Former NSW premier Gladys Berejiklian has questioned how ICAC could find that she engaged in ‘serious corrupt conduct’ and not refer her for criminal prosecution, a court has heard.
Ms Berejiklian is mounting a legal challenge to ICAC’s findings that she breached the ministerial code by failing to disclose her relationship with her former partner and fellow ex-MP Daryl Maguire.
Lawyers acting for Ms Berejiklian on Monday appeared before the Court of Appeal in an attempt to quash the finding that she engaged in ‘serious corrupt conduct’.
ICAC’s findings relate to the approval of two multimillion dollar grants – to the Australian Clay Target Association and to the Riverina Conservatorium of Music – in Mr Maguire’s former electorate of Wagga Wagga.
Ms Berejiklian is facing a two-day hearing before the Court of Appeal where she is being represented by high-profile barrister Bret Walker SC.
Former NSW Premier Gladys Berejiklian (pictured) failed to disclose her relationship with her former partner and fellow ex-MP Daryl Maguire
Despite the adverse findings against her, ICAC did not recommend Ms Berejiklian be referred for criminal prosecution.
The Commission accepted the submissions of counsel assisting that the obstacles blocking Ms Berejiklian from being prosecuted for misconduct in public office were ‘formidable’.
Mr Walker said that the fact Ms Berejiklian was not referred to the DPP should lead to questions about the findings.
‘That gives rise to questions to be answered as to the internal consistency of the reasons and conclusion in this part of the report,’ Mr Walker said.
‘In our submission, if there is insufficient confidence of that being made out … then it’s very difficult to see … that our client had deliberately, consciously engaged in these dishonest, self-interested breaches.’
She also argues there was no evidence that she was influenced by her relationship with Mr Maguire and that it did not amount to a conflict of interest.
Justice Andrew Bell – one of three judges hearing the case – noted it was ‘more than mere friendship.’
However, Mr Walker argued: ‘Along the spectrum of personal relations, upon one end there would be happy marriage and the other end would be cheerful acquaintance, there is no jurisprudence which says there comes a point at which you have to disclose that.
‘There is no register of friendships.’
ICAC’s findings relate to Gladys Berejiklian’s approval of two multimillion dollar grants in Daryl Maguire’s (pictured) former electorate of Wagga Wagga (pictured together)
ICAC found that Ms Berejiklian, between 2016 and 2017 engaged in ‘serious corrupt conduct’ in her dealings relating to the Australian Clay Target Association.
The body found that she had a conflict of interest which ‘could objectively have the potential to influence the performance of her public duty’.
However Mr Walker told the court Ms Berejiklian did not necessarily take her private relationship with Mr Maguire into account when making funding decisions.
‘You don’t take something into account just because it is true,’ Mr Walker said on Monday.
‘Who your parents are, who your siblings are, who you drink with on a Friday or who you go to bed with. They are matters which exist and it’s simply wrong factually… to regard them – by reason of their existence – as matters which you are taking into account in your daily decision making.’
The former premier is also challenging the validity of the report on grounds that ICAC was acting beyond its authority under the ICAC Act.
Ms Berejiklian argues that the report was invalid because the term of former judge Ruth McColl had expired before she delivered the report.
Ms McColl, a former Court of Appeal judge, oversaw the hearing however her term as an ICAC assistant commissioner expired in October 2022.
She delivered her report, as a consultant, in June last year.
Ms Berejiklian argues because Ms McColl was not a commissioner at the time, it was not a valid report.
‘Ms McColl’s services are required for the purposes of her finalising the Operation Keppel report, including participating in the review and editing process of that report,’ Mr Walker told the court on Monday.
‘We say … the credibility conclusions recorded in the report, that they are truly matters which Ms McColl was not able to accomplish and the commission otherwise could not adopt.’
He further argued that the ‘whole of the report was delivered in excess of jurisdiction’.
Barrister Stephen J Free SC, acting for the Independent Commission Against Corruption, said there could be no doubt that the report was authored by the commission and not Ms McColl.
He argued that the report noted Ms McColl oversaw the public hearings.
‘But that is entirely consistent with the report being a report of the commission, not of Ms McColl,’ Mr Free said.
‘She was a key person providing assistance to the commission, firstly in her capacity as an assistant commissioner and later in her capacity as a consultant.’
Former NSW treasurer and opposition health spokesperson Matt Kean on Monday issued a statement in which he said while he wasn’t preempting the Court of Appeal’s findings, he was worried it was being questioned whether ICAC had exceeded its powers.
Former NSW Premier Gladys Berejiklian is mounting a legal challenge to ICAC’s findings that she breached the ministerial code
‘We have a body that is given extraordinary powers behind closed doors – and the one element we actually get to see ends up in court to examine if the body was operating within the law,’ Mr Kean said.
‘I won’t pre-judge the outcome but on that challenge alone, if it’s successful, what confidence can we have in the other 95 per cent of the process we can’t see.’
Mr Maguire was found by ICAC to have improperly used his public office during his time as a MP in order to promote his own financial interests, and those of his associates while deliberately not disclosing his position, and potential pecuniary benefits.
‘Let it not be forgotten that during his time representing the people of Wagga and region he worked tirelessly for his constituents,’ Mr Maguire said in a statement at the time.
‘Indeed, he was described in evidence as a dog with a bone, a vociferous advocate for the electorate, or a pain in the arse when it came to getting improvements for the Wagga electorate.’
The hearing before Chief Justice Bell and Justices Julie Ward and Anthony Meagher continues on Tuesday.
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