prosecuting for the offence of wilful misconduct.
300 More fundamentally, there is no necessary inconsistency between the two conclusions for reasons which are identified by the Commission's observations at [13.416]-[13.417], which accepted the applicant's "overall submission" before it on the s 74A(2) question. Whereas the Commission was not bound by the rules of evidence (s 17 of the Act), those strict rules would apply to the prosecution of any criminal charge. In addition, the evidence given by the applicant before the Commission would not be admissible in any criminal proceeding. Moreover, the standard of proof applied by the Commission was the balance of probabilities informed by the principle in Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34, whereas the standard to be applied in any criminal proceeding is satisfaction beyond reasonable doubt. Finally, as the applicant argued before the Commission ([13.414], [13.416]), the offence of misconduct in public offence requires proof of elements not essential to the matters which constitute "serious corrupt conduct".
301 Ground of review 12 fails.
Ground of review 13
302 Ground 13 is as follows: Further or in the alternative to ground 1, the Commission made a material error of law in finding that for a finding of 'dishonest' exercise of official functions for the purposes of s 8(1)(b) of the ICAC Act, 'it is not essential that the person accused of dishonesty appreciated her or his act or omission to be dishonest according to the standards of ordinary people' (R [13.371])…
303 This ground also addresses the Commission's finding of "serious corrupt conduct" with respect to the applicant's failure to discharge her obligations under s 11. The Commission held that failure constituted a "dishonest" exercise of her official functions for the purposes of s 8(1)(b) ([13.387]). It also held, however, that breach of duty was "partial" because the applicant preferred Mr Maguire's interests in having his conduct concealed in order to protect him from further investigation by the Commission ([13.388]).
304 Success on this "dishonesty" ground of review would not affect the Commission's separate finding that the same conduct amounted to "partial" conduct. It follows that the error of law contended for by this ground could not itself result in the quashing of the Commission's findings of serious corrupt conduct based on breaches of s 11.
305 The applicant argues that, on its proper construction, "dishonest" conduct in s 8(1)(b) includes a subjective element requiring that the person appreciated or realised that his or her conduct was dishonest according to the standards of ordinary people.
306 That argument proceeds as follows. Section 8(1)(b) was in the Act when enacted in 1988, and has not been amended. The word "dishonest" in that provision was and remains undefined. The authorities as to the meaning of "dishonest" relied on by the Commission reflect a "modern" interpretation of "dishonest", whereas the "prevailing understanding" at the time the Act was passed was that the test for dishonesty included whether the person also must have realised the conduct was dishonest by the
