Gladys Berejiklian’s legal team is not happy the start of her evidence to a corruption inquiry has been delayed by 24 hours.
Sophie Callan, a barrister representing the former NSW premier, has become increasingly combative as the Independent Commission Against Corruption investigation entered its second week of testimony.
Ms Berejiklian was due to front the ICAC probe into her on Thursday, but this has been delayed to Friday due to ‘investigative reasons’.
Ms Callan said she is seeking procedural fairness regarding the inquiry into whether or not Ms Berejiklian complied with a legal duty to report suspected corruption to the watchdog.
The former premier was in a secret relationship with disgraced Liberal MP Daryl Maguire between 2015 and 2018.
Former NSW premier Gladys Berejiklian’s (pictured on Wednesday morning) evidence to ICAC has been delayed by a day due to ‘investigative reasons’
Section 11 of the ICAC Act states that a NSW government minister and other public officials have a duty to report any matter the person suspects on reasonable grounds concerns or may concern corrupt conduct.
Ms Callan said Ms Berejiklian’s lawyers wrote to the ICAC asking for further information about this but had received a ‘wholly unsatisfactory’ response.
She said Ms Berejiklian was ‘entitled to know what it is that is alleged in respect of section 11’.
In reply, ICAC counsel Scott Robertson said ‘these proceedings are not a trial’ and the correspondence contained a ‘fundamental misapprehension’ about ICAC’s role, which is that it was seeking to find the truth and was not a prosecutorial body.
Sophie Callan, SC (pictured) is representing Gladys Berejiklian at the ICAC
Ms Callan added that the watchdog had received evidence from ‘seven men’ to date about whether Ms Berejiklian was in a position of conflict in light of her secret relationship with Mr Maguire.
She indicated Ms Berejiklian’s team would argue this evidence could not ‘rationally bear’ on ICAC Assistant Commissioner Ruth McColl’s assessment as to whether a conflict of interest in fact existed.
Ms McColl, who is presiding over the inquiry, did not accept that ICAC needed to change the course its inquiry was taking.
The ICAC is, in part, investigating if Ms Berejiklian engaged in conduct ‘liable to allow or encourage the occurrence of corrupt conduct’ by former Liberal MP Daryl Maguire, with whom she was in a secret relationship at the time.
Gary Barnes, secretary of the Department of Regional NSW, is continuing his evidence at the ICAC on Wednesday, having previously given testimony last Friday.
He is giving evidence about a $5.5 million grant from the NSW government in 2016/2017 to the Australian Clay Target Association (ACTA), a gun club in Mr Maguire’s electorate of Wagga Wagga.
He agreed he was told that Mr Maguire ‘had the ear’ of then premier Ms Berejiklian.
Mr Barnes told the inquiry that he believed a staff member in the office of then deputy premier John Barilaro told him in 2017 that Mr Maguire was ‘well-regarded by the premier as a person that understood the bush as a Liberal Party person and that he had the ear of the premier’.
ICAC witness list
Wednesday 27 October – Gary Barnes, secretary of the Department of Regional NSW
Thursday 28 – Daryl Maguire, former Liberal MP
Friday 29 – Gladys Berejiklian, former premier of NSW
Monday 1 November – Gladys Berejiklian (if evidence not finished on Friday)
The ACTA grant was conditionally approved in December 2016 by the NSW government’s expenditure review committee (ERC), which was chaired by the then treasurer, Ms Berejiklian.
A month later she became premier, following the resignation of Mike Baird.
ACTA’s grant depended on having a satisfactory business case made as the initial business case submitted to cabinet was not strong enough.
The inquiry heard that the NSW government paid external consultants to update the business case.
An invoice tendered into evidence recorded that the government spent $26,950 on the new business case.
Mr Barnes agreed that Ms Berejiklian and Mr Barilaro’s offices asked for regular updates about gun club project, and that this was unusual. He understood there was strong interest in the project.
Asked by Mr Robertson about the progress of the grant process, Mr Barnes said it was ‘Not my job to make any of the backbenchers happy’.
‘We would not want to keep someone happy,’ he added, unless things were done the right way.
Mr Barnes told the ICAC that the plan to upgrade the ACTA gun club was approved by government without a competitive process.
There was a ‘two-step process’ for funding projects from a government system called Restart NSW. The first step included a call for applications and a competitive process.
‘This was one of a few projects that was happening outside of that competitive process,’ Mr Barnes said.
In the second stage, projects seeking funding had to demonstrate a benefit to cost (BCR) ratio of at least one.
Exceptions were made for projects such as funding for education and health infrastructure.
Department of Regional NSW secretary Gary Barnes (right) arrives at the Independent Commission Against Corruption hearing in Sydney, Wednesday, October 27, 2021
Funding for the Australian Clay Target Association depended on having a BCR of at least one.
Mr Barnes was also asked about a proposal for the state government to give funding millions of dollars to the Riverina Conservatorium of Music (RCM) in Wagga Wagga.
This second ‘case study’ at the centre of the ICAC’s inquiry was another project the then local MP Mr Maguire strongly advocated for.
Mr Barnes told Mr Robertson he believed there was an unsolicited proposal by 2017 for RCM to get a grant to relocate from a Charles Sturt University campus to a government-owned site.
The proposal included the construction of a ‘very lavish’ recital hall, he believed.
‘I didn’t think that gifting a government building … was a wise course of action,’ Mr Barnes said.
‘I did indicate that having access to a performance space would be something that I think was worth looking at down the track, but pretty much the two components, which were a world-class performance hall and creating commercial places or spaces, shouldn’t be something that government should focus on, at least initially,’ Mr Barnes said.
An email tendered into evidence at the ICAC inquiry into former NSW premier Gladys Berejiklian, showing that a funding application was requested not to go through a ‘two step process’
‘I didn’t think that that would be in the public interest,’ it would be ‘creating revenue stream for a third party,’ Mr Barnes said.
‘As I’d previously stated, it would have been wonderful to have a facility like that … (but) our view was it would be very difficult for that to, if you like, stack up.’
The conservatorium was a private not-for-profit body, not a government body.
Though the unsolicited proposal was rejected, the state government granted $10 million to the RCM to relocate to the site.
Mr Barnes told the ICAC that a media release about the RCM from Mr Maguire in February 2018 claiming it had ‘secured a permanent new home’ was ‘inaccurate’.
Gladys Berejiklian arrives at her Willoughby office in Sydney’s north shore on Wednesday morning
The press statement from Mr Maguire said ‘the building will be redeveloped to house a world class music recital space’.
Mr Barnes said this statement was a case of ‘A backbencher that seemed to have overreached’.
‘Public servants don’t have the gift of what goes into the media, that’s a matter for the political class,’ he said.
At the time of Mr Maguire’s media release, Mr Barnes had recommended to Ms Berejiklian that the government look into options to relocate the conservatorium from its existing site at Charles Sturt University.
A government-owned site in Wagga Wagga had been suggested as a candidate for the new conservatorium, but a final decision about the relocation had not been made.
Mr Robertson asked if Mr Maguire’s media release put pressure on the public service to deliver what was promised in the statement.
Scott Robertson, SC, arrives at the ICAC inquiry in Sydney
Mr Barnes replied that it ‘possibly put more pressure on government than public service’.
Mr Robertson asked Mr Barnes was asked when he first became aware of the relationship between Mr Berejiklian and Mr Maguire.
He said he had found out about it a year ago after the premier spoke about it in a previous ICAC inquiry.
Asked if it would have changed how he approached his work on projects backed by Mr Maguire, he replied that ‘From a public service perspective it would have meant I would have immediately had to discuss whether there were issues’.
Ms Callan questioned Mr Barnes about when, as according to his earlier evidence, he had inferred the premier had an interest in the ACTA project. ‘After there had been several requests for updates on the proposal,’ he replied.
Ms Callan put it to Mr Barnes that he had never spoken directly to the premier about whether she had an interest in the project. ‘No, I did not,’ he replied.
He said he ‘had formed the opinion that the premier had high regard for Mr Maguire’ and that for ‘other proposals we rarely got asked to update … at the same frequency that (the ACTA) one had’.
Mr Barnes said thought Mr Maguire may have been hassling Ms Berejiklian or her office about the proposal, in which he had a strong interest.
He said Mr Maguire was a ‘particularly pesky backbencher who was continually following up and demanding information’.
Mr Robertson said on Tuesday that evidence from Mr Maguire was being delayed by a day.
‘I don’t intend to call Mr Maguire tomorrow’ due to ‘investigative reasons,’ Mr Robertson said. This pushed Mr Maguire’s evidence to Thursday and Ms Berejiklian’s to Friday with the likelihood she will have to return on Monday.
Tuesday’s ICAC proceedings started a half hour later than stated, probably due to legal discussions on what exactly ‘investigative reasons’ means.
On Monday, Ms Berejiklian’s former deputy premier John Barilaro said she should have disclosed her relationship with Mr Maguire, whom he referred to as a ‘pain in the a**e’.
Ms Callan, sought to turn the tables on Mr Barilaro, asking if he had disclosed relationships of his own.
Mr Barilaro said he ‘would have’ disclosed any relationships, including family links.
‘What about any other intimate personal relationships?’ Ms Callan asked.
‘That’s a hard question because my relationships are with my family,’ Mr Barilaro said
Daily Mail Australia is not suggesting Mr Barilaro has done anything improper in his personal or professional lives.
Former NSW deputy premier John Barilaro gave evidence to the Independent Commission Against Corruption in Sydney
On Tuesday, ICAC heard from three former advisers to Ms Berejiklian.
Neil Harley, a former chief of staff, said he spoke with Ms Berejiklian about her relationship with Mr Maguire after she was summonsed to give evidence at a different ICAC investigation last year.
‘It was a very difficult conversation for both of us,’ he said, adding that the former premier is ‘inherently a very private person’.
‘We didn’t go into detail about when (the relationship with Mr Maguire) … commenced and when it finished,’ he said. ‘We talked in broad terms about the nature of the relationship.’
Another former chief of staff to Ms Berejiklian later told the ICAC that on Friday 13 July 2018 the then premier called her and told her ‘she’d been close in the past with Mr Maguire’.
Sarah Cruickshank said she thought the call was unusual as Mr Berejiklian was on leave at the time.
It was the day it was revealed that Mr Maguire was a person of interest to ICAC.
Former NSW premier Gladys Berejiklian (pictured on Wednesday morning) is expected to give evidence to ICAC on Friday
Brad Burden, a former director of strategy to then-premier Ms Berejiklian, was asked if he would have done anything differently about a funding proposal favoured by Mr Maguire if he had known about his relationship with the former premier.
He said the thought ‘advice would have been sought around any potential conflicts of interest and how to manage them’.
Both Mr Burden and Mr Harley were adamant that Ms Berejiklain always behaved in a ‘principled fashion’ and was a ‘stickler’ for the rules.
She never treated Mr Maguire or his electorate any differently, they agreed under cross examination from Ms Callan. ‘Categorically no,’ Mr Harley said.
‘I cannot recall a single occasion when Ms Berejiklian raised with me either Mr Maguire or the Wagga Wagga electorate. Not a single occasion.’
Of the three senior former staffers who gave evidence on Tuesday, Ms Cruikshank was the only one who knew the pair had been in a relationship before October last year.
ICAC is investigating whether Ms Berejiklian
1. Engaged in conduct between 2012 and 2018 that was ‘liable to allow or encourage the occurrence of corrupt conduct’ by former Liberal MP Daryl Maguire, with whom she was in a close personal relationship between 2015 and 2018
2. Exercised her official functions dishonestly or partially by refusing to exercise her duty to report any reasonable suspicions about Mr Maguire to the ICAC
3. Exercised any of her official functions partially in connection with two multimillion-dollar grants in Mr Maguire’s electorate, to the Australian Clay Target Association Inc and the Riverina Conservatorium of Music
ICAC counsel Scott Robertson asked if she was ‘quite clear’ in her mind that it was a historical relationship before Ms Berejiklian became premier?
‘Quite clear,’ she replied.
‘My recollection was she was telling me from the point of view that she was concerned as people might have seen her out with Mr Maguire,’ Ms Cruikshank said.
‘She said it was before she became premier and she said that a couple of times to me.’
Ms Cruikshank added: ‘I didn’t get the impression it was a full-blown intense relationship.’
Ms McColl asked Ms Cruickshank to expand on her evidence about when Ms Berejiklian told her she had been in a relationship with Mr Maguire.
Ms Cruickshank agreed she believed Ms Berejiklian was being honest with her when she said in a phone call on July 13, 2018 that she had been in a ‘historical’ relationship or friendship with Mr Maguire but it had ended before she became premier in January 2017.
The ICAC subsequently heard that relationship started in 2015 and in continued until 2018. The pair remained in contact until 2020, the inquiry has heard.
‘She’d lied to you?’ Ms McColl said.
Ms Cruickshank said that was for the inquiry to decide.
She agreed she was ‘surprised’ when ICAC heard the relationship had not ended before Ms Berejiklian became premier.
One of Ms Berejiklian’s lawyers, Sophie Callan, SC, pressed Ms Cruickshank about whether it was simply her ‘impression’ that the relationship was historical, and not something Ms Berejiklian said to her.
Ms Cruickshank denied that was the case. ‘She was categorically clear with me; it was before she was premier,’ she said.
As she thought the relationship had ended some time ago, Ms Cruikshank said she and Ms Berejiklian did not discuss whether it needed to be disclosed given the controversy surrounding Mr Maguire.
Gladys’s confidant and former chief of staff Neil Harley
‘I had no reason to suggest that she needed to do declarations,’ she said.
Mr Harley told the commission he subsequently discovered the relationship had ‘continued on for a lot longer than I had anticipated’ and ‘it was more recent’ than he thought.
He said if he had previously known about the relationship, he and others ‘might have provided advice to her about how that situation could appropriately be managed’.
The ICAC also heard that in an email from August 20, 2018, Mr Harley said Ms Berejiklian wanted to ‘push’ a plan to award millions in funding for a recital hall in the Riverina Conservatorium of Music in Wagga Wagga.
Mr Maguire had quit politics the previous month after giving evidence at an earlier ICAC inquiry, resulting in a by-election.
The commission has heard the recital hall was one of the projects Mr Maguire had pushed hard for in the pursuit of funding.
Mr Harley said in the email to colleagues in Ms Berejiklian’s office that ‘I personally don’t want to push this project but the premier did’.
Gladys Berejiklian’s former secret boyfriend Daryl Maguire was called ‘a pain in the arse … (like) a dog with a bone,’ in evidence given by former deputy premier John Barilaro to ICAC on Monday
Mr Harley added: ‘I have never, ever, in my time in politics, known a person more fiercely committed to public service, and serving the people of the state than Ms Berejiklian.’
That’s despite Mr Harley – who worked for the premier from 2017 and was her chief of staff from February 2020 until her resignation – admitting he had not supported one of the grants at the focus of the investigation, $20.5 million in funding for the Riverina Conservatorium of Music.
Sarah Cruickshank, a former chief of staff to Gladys Berejiklian, arrives at ICAC on Tuesday
It was ‘a longstanding wishlist item’ for Mr Maguire, but the promise was made during the 2018 Wagga Wagga by-election after his resignation.
‘NSW was deep in drought at this stage, and I felt that providing what was a substantial amount of money to the Conservatory of Music would not be well regarded by the community,’ Mr Harley told the ICAC.
He said he couldn’t remember how he knew the premier wanted the funding, only that at some point they had ‘the briefest of conversations’ about it.
However, Mr Harley said the project – ultimately ruled out after recent business case assessments – was not without merit.
‘My concern at the time was not about the nature of the project, it was about the nature of the announcement in the context,’ he said.
‘It’s important to note that after the by-election was lost and the new member for Wagga Wagga was elected, he himself made representations and has in fact met with me in my role as chief of staff, advocating for it.’
Ms Berejiklian denies any wrongdoing.
Gladys Berejiklian (pictured right) is under investigation by ICAC for her conduct while NSW premier in relation to her former boyfriend, ex-MP Daryl Maguire (pictured left)
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