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Chris Merritt
Legal Affairs Contributor
7 July, 2023
Fate of Gladys Berejiklian shows ministers are now at the mercy of ICAC’s opinions

The fate of Gladys Berejiklian contains some worrying implications for every minister of the NSW government. They are now more vulnerable to adverse findings by the state’s anti-corruption commission.

The Independent Commission Against Corruption has just reinterpreted part of the ministerial code of conduct in a way that injects a degree of uncertainty into the rules governing conflicts of interest.

And for that we can thank former Liberal premier Mike Baird who made a serious mistake when he drew up this code in 2014.
Unless that mistake is remedied, and the code is reformed, Berejiklian might not be the last minister to be declared seriously corrupt due to rules that give too much discretion to the anti-corruption watchdog.

The core of last week’s adverse ruling against Berejiklian rests on the meaning of the term “private interests” – which was left undefined by Baird when he gave responsibility for enforcing that code to the Independent Commission Against Corruption.

Most of its rules on conflicts of interest are clear. But that is not the case when it says that a conflict can arise between a minister’s public duty and “private interests”.

What exactly could that cover? It cannot be a reference to financial benefits because that is covered by another provision.

It cannot be a reference to decisions aimed at enhancing the popular standing of a person or party because that is subject to an explicit carve-out from the conflict rules.

By leaving “private interests” undefined, Baird left a gap that has now been filled by ICAC in order to help the commission reach an adverse finding about Berejiklian.

ICAC’s definition for the term “private interests” might be praised by the commission’s staff for its flexibility.

But others – particularly ministers who need to adhere to this new rule – are more likely to see vagueness.

ICAC’s report shows that its definition of private interests turns on nothing more rigorous than something the commission refers to as the “appearance test”.

This focuses on the question – to be answered by ICAC – of whether a private interest, such as Berejiklian’s relationship with her former boyfriend, looks to a reasonable person to be the sort of thing that could influence a ministerial decision.

That means ministers need to make their own assessment of what ICAC believes that a reasonable person would believe is a relationship that needs to be disclosed in order to manage a conflict of interest. If they get this wrong, then it’s off to ICAC.

The risk to NSW ministers from this approach was encapsulated in Berejiklian’s submissions, which were prepared by Bret Walker SC and Sophie Callan SC.

Those submissions, which are summarised in ICAC’s report, are clearly influenced by the risk that the new test could open the way for the commission to impose its own subjective assessments of ministerial conduct.

This seems to be is in line with the concerns of Gary Sturgess, who helped design ICAC when he worked for former premier Nick Greiner in the 1980s.

Sturgess told Sky News that including the ministerial code of conduct as part of ICAC’s jurisdiction could lead to the organisation “making up standards after the event and I think that is unfortunate and wrong”.

The submissions drafted by Walker and Callan are more persuasive than the commission’s long, legalistic justification for its “appearance test”. The former premier had argued, without success, that the conflict of interest provision in the ministerial code should not be construed by ICAC so as to make the outcome turn upon “the possibly individualistic opinions of an administrator whose conclusions are not subject to appeal on the merits”.

This is not the only episode of “creativity” in ICAC’s report.

Berejiklian was accused of breaching a provision of the code that deals with the way in which conflicts of interest by ministers are dealt with, but not conflicts by premiers.

That, however, did not prevent the commission from reinterpreting the plain words of the code in order to bring this former premier within the reach of a provision that was clearly designed for other purposes.

Berejiklian made the point during the hearing that reinterpreting this provision in the way proposed by ICAC would lead to verbal nonsense.

It would mean the provision would effectively be referring to premiers knowingly concealing something from themselves, or speaking to themselves and giving themselves written approval to participate in a decision.

But ICAC was undaunted.

The commission’s report first refers to how judges in the past had resolved differences between statutory provisions by “adjusting” the meaning of provisions.

It then simply asserts that in this case “the adjustment and reconciliation processes” had to be undertaken.

And just like that, the scope of this code was expanded in a way that, according to ICAC, is in line with the legislative purpose of the ICAC Act.

Soon after this report was made public, a consensus began to emerge that reform was needed to eliminate the delay that afflicted this ruling. But that is not enough.

The ministerial code needs to be redrafted in order to replace the vague “appearance test” with a clearly defined standard that can be understood in advance – not just by lawyers, but by ministers who need to adhere to the rules.

As well as conflicts of interest, the code covers of range of matters that, if proved, would amount to nothing more serious than political misdemeanours.

They should be described in ICAC’s rulings as what they are: breaches of the ministerial code of conduct, not serious corruption.