Corrupt but not a criminal: ICAC ruling on Gladys Berejiklian may prompt lawsuit

Gladys ­Berejiklian weighs an extraordinary legal challenge to corruption findings levelled by the state’s anti-corruption watchdog.

Former NSW Premier Gladys Berejiklian on Thursday. Picture: NCA NewsWire / Monique Harmer

Former NSW premier Gladys ­Berejiklian is weighing an extraordinary legal challenge to corruption findings levelled by the state’s anti-corruption watchdog, after it ruled she repeatedly breached public trust and concealed the ­activities of former MP Daryl ­Maguire, with whom she had been in an undisclosed relationship for years.

Any form of appeal is likely to be led by barrister Bret Walker SC, with Ms Berejiklian issuing a statement in the wake of the report’s release saying its two volumes were “currently being examined by my legal team”.

Those closest to her have told The Australian in recent days that her intention was to appeal any corrupt finding.

Ending 18 months of uncertainty over the outcome of the ­investigation, the Independent Commission Against Corruption filed its long-awaited report on Thursday, its volumes replete with findings severe enough to damage Ms Berejiklian’s corporate and political aspirations.

Optus, where Ms Berejiklian took an executive role in 2022, ­responded in cool fashion to the findings, saying it acknowledged the report and had “no further comment to make”.

ICAC stopped short of recommending criminal charges be pursued against Ms Berejiklian, despite multiple conclusions that she behaved corruptly and partially exercised her functions as a minister, and as premier, during a lengthy career in public office.

Mr Maguire, the former Wagga Wagga MP, faces a starkly different fate. The corrupt findings against him were regarded as ­severe enough for ICAC to seek advice on whether criminal ­charges should be sought. Efforts to contact him for a response were unsuccessful.

Should he be charged, Mr ­Maguire will potentially find an opportunity to put forward a case defending himself, said a supporter of Ms Berejiklian, who added that the former premier would not receive the same benefit without taking legal action.

In responding to the report, Ms Berejiklian thanked members of the public and said: “At all times I have worked my hardest in the public interest. Nothing in this ­report demonstrates otherwise.”

Across more than 700 pages, ICAC repeatedly found Ms Berejiklian had worked against the public interest by failing to disclose her relationship with Mr Maguire while pushing multimillion-dollar projects on his behalf or concealing his suspicious conduct.

Liberal politicians lined up in Ms Berejiklian’s defence and criticised ICAC for the time it took to publish its report, given 18 months that had elapsed since the former premier was first revealed as a ­target of its investigation.

Gladys Berejiklian with Daryl Maguire.

Addressing this in a statement, ICAC said the delays were caused by failures to promptly report Mr Maguire’s suspected corrupt conduct, resulting in an investigation that had to be developed through lengthy coercive hearings and other strategies.

NSW Premier Chris Minns was among those who lined up to take a swipe at ICAC over alleged sluggishness. “Firstly, this report has taken way too long,” he said.

“The second point here is that nothing in this report takes away, I don’t think, from premier Berejiklian’s handling of the Covid emergency which I still regard as being excellent.”

ICAC’s investigation remained focused on four aspects of Ms ­Berejiklian’s conduct: the non­disclosure of her relationship with Mr Maguire; two multimillion-dollar funding grants to projects in his electorate; and her apparent failure to report reasonable suspicions of his corrupt conduct to ICAC, as required.

Ms Berejiklian’s legal team was given ample opportunity to respond to ICAC and its preliminary findings, meaning Ms Berejiklian is likely to have known for months that she could be found to have acted corruptly. At almost every turn of the report, her submissions arguing against that finding were rejected, with the commission often ruling that her recollection, or explanations, were unreliable or “implausible”.

Among the more pressing tasks for ICAC was establishing that Ms Berejiklian and Maguire were in a relationship that warranted disclosure under the NSW Ministerial Code of Conduct, something the former premier has steadfastly denied since their union was first exposed.

Ms Berejiklian denied the need to disclose the relationship, often saying it wasn’t of “sufficient status” because she and Mr Maguire didn’t share finances and did not live together, among other reasons. ICAC pointed to her own admissions as proof otherwise, saying she loved Mr Maguire and had discussed plans to marry and have a child.

Hundreds of text messages over a five-year period were also trawled so ICAC could be independently assured of the nature of the relationship. In some, they referred to Ms Berejiklian’s Sydney residence as “home”, with Mr Maguire given a key for access – a fact the former premier denied to parliament in 2020, calling this “factually inaccurate”.

Ms Berejiklian during her ICAC grilling. Picture: Supplied

As ICAC noted: “In April 2018, they were contemplating that Mr Maguire would retire from politics at the 2019 election, and that they would then make their relationship public, possibly get married and go on holidays ­together.”

Among the few dialogues Between Ms Berejiklian and Mr Maguire made public, one striking occasion included a discussion in which Mr Maguire said: “I am the boss, even when you’re the Premier.”

While Ms Berejiklian agreed with Mr Maguire at the time, her legal team later submitted to ICAC that she was “appeasing an insecure man to make him feel better about himself” and did not “reflect her sincere sentiments”.

Few global findings were made about the former premier’s evidence, but occasionally ICAC called her “supercilious”, “unworldly” and “an unsatisfactory witness in many respects” owing to her use of the witness box “as more like a husting than a place from which to respond directly to a question”.

But it was Ms Berejiklian’s steadfast advocacy for obscure projects desired by Mr Maguire and located in his electorate that led ICAC to find her conduct breached the threshold of corruption, a conclusion only possible because of her refusal to disclose the relationship.

One project, a $5.5m grant provided to the Australian Clay Target Association, was considered and approved by the government’s expenditure review committee at Ms Berejiklian’s behest when she was treasurer. A separate project saw a $20m funding allocation for the Riverina Conservatorium of Music amplified by the premier within government and successful in the same way.

ICAC found that in approving the funding for the conservatorium, Ms Berejiklian “consciously preferred Mr Maguire” whom she knew was its principal proponent.

“Ms Berejiklian knew that decision was wrong, as demonstrated not only by the fact she concealed her relationship at the time, but also by the fact that she approved the funding reservation without any support from either the relevant departmental officers or her own staff,” it said.

Another damning conclusion drawn by investigators was that Ms Berejiklian consciously declined to press Mr Maguire on his deal-making with property developers. They found that she refused to do so out of an “appreciation that he may have been engaged in corrupt conduct, and she was thus acting with wilful blindness”.

The evidence used in support of this finding was Ms Berejiklian’s infamous taped phone call with Maguire, in which he discussed a development being staged around Badgerys Creek that, with his involvement, would clear a debt of $1.5m. “I don’t need to know about that bit,” Ms Berejiklian said.

As the ICAC noted: “Even if Ms Berejiklian did not suspect Mr Maguire at that stage of being engaged in corrupt conduct, at the very least she must have realised she was exposed to the risk of a conflict of interest in participating in decisions concerning the Badgerys Creek development.”

ICAC said it considered the possibility of bringing a charge of misconduct in public office against Ms Berejiklian over the ACTA funding matter.

But doing so would have been futile, it said, because it would have required proof that Ms Berejiklian had pushed for the funding to “maintain or advance” her relationship with Mr Maguire, or that she or Mr Maguire received a personal advantage.