There are several problems with ICAC’s ruling that Gladys Berejiklian is seriously corrupt. The first is that it debases the English language.
Berejiklian might be many things but for ICAC assistant commissioner Ruth McColl to describe her as seriously corrupt undermines the commission’s credibility. Nobody will take this seriously, nor should they.
The former NSW premier gained no pecuniary benefit from the events outlined in McColl’s two-volume report. Berejiklian did not pocket taxpayers’ money, nor did she steer taxpayers’ money into the pockets of her former boyfriend, Daryl Maguire.
Yet she has been treated by ICAC with less respect than that accorded to a convicted criminal.
After humiliating her at one of this commission’s show trials, ICAC left her dangling for 20 months as it assembled a report that found her conduct was not sufficiently serious to refer to the Director of Public Prosecutions.
The commission is now run by chief commissioner John Hatzistergos, who took office long after the decision to unleash ICAC’s coercive power on Berejiklian
He was not responsible for this inquiry, but he does need to consider whether it was a worthwhile use of public resources.
Was it worth depriving NSW of that rare commodity, a trusted leader, in the midst of a global pandemic?
Was this commission justified in requiring Berejiklian to repeat in public answers to deeply personal questions that had been asked and answered at an earlier private hearing?
The strongest part of the commission’s case against Berejiklian is the argument that she failed to inform ICAC about Maguire when, in ICAC’s view, she should have suspected him of involvement in financial misconduct.
If proven in a court of law, that would be a breach of section 11 of the ICAC Act and McColl devotes significant space to the legal arguments about what that provision requires.
Yet even if ICAC is right on the law, consider the practical reality: the commission was already on to Maguire. It did not need a tip off.
Other accusations against the former premier are best described as political offences.
She stands accused of breaching the ministerial code of conduct by failing to declare a conflict of interest in matters concerning Maguire’s electorate.
She also stands accused of failing to discharge her official functions in an impartial manner when dealing with grant applications for Maguire’s electorate.
The ministerial code is a political document. It was madness for the NSW parliament, under former premier Mike Baird, to give ICAC authority to deal with these issues. It means ICAC, an agency of the executive, is responsible for holding the executive to account for breaches of the code. On this issue, parliament has lost the power to police itself.
Because the code was drawn up by politicians to deal with the conduct of politicians, it should come as no surprise it has a provision that seems designed to protect members of parliament who secure benefits for their electorates.
This is directly relevant to Berejiklian because the commission found that she exercised her official functions “partially” – or with a lack of impartiality – in connection with funding promised to a group in Maguire’s electorate.
And this, according to ICAC, was “influenced by the existence of her close personal relationship with Mr Maguire”.
But consider this: clause six of the code says ministers must not act improperly for their private benefit or for the private benefit of any other person. That seems directly relevant to the events outlined in this report.
So was Berejiklian providing a private benefit for Maguire when she dealt with funding that had been promised to a group in his electorate?
This is an issue that might eventually be considered by a court if the former premier chooses to lodge an appeal on the ground that the commission made an error of law.
The ministerial code contains a carve-out that seems designed to reassure members of parliament that despite what ICAC might say about pork-barrelling, it is legitimate to secure benefits for their electorate. That carve-out is at the end of the ministerial code and is tucked away in the definitions.
It says a private benefit – which is the trigger for a breach of clause six – does not arise if it consists merely of “the hope or expectation that the manner in which a particular matter is dealt with will enhance a person’s or party’s popular standing”.
Berejiklian did not divert taxpayers’ money to Maguire.
So if all she was doing was seeking to enhance his electoral standing by directing grants to his electorate, that does not amount to a private benefit. And that means she complied with the section of the ministerial code that seems intended to deal with exactly this set of circumstances.