Gladys Berejiklian defends her leadership after losing ICAC court challenge

Former NSW premier Gladys Berejiklian has defended her conduct as leader after she lost her court bid to overturn damning findings made against her by the state’s corruption watchdog.

In a decision on Friday, a 2-1 majority of the NSW Court of Appeal dismissed her application for judicial review of the Independent Commission Against Corruption’s findings.

Former NSW premier Gladys Berejiklian outside her home in Sydney on Friday before the judgment was handed down.Credit: Rhett Wyman

Berejiklian resigned as premier in October 2021 amid an ICAC probe into funding decisions she made while in a secret relationship with a government MP. She sought an order quashing the ICAC’s findings, released in June last year, or a declaration that they were a nullity.

In a statement released on Friday, the former premier thanked the court for considering the case and noted the “limited nature of a challenge that can be made to ICAC findings by any citizen”.

“The decision of the NSW Court of Appeal was split 2-1,” she said. “The dissenting judgment of the President of the Court of Appeal held that the report was beyond power and that the findings of ICAC should be quashed.

“Serving the people of NSW was an honour and privilege which I never took for granted. I always worked my hardest to look after the welfare and interests of the people of NSW.”

The ICAC found that Berejiklian engaged in serious corrupt conduct between 2016 and 2018 by participating in decisions to make multimillion-dollar government grants to two projects in the then-Wagga Wagga Liberal MP Daryl Maguire’s electorate, without disclosing the pair were in a close personal relationship.

At the time, Berejiklian was treasurer and later premier. The ICAC found the relationship between the pair continued until September 2020.

Bret Walker, SC, acting for Berejiklian, told the NSW Court of Appeal in February that the assistant commissioner who presided over the inquiry, former Court of Appeal judge Ruth McColl, acted beyond her authority in preparing the report because her term of office expired on October 31, 2022.

While McColl was engaged as a consultant from November 1, Walker argued consultants did not have the legal power to prepare or make a report. It meant “the whole of the report was delivered in excess of jurisdiction” and was a nullity, he said.

But Stephen Free, SC, acting for the ICAC, said that although McColl had a “primary drafting role”, the “final version of the report is issued by the chief commissioner on behalf of the commission”.

The second strand of Berejiklian’s challenge seized on specific ICAC findings.

Bret Walker SC outside the NSW Court of Appeal during the Berejiklian hearing.Credit: Steven Siewert

The court challenge was heard by Chief Justice Andrew Bell, Court of Appeal President Julie Ward and Justice Anthony Meagher.

Bell and Meagher rejected each of Berejiklian’s 13 grounds of review. The court dismissed the application for judicial review with costs.

In joint reasons, Bell and Meagher said the appointment of McColl as a consultant was “valid and effective” and the ICAC “did not act beyond its authority or power in obtaining services, information or advice from Ms McColl” that were used in the final report.

Ward would have upheld Berejiklian’s challenge on that ground.

Bell and Meagher said in their joint reasons that it was open to the ICAC to find on the evidence before it that Berejiklian “understood or believed that by supporting these two [funding] proposals she would please Mr Maguire ... and thereby strengthen or secure their underlying relationship”.

They said it was also open to the commission to find the pair “discussed matters being supported or proposed by Mr Maguire”, that he would press Berejiklian for a particular outcome, and that she gave instructions as treasurer or premier “which had the consequence or effect of giving that matter some immediate preference or priority”. Ward agreed.