… a public official's conduct can be characterised as 'partial' for the purposes of's 8(1) (b) if it involves the conscious advantaging or preferencing of another person, and the public official appreciated, or should have appreciated that, in the circumstances, the advantaging or preferencing was 'for an unacceptable reason'.
265 In applying that test, and in concluding that there was partial conduct in relation to the ACTA and RCM Stage 2 findings, the Commission relied upon a number of matters as bespeaking "irregularity", whereby each of those proposals received advantages or preferences in the process leading to the exercise of power, in its exercise, and in subsequent events.
266 The Commission found that, with respect to the ACTA funding proposal, the circumstances in which it came onto the agenda for the ERC meeting on 14 December 2016 included to following, which are extracted at [132] above and again included here for convenience:
11.572.1. Ms Berejiklian agreed that to have a matter put on an ERC meeting agenda urgently would require the intervention or at least the agreement of the treasurer.
11.572.2. Ms Berejiklian accepted that Mr Maguire had had discussions with Mr Bentley [an adviser within the applicant's office] and her with a view to getting her to give a request or direction that the ACTA matter be placed on the ERC agenda.
11.572.3. Mr Ayres [Minister for Sport] did not recall any direct discussion and agreement with Ms Berejiklian to have the ACTA matter on the agenda.
11.572.4. To the extent that a 5 December 2016 email said, 'I understand that Minister Ayres has agreed with the Treasurer that a submission seeking $5.5 million for a Clay Target Association in Wagga Wagga be considered by ERC on 14 December', Mr Ayres interpreted that to mean 'our officers interacting with each other, not me and the Treasurer'.
11.572.5. Lodging the final ACTA ERC submission one or two days before the ERC meeting was well outside the ordinary timeframes for dealing with an ERC submission.
11.572.6. Placing the ACTA proposal on the ERC agenda at such short notice was not standard procedure; it meant it by-passed 'a stage where it would be circulated amongst departments'.
11.572.7. On 6 December 2016, at a time when it does not appear the ERC submission could have been seen by Ms Berejiklian, she both placed the matter on the ERC agenda and indicated an inclination to support it.
11.572.8. The premier's office questioned why the ACTA submission could not be delayed until the new year, to allow time for market testing of costings and project planning to be completed.
11.572.9. Treasury recommended that the ACTA ERC submission not be supported as 'a net benefit to the State [had] not been adequately demonstrated'.
…
11.572.11. When the matter was taken off the ERC agenda, Mr Maguire 'fired up', and Ms Berejiklian reinstated it.
267 As to the period following that ERC decision, the Commission made the following findings:
11.574. That being said, the ERC decision was subject to conditions. Ms Berejiklian's interest in the ACTA proposal continued. She closely followed its progress, and the fulfilment of those conditions. As explained when dealing with s 8(1)(c), those close to the coal face of the implementation of the ERC ACTA decision, Mr Barnes and Mr Hanger, observed that Ms Berejiklian's office seemed to be particularly interested in the ACTA proposal. According to Mr Barnes, that degree of attention was atypical.
11.575. … As discussed, the bureaucracy both in the Office of Sport and Treasury did not support the ACTA proposal. From the outset, the ACTA proposal was perceived by the departmental officers who prepared the ERC submission as being a 'flimsy case for funding', while Treasury did not support it because it did not benefit the state as a whole and the business case did not comply with its guidelines…
