Five key reasons why Berejiklian thought the ICAC should back off

Rarely has a corruption finding in NSW led to an upswell of bipartisan support for the target of the investigation, but so it was in the case of former premier Gladys Berejiklian.

The former Liberal leader had been in a relationship with “a bum”, was federal Opposition Leader Peter Dutton’s blunt assessment of corrupt former Wagga Wagga Liberal MP Daryl Maguire.

Former NSW premier Gladys Berejiklian outside her home earlier this month.Credit: James Brickwood

The state’s shadow attorney-general Alister Henskens suggested Berejiklian was no Eddie Obeid, in a nod to the jailed former Labor powerbroker who has become a byword for corruption in NSW. And Labor Premier Chris Minns praised Berejiklian’s “excellent” handling of the COVID-19 pandemic.

The comments evince pub test logic a world away from the technical legal submissions made by Berejiklian and her high-powered legal team, including Sydney silks Bret Walker and Sophie Callan, who argued forcefully that corruption findings could not be made against the former premier.

The Independent Commission Against Corruption found Berejiklian had engaged in serious corrupt conduct for failing to report her suspicions about Maguire to the watchdog and for participating in decisions to make multimillion-dollar government grants to two projects in Maguire’s electorate between 2016 and 2018.

Berejiklian, who was treasurer and later premier, did not disclose her years-long relationship with Maguire during this time.

These are the key arguments the watchdog rejected in making its findings.

1. Code of conduct did not apply to premier

One prong of Berejiklian’s pre-emptive strike against the ICAC’s potential findings was a submission that key parts of the ministerial code of conduct did not apply to her as premier. This would have narrowed the range of corruption findings that could be made against her.

Berejiklian submitted that conflict of interest provisions in the code could not apply to the premier because they were phrased as prohibiting a minister from knowingly concealing a conflict from the premier or taking certain steps without the written approval of the premier.

The watchdog rejected this analysis and said it would be “a mockery” if the code did not apply to the premier, who is a minister and the state’s most senior public official. She was required to disclose conflicts to the cabinet, it said.

2. No financial benefit

Berejiklian also argued she could not have engaged in a substantial breach of the code of conduct, which might trigger a corruption finding, when neither Maguire nor anyone else associated with her received a financial benefit as a result of government grants to projects in Maguire’s electorate.

The ICAC said this did not “diminish the substantiality of her breaches of the ministerial code” and she had “deliberately failed” to disclose her relationship with him.

3. No conflict of interest

Berejiklian also submitted there was no conflict of interest to disclose. The ICAC heard she did tell cabinet about a range of other relationships when she was a minister and later premier, including disclosing in 2017 that two of her cousins were employed in the NSW public service.

Berejiklian argued Maguire was in a similar position to any other MP who could bend her ear on Macquarie Street about projects in their electorate.

The watchdog disagreed and said Maguire’s “level of access ... by reason of their close personal relationship put him in a special category”.

4. Chief of staff may have ‘misunderstood’

Berejiklian sought to avert a finding that she lied in a July 2018 phone call to her then-chief of staff, Sarah Cruickshank, by suggesting her secret relationship with Maguire ended before she became premier in January 2017. The ICAC found the relationship continued until September 2020.

Sarah Cruickshank, former chief of staff to Gladys Berejiklian. Credit: Kate Geraghty

Among Berejiklian’s submissions to the watchdog was a suggestion that memory is fallible and “Ms Cruickshank’s impression may easily have been attributable to a misunderstanding”, noting that Cruickshank took the call while at dinner with friends and after having “a few wines”, the ICAC said.

Berejiklian gave evidence she did not recall telling Cruickshank the relationship was historical only, although she described her former chief of staff as “someone of enormous integrity”.

The watchdog rejected Berejiklian’s submissions and found the former premier lied to Cruickshank about the “nature, length and intimacy” of her relationship with Maguire.

The ICAC said Berejiklian also lied in August 2020 to a second chief of staff, Neil Harley, and suggested to him that the relationship was historical.

5. A ‘stickler’ for the rules

Berejiklian insisted she did not fail to discharge her legal duty to report to the ICAC any matter she suspected on reasonable grounds “concerns or may concern corrupt conduct”.

As part of that submission, she said she was “a ‘stickler’ who cared a lot about probity, and as premier she simply would not have remained in a relationship with someone she suspected of corruption”.

The commission disagreed. It pointed to Maguire’s reference in tapped phone calls in September 2017 to a land deal at Badgerys Creek that would allow him to “pay off my debts” of $1.5 million.

Berejiklian said in one call in which Maguire referred to the deal: “That’s good … I don’t need to know about that bit.”

The ICAC said “these conversations involving Mr Maguire’s likely lucrative land deal at Badgerys Creek took place in the context of the intense government activity in that area” and it raised questions about whether Maguire was misusing his office for financial gain.

“It is apparent that by 7 September 2017, Ms Berejiklian thought better of being fixed with any more knowledge of the ‘deal’ because, contrary to her assertion, she did suspect he was capable of doing something untoward,” the commission concluded.

Not ‘serious’ corrupt conduct

Under changes to the ICAC Act in 2015 aimed at preventing the watchdog making damaging public findings in low-level cases, the commission cannot make a corruption finding in a report unless the conduct is “serious”. Berejiklian did not accept her conduct met the definition of corruption at all, which meant she opposed a serious corrupt conduct finding by extension.

The ICAC did not agree and cited an appeal judgment in former NSW Liberal premier Nick Greiner’s successful bid to overturn a corruption finding against him: “It is important to have regard to the standard of conduct required of a premier and a minister.

“It is commonplace that more is expected of those to whom more is given.”

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