's analysis does not descend into or require any assessment of the "causal" role of the purposes "extraneous" to a proper exercise of a power. Rather, his Honour's analysis focuses on the purposes and motives of the relevant public official in exercising the power or function, and whether there was any consideration of a purpose which is "extraneous" or a reason which is "unacceptable". In doing so, his Honour recognised that the form of preference or advantage conferred as a result of partial conduct may lie merely in the process leading to the exercise of a power rather than the conferring of a benefit by the exercise itself. In either case, the critical matter was whether in the decision-making process there was a conscious and intentional preferring or advantaging for an unacceptable reason (at 161–162).
247 In Macdonald v R; Obeid v R; Obeid v R (2023) 112 NSWLR 402; [2023] NSWCCA 250, the Court of Criminal Appeal (Bell CJ, Basten AJA and Button J) considered the elements of the common law offence of "wilful misconduct (or misfeasance) in public office" ([58]). The Court did so in circumstances where it had been submitted, in reliance on the earlier decision in Maitland v R (2019) 99 NSWLR 376; [2019] NSWCCA 32, that one element of that offence required that it be established that the public official would not have done the charged acts "but for" an identified improper purpose (Macdonald at [55], [56]).
248 In considering that question, the Court in Macdonald made plain (at [63]–[66]) that no causative requirement forms part of any breach of a duty of confidentiality or of impartiality of a public official. In doing so, the Court cited Isaacs and Rich JJ in R v Boston at 396–397, where the following was said about a member of Parliament agreeing for pecuniary remuneration to violate the law regulating his duties in that capacity:
Such violation may be positive or negative: it may consist of improper action or improper inaction. It is wholly independent of the merits of the matter in respect of which it takes place. A Judge who agrees for personal advantage to decide a cause in one prescribed way commits a crime, notwithstanding that as between the parties that decision might be just. A public ministerial officer who for private gain prefers one applicant to another is guilty of a crime, even though such preference would be otherwise fully justifiable. And equally, if a member of Parliament agrees for private advantage to act contrary to law in relation to his duty with respect to the public acquisition of land, it is utterly immaterial that the land has not been overvalued or that, apart from the illicit agreement, the same result might, or even would, have followed. (Emphasis added.)
249 Having referred to Maitland at [82] and [83], where there is reference to claims to relief for breaches of fiduciary duty and to remedies for unauthorised exercises of administrative power, in each case where the fiduciary or officer has taken into account both impermissible and permissible purposes, the Court of Criminal Appeal in Macdonald continued:
