This was published 1 year ago
Gladys Berejiklian launches court bid to overturn ICAC finding
By Michaela Whitbourn and Sarah McPhee
Former NSW premier Gladys Berejiklian has launched a court bid to overturn the Independent Commission Against Corruption’s damning finding that she engaged in serious corrupt conduct.
The Court of Appeal challenge is listed for a first directions hearing in Sydney on October 9.
Former NSW premier Gladys Berejiklian outside her home in June.Credit: James Brickwood
In a report released on June 29, the ICAC found Berejiklian and her former partner, the former Wagga Wagga Liberal MP Daryl Maguire, had both engaged in serious corrupt conduct.
The ICAC may only make a corruption finding in a report if it considers the conduct in question is “serious corrupt conduct”.
The commission found Berejiklian breached public trust and partially exercised her official functions in 2016 and 2017, as treasurer and later premier, when the state government made a $5.5 million grant to the Australian Clay Target Association in Maguire’s electorate. She did not disclose her close personal relationship with Maguire at the time.
It also found Berejiklian breached public trust and partially exercised her official functions in 2018 in connection with $30 million promised to the Riverina Conservatorium of Music for a recital hall, also in Maguire’s electorate. Ultimately, $20 million of that money was not paid.
The ICAC found both of these cases amounted to serious corrupt conduct, but were not “so serious as to merit criminal punishment”, which is an element of the criminal offence of misconduct in public office.
The commission found Berejiklian also engaged in serious corrupt conduct by “refusing to discharge her duty” under section 11 of the ICAC Act to report her suspicions about Maguire to the corruption watchdog. It concluded Berejiklian had “dishonestly and partially” breached the ministerial code by failing to report Maguire to the ICAC.
It said it was satisfied on the balance of probabilities – a lower standard of proof than the criminal standard of beyond reasonable doubt – “that inferences can be drawn from the facts and circumstances to establish that Ms Berejiklian wilfully failed to comply with her s 11 duty”.
However, the ICAC said it accepted submissions by Berejiklian’s legal team that obstacles to a prosecution for the criminal offence of misconduct in public office “would be so formidable as to make it reasonably clear that any advice from the DPP ... would be to the effect that no prosecution would be commenced”.
A person seeking a review of the ICAC’s findings typically files their case in the NSW Supreme Court. However, the Court of Appeal, where Berejiklian has filed her case, hears some judicial review cases where a current or former judge made the decision under review. Former Court of Appeal judge Ruth McColl presided over the ICAC inquiry into Berejiklian and Maguire.
ICAC findings may only be challenged in court on limited grounds relating to legal error. If the court finds error, the court may declare a particular finding of the ICAC was “not made according to law and is a nullity”.
The court does not review the merits of the original finding, meaning it does not stand in the shoes of the ICAC and make its own finding on the facts.
A finding may be overturned by the court where the ICAC has made an error of law; its reasoning was not objectively reasonable; there is no evidence that could rationally support its finding; relevant matters were not taken into account or irrelevant matters were taken into account; or there was a denial of natural justice.
Responding to the development, former NSW treasurer and staunch Berejiklian supporter Matt Kean on Saturday stressed ICAC’s delay in delivering its Operation Keppel findings impacted “the welfare and reputation of those involved”.
“The ICAC inspector already found ICAC had a flawed process, and now we will find out if they stuffed up when it came to the law as well,” Kean said.
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