… it seems to us that the direction as to the mental element of the offence should have been that Mr Macdonald could only be found to have committed the crime (subject to the other elements being made out) if the power would not have been exercised, except for the illegitimate purpose of conferring a benefit on Mr Maitland and DCM.
254 The Queensland Court of Appeal reached a similar conclusion in R v Maudsley (2021) 9 QR 587; [2021] QCA 268 at [30].
255 The question for this Court is whether the conduct found by the Commission was capable of constituting a "partial exercise" of any of the applicant's official functions. That conduct was that the applicant had consciously preferred the ACTA and RCM Stage 2 funding proposals, and concealed from the Commission Mr Maguire's conduct which she suspected concerned or might have concerned "corrupt conduct", for an "unacceptable" reason. The early High Court authorities of R v Boston and Wilkinson v Osborne, and recent High Court authority of Re Day (No 2), to which reference has been made above, hold that a parliamentary member and Minister is to act in exercising public functions and powers "uninfluenced" by other considerations, and with "fidelity and with a single-mindedness for the welfare of the community".
256 Under s 8(1)(a), "corrupt conduct" includes any conduct that could adversely affect, directly or indirectly, the honest or impartial exercise of official functions. Similarly, having a conflicting private interest which is capable of influencing, and does influence, the exercise of a function or power is sufficient to constitute a "partial" exercise of the power under s 8(1)(b), and irrespective of whether the outcome of that exercise would not have been different in the absence of the private interest. In such circumstances, the position remains that the power has been exercised "influenced" by other considerations.
257 This conclusion is supported by the reasoning in Macdonald and the often cited and applied dicta of Isaacs and Rich JJ in R v Boston at 396–397.
258 Ground of review 9 should be rejected.
Ground of review 10
259 This ground is as follows:
Further or in the alternative to ground 1, the Commission made a material error of law in finding that Ms Berejiklian's conduct in connection with funding promised and awarded to ACTA and RCM Stage 2 involved the partial exercising of her official functions, without engaging in any comparative exercise addressing how Ms Berejiklian had or would have treated relevantly identical funding requests (R [10.301]–[10.334])…
260 As with ground 8, this ground is advanced as an error of law vitiating the Commission's partial conduct findings in relation to the funding promised and or awarded to ACTA ([11.594]) and in relation to the funding reserved and or awarded to RCM Stage 2 ([12.314]). The argument made is that for the Commission to make a valid finding of partial conduct it was legally necessary that it undertake a comparison between the
