(3) A conflict of interest arises in relation to a Minister if there is a conflict between the public duty and the private interest of the Minister, in which the Minister's private interest could objectively have the potential to influence the performance of their public duty. Without limiting the above, a Minister is taken to have a conflict of interest in respect of a particular matter on which a decision may be made or other action taken if:
- (a) any of the possible decisions or actions (including a decision to take no action) could reasonably be expected to confer a private benefit on the Minister or a family member of the Minister, and
- (b) the nature and extent of the interest is such that it could objectively have the potential to influence a Minister in relation to the decision or action.
30 Section 11 of the Code contains definitions which also apply to the Schedule, in each case "unless the context otherwise requires". The definition of "Minister" includes "any Member of the Executive Council of New South Wales". Section 11 defines "conflict of interest" as having "the meaning given by section 7(3) of this Code".
31 A "private benefit" is defined in s 11 to mean:
… any financial or other advantage to a person (other than the State of New South Wales or a department or other government agency representing the State), other than a benefit that—
(a) arises merely because the person is a member of the public or a member of a broad demographic group of the public and is held in common with, and is no different in nature and degree to, the interests of other such members, or
(b) comprises merely the hope or expectation that the manner in which a particular matter is dealt with will enhance a person's or party's popular standing.
The effect of prescribing the Ministerial Code under s 9(3) of the Act
32 As set out at [20] above, s 9(1)(d) of the Act provides that conduct of a Minister falling within the scope of s 8 does not amount to "corrupt conduct" unless, in the case of a Minister of the Crown, it could constitute or involve inter alia a "substantial breach of an applicable code of conduct", relevantly the Ministerial Code.
33 The effect of prescribing the Code under s 9(3) of the Act as "an applicable code of conduct" is, according to the note which follows s 1 of the Code:
… that a suspected breach of the Code may be investigated by the Independent Commission Against Corruption and, if substantiated, give rise to a finding of corrupt conduct. …
34 That conduct amounting to a substantial breach of the Code could give rise to a finding of "corrupt conduct" would appear to follow only if, consistently with the scheme of ss 8 and 9 of the Act, the relevant breach of the Code was also "corrupt conduct" within the more general language of s 8(1), (2) or (2A). That observation is not controverted by the note because regard can only be had to the note in the interpretation of provisions of the Code (s 12(1)), and not those of the Act, and because the note does not form part of the Act for the purposes of Interpretation Act 1987 (NSW), s 35.
