treatment said to involve or constitute partial treatment and the treatment of other persons or things "in relevantly identical circumstances". It is said that there was no
261 such consideration by the Commission when making the findings referred to above. The same argument was made to and rejected by the Commission ([10.301]–[10.339]). Relying on Mahoney JA's reasons in Greiner at 161, it was submitted on behalf of the applicant that a finding under s 8(1)(b) required "a comparison between the person granted the so-described 'partial' treatment and treatment of other persons in relevantly identical circumstances" ([10.301]). This language adopts a statement made by Grove J in Woodham v Independent Commission Against Corruption (1993) 30 ALD 390 at 396 (see [10.295]). That statement was directed to the absence of evidence in that case supporting a finding of "partiality" in the sense described by Mahoney JA in Greiner at 161. In doing so, Grove J does not say or suggest in Woodham that such a comparison has to be undertaken if there is to be a legally valid finding of a "partial" exercise of any official function within s 8(1)(b).
262 The adoption of a such a prescriptive rule is not supported by Mahoney JA's reasons or the likelihood that in many cases there will not be a relevantly identical comparator to the preferred or advantaged person or thing. The official function being exercised in Greiner was the appointment of a person to a senior position in the public service. Having described "partiality" by reference to the five elements which together were said to be "a sufficient indication of what is involved in partiality of the present kind" (emphasis added), Mahoney JA continued (at 161–162):
In describing partiality in this way, I am conscious that exceptions, qualifications and explanations may be necessary for the application of the term in particular cases…
The form of the advantage conferred may also vary. Thus, the advantage may be seen in the actual decision, that is, the decision to award a position, a benefit or the like: the advantage may lie in the award of it to one rather than another. But the advantage may lie merely in the process leading to the exercise of a power or the grant of a benefit. A person may be preferred by being put in a position of advantage in the process leading to the decision to award an office or, indeed, by the mere fact of being brought into the contest as one of the contending parties…
Partiality involves, in my opinion, the advantaging of a person for an unacceptable reason. It is to this to which most attention was directed in argument, in one form or another. Preference is not, as such, partiality. A person may be preferred for a reason which the law or the rules of the contest allow. Partiality involves essentially that there be a preference for a reason which is in this sense not acceptable.
263 As these observations make plain, partiality involves a preference or advantage for an unacceptable reason, which may or may not occur in circumstances such as those in an appointment to public office, where the alleged partiality may be between identified individuals or classes whose comparative merits are amenable to analysis. Undertaking a comparison in such circumstances may assist in identifying preferences or advantages, depending on the nature of the power. It does not follow, however, that such an approach should be mandatory, and irrespective of the circumstances in which the alleged preference or advantage has been conferred.
264 The Commission correctly described, "without being exhaustive", the test generally to be applied (at [10.334]):
