In technical terms, NSW ICAC is madness

Chris Merritt                 26 November 2021

Published in the Australian Newspaper

Scott Morrison has clearly been paying attention. The show trial in Sydney starring Gladys Berejiklian is indeed shameful – not because the former NSW premier is a saint but because ICAC has overplayed its hand.

This anti-corruption agency had the goods on Berejiklian long before it decided to humiliate her with a public hearing into the ­nature of her relationship with former boyfriend/former Wagga Wagga MP Daryl ­Maguire.

That hearing was a taxpayer-funded indulgence.

ICAC had already coerced information from Berejiklian at a secret compulsory examination, had secretly recorded her phone calls, had seized cabinet documents and had coerced information from public officials.

Before one word was uttered at the public hearing, this over-mighty band of lawyers knew that the former premier had failed to declare a close personal relationship with Maguire in breach of the ministerial code of conduct when making decisions that benefited his electorate.

It could have produced a report to that effect months ago.

Instead, it decided that taxpayers should pay for a hearing in which Berejiklian and others were asked questions that had already been answered at a secret hearing or added little to what the commission already knew.

And this from a commission that claims to be so distressed by its financial constraints that it is still seeking a new funding system that would exempt it from the normal budgetary process.

It is, after all, only taxpayers’ money.

There is one more reason why the Prime Minister is right to steer clear of an ICAC-style commission. One of the main justifi­cations for its show trials is that they help educate the community about corruption – an assertion that simply skips over the in­convenient fact that these hearing are supposed to be part of an ­investigation.

By definition, nobody is corrupt while under investigation.

The question of corruption is supposed to be determined later.

So if the goal really is to educate the public about corruption – as opposed to running a show trial – that can happen only on the basis of a finding, not at a mere hearing.

If that is not enough to confuse the community, consider this: ­Berejiklian is before ICAC not because she stands accused of providing an unlawful pecuniary benefit for herself or Maguire – she is there because the NSW ­parliament decided years ago to twist the meaning of the word “corruption” so a substantial breach of the ministerial code is, for the purposes of the ICAC Act, corruption.

This, to use a technical term, is madness.

If Berejiklian is found corrupt, it will mean that a substantial breach of the code – without any allegation of financial wrong­doing – can generate exactly the same finding that was handed to Eddie Obeid.

Berejiklian was wrong about not disclosing her relationship with Maguire.

That is a breach of a political document – the ministerial code – and should have resulted in a political penalty … not an elaborate show trial at taxpayers’ expense.