Former New South Wales Premier Gladys Berejiklian questioned how the ICAC could determine she engaged in “serious corrupt conduct” and not refer her to criminal proceedings, a court has heard.
Berejiklian is launching a legal challenge to the ICAC’s findings that she breached the ministerial code by failing to disclose her relationship with her former partner and former MP Daryl Maguire.
Lawyers representing Ms Berejiklian appeared at the Court of Appeal on Monday in a bid to overturn a finding that she engaged in “serious corrupt conduct”.
The ICAC findings relate to the approval of two multi-million pound grants (to the Australian Clay Target Association and the Riverina Conservatorium of Music) in Mr Maguire’s former Wagga Wagga electorate.
Ms Berejiklian faces a two-day hearing before the Court of Appeal, where she will be represented by leading barrister Bret Walker SC.
Former New South Wales Premier Gladys Berejiklian (pictured) did not reveal her relationship with her ex-partner and former MP Daryl Maguire.
Despite the adverse findings against her, the ICAC did not recommend that Ms Berejiklian be referred for criminal proceedings.
The Commission accepted counsel’s submissions that the obstacles preventing Ms Berejiklian from being prosecuted for misconduct in public office were “formidable”.
Walker said the fact that Berejiklian was not referred to the Crown Prosecution Service should cast doubt on the findings.
“This raises questions that need to be answered as to the internal consistency of the reasons and conclusions of this part of the report,” Mr Walker said.
“In our view, if there is insufficient confidence that that has been demonstrated… then it is very difficult to see… that our client knowingly and deliberately participated in these dishonest and selfish violations.”
She also argues that there was no evidence that she was influenced by her relationship with Maguire and that it did not constitute a conflict of interest.
Judge Andrew Bell, one of three judges hearing the case, said it was “more than just a friendship.”
However, Mr. Walker argued: “Along the spectrum of personal relationships, at one end there would be a happy marriage and at the other a joyous acquaintance; there is no case law that says there comes a point at which you have to disclose that”.
“There is no record of friendships.”
The ICAC findings relate to Gladys Berejiklian’s approval of two multi-million pound grants in Daryl Maguire’s former Wagga Wagga electorate (pictured) (pictured together)
The ICAC found Ms Berejiklian, between 2016 and 2017, engaged in “serious corrupt conduct” in her transactions involving the Australian Clay Target Association.
The agency determined that he had a conflict of interest that “could objectively have the potential to influence the performance of his public duty.”
However, Walker told the court that Berejiklian did not necessarily take into account her private relationship with Maguire when making funding decisions.
“You don’t take something into account just because it’s true,” Walker said Monday.
‘Who are your parents, who are your siblings, who do you drink with on a Friday or who do you sleep with. They are issues that exist and, objectively, it is simply incorrect… to consider them – by reason of their existence – as issues that are taken into account in daily decision making.’
The former prime minister also questions the validity of the report claiming that the ICAC was acting beyond its authority under the ICAC Act.
Berejiklian maintains the report was invalid because former judge Ruth McColl’s term had expired before she delivered the report.
McColl, a former Court of Appeal judge, oversaw the hearing, but her term as ICAC deputy commissioner expired in October 2022.
She delivered her report, as a consultant, in June last year.
Berejiklian argues that because McColl was not a commissioner at the time, it was not a valid report.
“Ms. McColl’s services are required to finalize the Operation Keppel report, including participation in the review and editing process of that report,” Walker told the court on Monday.
“We say… that the credibility findings recorded in the report are really issues that Ms. McColl was unable to achieve and that the commission would not otherwise be able to adopt.”
He also maintained that “the entire report was delivered in excess of jurisdiction.”
Barrister Stephen J. Free SC, representing the Independent Commission Against Corruption, said there could be no doubt that the report was written by the commission and not Ms McColl.
He maintained that the report noted that McColl supervised the public hearings.
“But that is entirely consistent with the fact that the report is a commission report, not Ms McColl’s,” Mr Free said.
“She was a key person who helped the commission, first as a deputy commissioner and then as a consultant.”
Former New South Wales treasurer and opposition health spokesman Matt Kean issued a statement on Monday saying that while he was not pre-empting the Court of Appeal’s findings, he was concerned it would be questioned whether the ICAC had exceeded its powers.
Former New South Wales Premier Gladys Berejiklian is launching a legal challenge to the ICAC’s findings that she breached the ministerial code.
“We have a body that is given extraordinary powers behind closed doors, and the only element we can really see ends up in court to examine whether the body was operating within the law,” Mr Kean said.
“I won’t prejudge the outcome, but just with that challenge, if it’s successful, what confidence can we have in the other 95 percent of the process that we can’t see?”
The ICAC found that Mr Maguire had improperly used his public position during his tenure as an MP to promote his own financial interests and those of his associates, without deliberately disclosing his position or potential pecuniary benefits.
“Let us not forget that during his time representing the people of Wagga and the region he worked tirelessly for his constituents,” Maguire said in a statement at the time.
“In fact, he was clearly described as a dog with a bone, a vociferous electorate advocate or a pain in the ass when it came to achieving improvements for the Wagga electorate.”
The hearing before Chief Justice Bell and Justices Julie Ward and Anthony Meagher continues Tuesday.