The NSW corruption watchdog acted outside its powers in issuing a report that made serious corrupt conduct findings against Gladys Berejiklian, her barrister has told an appeal court.
Berejiklian, who resigned as premier in October 2021 amid an Independent Commission Against Corruption probe into funding decisions she made while in a secret relationship with a government MP, is seeking an order quashing the findings or declaring them a nullity.
Former NSW premier Gladys Berejiklian outside the ICAC in October 2021.Credit: Renee Nowytarger
In a report released on June 29 last year, the ICAC found 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 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.
Daryl Maguire arriving at the ICAC in 2020.Credit: Rhett Wyman
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”.
Free said the commission took the benefit of McColl’s assessment of Berejiklian’s credibility in making its findings, but it also considered the evidence as a whole.
The second strand of Berejiklian’s challenge seizes on specific ICAC findings. Under the NSW ministerial code of conduct, ministers must act only in what they consider to be the public interest and must not act improperly for their own private benefit. The corruption watchdog found Berejiklian breached this clause of the code.
Walker said this clause “doesn’t mean that you must not have … personal attachments” and “ministers are not members of enclosed religious orders”.
“The notion that you would set up aged [care] facilities because you’ve got an aged grandfather is too absurd for words, but the notion that you can’t decide to do it because you have an aged grandfather ... is silly,” he said. “It doesn’t require disclosure; [it’s] nonsense.”
However, Free said “the commission wasn’t concerned about attachment ... per se”, and the ICAC found “that the existence of that attachment was influential to Ms Berejiklian”. The watchdog assessed all of the circumstances, including that the funding decisions were “atypical in the way they were processed”, he said.
Walker referred to other parts of the ministerial code referring to private benefits, including a clause prohibiting ministers from soliciting or accepting a private benefit. He said the meaning of “private benefit” in that context “could only in the most unlikely and tortured way extend to personal attachments”.
“I know there’s a colloquial language about friends with benefits, but it’s colloquial because … it’s a joke. It’s not the benefit [referred to in that part of the code],” he said.
Chief Justice Andrew Bell asked: “Is your submission that that must be pecuniary?”
“No … but it won’t include hoping to take somebody on a date, not that anything like that has anything to do with our case,” Walker said.
He said that “who your parents are, who your siblings are, who you drink with on a Friday, or who you go to bed with” were “matters which exist”, but it was “simply wrong factually … to regard them as, by reason of their existence, matters that you are taking into account in your daily decision-making”.
Taking into account the views of a local member on government spending did not amount to “anything improper” or a “personal attachment being taken into account ... any more than would be the case if the local member were the person who had sponsored you into parliamentary politics”, Walker said.
The hearing continues on Tuesday.