ICAC sets itself up as judge and executioner in hearing

The ICAC investigation into Gladys Berejiklian, a wholly unsatisfactory affair from the outset, has confirmed the view of many that the corruption body has been acting as an unaccountable law unto itself with little regard for proper process. By finding Ms Berejiklian to have indulged in corrupt conduct but recommending no charges be considered, ICAC has effectively made itself judge, jury and executioner. ICAC’s actions mean Ms Berejiklian has had her reputation forever tainted with no opportunity to clear her name in a process where the proper standards of evidence and proof are applied.

The tardy way in which ICAC has gone about its business, including public shaming through live broadcast hearings followed by an 18-month delay while it considered its findings, puts beyond doubt the need for reform. Ms Berejiklian becomes the third Liberal premier to have fallen victim to ICAC after Nick Greiner in 1992 and Barry O’Farrell in 2014. Mr Greiner lost his job even though he’d broken no law and was subsequently cleared in the Court of Appeal. Mr O’Farrell was forced to resign after it became apparent he had given incorrect evidence about a $3000 bottle of Grange Hermitage, but ICAC did not make adverse findings against him. Ms Berejiklian resigned after ICAC announced an inquiry into Liberal MP Daryl Maguire would be broadened to examine whether she had engaged in conduct that “constituted a breach of public trust” through her failure to disclose her relationship with Mr Maguire.

Given what has been revealed by ICAC, we in no way suggest Ms Berejiklian is without fault. It is clear her secret relationship with the disgraced Mr Maguire was unwise. At best she allowed herself to be wilfully blind to the behaviour of an untrustworthy partner and let her emotions rule her head. When making decisions to spend public money on schemes that could benefit her partner politically, the relationship should have been declared. But, as Chris Merritt reports, the potential benefits were political rather than financial or personal – a big distinction. ICAC found the secret relationship put Ms Berejiklian in a position of conflict between her public duty and her private interests, and said she had breached the public trust. ICAC concluded she failed to act on Mr Maguire’s conduct and must have known she needed to report it to ICAC. It said she did not do so in order to “protect herself and him from the commission exercising its investigative powers”. The commission called this behaviour a “grave misconduct” that “undermined the high standards of probity that are sought to be achieved by the ministerial code, which, as premier, Ms Berejiklian substantially administered”.

Her conduct was found to have not only been corrupt, but also to have breached the public trust after she sought to award a $5.5m government grant to the Australian Clay Target Association, in Mr Maguire’s electorate, without disclosing to colleagues her close, personal relationship with him. At the time, she was NSW treasurer. ICAC also found she “partially exercised her official functions” in relation to her decision-making over a $10m grant to the Riverina Conservatorium of Music, also located in Mr Maguire’s electorate, and which “she knew was advanced by Maguire”. In hindsight, it is difficult to argue Ms Berejiklian’s relationship was not a material fact that should have been made known. But neither should it be forgotten that spending decisions for community organisations are a bread-and-butter issue for politicians. The rule must be that voters have the ultimate power to throw out politicians who do not spend wisely or argue forcefully enough for spending on their behalf.

There is no doubt the ICAC findings are a bitter end to political life for a woman who enjoyed a high level of public support. Unlike other premiers, notably Labor leaders in Victoria, Queensland and Western Australia, Ms Berejiklian was able to strike a balance in favour of liberty when dealing with Covid-19. Her treatment at the hands of ICAC deserves close inspection. This includes more rigorous demands that investigations be brought quickly to conclusion. As things stand, the use of public hearings and show trials by ICAC ensures the process often can be the punishment. This perception is only furthered by ICAC’s decision to declare Ms Berejiklian to be corrupt but not call for any action on the part of the Director of Public Prosecutions.