Berejiklian’s cautionary tale for Canberra

The former premier’s treatment at the hands of her state’s ICAC was appalling — and should be a big red flag for a federal show trial apparatus.

Former NSW Premier Gladys Berejiklian arrives at ICAC in Sydney. Picture: NCA Newswire / Gaye Gerard

You only need look at the cautionary tale of Gladys Berejiklian to see why we should be worried about the design and implementation of a federal anti-corruption commission. Perhaps if the former NSW premier had belonged to the ALP, Greens or teals, it would have dampened their enthusiasm for a federal show trial apparatus.

The treatment of Berejiklian at the hands of her state’s Independent Commission Against Corruption was appalling, even by the standards of this blunderbuss of a crime-fighting body that has knocked out three Liberal premiers for less than a hill of beans.

On the upside, ICAC eventually exposed a couple of instances of high-grade Labor corruption leading to the imprisonment of former ministers Eddie Obeid and Ian Macdonald.

If Berejiklian is exonerated – as she should be when the finding is delivered in the next few weeks – it will confirm the nation’s best pandemic premier was brought down not because of her misconduct but because of the kangaroo court practices of a runaway institution. Her political career will have been destroyed not by a prosecution but by a process – the process is punishment, whether you are guilty or innocent.

Illustration by Johannes Leak

Yet it will be an even more significant travesty if the Berejiklian finding goes the other way. If ICAC finds against the former premier it will be an unjust outcome that will create a watershed moment in our politics, imposing a new and unrealistic threshold on issues of politics, conflicts of interest and disclosure.

The NSW body failed the moment it decided to hold a public hearing into the Berejiklian matter, exposing a sitting premier to an unfair, quasi-judicial public humiliation. This was the step that made her position untenable, regardless of the substance or otherwise of ICAC’s suspicions.

The commissioners who decided on this course of action – Peter Hall, Patricia McDonald and Stephen Rushton – recused themselves from conducting the hearing because of the potential for the appearance of a conflict of interest, given their public arguments with the government over ICAC funding. Yet these same people had already taken the most critical and damning decision to hold the public hearings – the decision that prompted Berejiklian’s resignation.

“My resignation as premier could not happen at a worse time,” Berejiklian said when she quit in October last year while she was attempting to lead her state (and, effectively, the nation) out of the pandemic. “But the timing is completely outside of my control, as the ICAC has chosen to take this action during the most challenging weeks of the most challenging times in the history of NSW – that is the ICAC’s prerogative.”

The central charge against Bere­jiklian is that she was “involved in a breach of public trust” and a “conflict between her public duties and her private interest” because she was involved in funding decisions for an electorate when she was in an undisclosed “personal relationship” with the local member.

If the former premier is found to have erred on these grounds it will change our political practices forever and inevitably lead to the substantial removal of decision-making powers from elected representatives. This will diminish electoral accountability and shunt more power into the hands of unelected bureaucrats. Governance and voters will be the poorer for it.

At the heart of this case is whether an on-again, off-again romantic relationship between Bere­jiklian and one of her backbenchers, the Liberal MP for Wagga Wagga, Daryl Maguire, should have been disclosed.

This was a relationship so fraught or tenuous that Berejiklian had not revealed it to her parents or friends.

Maguire seems to have been a political grifter, and it was investigations into his shonky dealings that led investigators to stumble upon his relationship with Bere­jiklian. Yet from the evidence revealed, it seems Berejiklian’s only sin was to have a close personal relationship with someone who was not worthy of her (you get the sense this was the underlying reason the relationship was not made public, but I speculate).

The public status of people’s romantic interests (especially when one partner was exiting a marriage, as Maguire had) is always a matter of personal choice for myriad reasons. This must have been especially so for a relatively shy public figure – if we can allow that contradiction – such as Berejiklian.

The critical point in this matter is that their romantic dealings were not the important part of their relationship when it came to political accountability. The aspect of their relationship that mattered was the fact he was part of her government, and any decision the premier and her cabinet made about Maguire’s electorate would stand to benefit the Coalition government. And all that was public; all that was known.

That is precisely the stuff on which voters deliver accountability, not just in Wagga Wagga but across all other electorates. Voters routinely reward governments for funding desirable projects in key electorates, and they routinely punish governments they believe are cynically allocating funds for the wrong projects in the wrong places for partisan political gain. The is the essence of democratic accountability; the fundamental political aspects of any Wagga Wagga funding decisions were open and available for fair and transparent political judgment.

Think about the implications of the alternative view, that personal relations drove political decisions. Any premier worth their salt will have meaningful relationships with every member of their parliamentary team; some will be lifelong allies and confidants, others will be factional enemies, some might be old lovers, others might be close personal friends, and there will be highly transactional relationships that deliver crucial party-room support.

At what point are these liaisons considered to be a “personal relationship” for the purposes of declaration during cabinet considerations or, god forbid, for an anti-corruption commission finding?

Is the threshold a factional reliance, wider family links, deepness of friendship away from politics, regularity of contact, or the existence of romantic or sexual relations? And if romantic relations are the key, what is the status of an occasional dalliance, a past affair, an unrequited love or an ongoing tryst? It is nonsense. Aside from pecuniary interests, which must always be declared, the relevant relationship for accountability and the avoidance of corruption is the political affiliation – which is publicly known.

(The other allegation against Berejiklian is that she might have known about Maguire’s suspect dealings and failed to report them. That is a different and clearly serious matter, but the evidence is very thin.)

If the propositions of the NSW ICAC are upheld on the matter of Berejiklian’s “personal relationship” status, then perhaps we should see an expansion of the declarations of pecuniary interests that politicians make.

Under this newfangled and unenforceable morality, every member of every parliament would have to provide a full list of the other parliamentarians, advisers, public servants, businesspeople and journalists with whom they have had romantic interludes during the past decade or so, and include a current status report on those relationships.

What a shameful thing it was that Berejiklian was forced to have all this aired about her, as some sort of sordid ICAC reality TV show, secretly taped phone calls and all. Where were the feminists and the dogged defenders of human rights?

Was Berejiklian on the wrong side of politics for them? Many activists seemed to be much more agitated about a far less personally intrusive investigation into Julia Gillard’s pre-politics career.

Indeed, many members of the Albanese government railed against the royal commission inquiry into how Gillard’s pre-politics legal career ended because of dealings with a union slush fund run by her then partner. Those politicians had some reasonable points to make at the time and therefore should now be wary about the design of a federal body.

If the Canberra model emulates the NSW ICAC – and on the bill before parliament that could depend very much on the subjective decisions of the commissioners – every prime minister, of every gender and from every party, can expect some sort of a once-over. There will be even less incentive for good people to take up a political vocation.

Unquestionably, we need to stamp out corruption. But we need to take great care that people’s rights to natural justice and procedural fairness are not taken away in favour of show trials and trials by media.

We must never forget that we elect politicians to make political decisions, not to hand over all decision-making to unelected bureaucrats who are not exposed to the same level of public accountability. The ultimate arbiters on matters of pork-barrelling and priorities are the voters.

Red tape and green tape already unnecessarily stifle and delay government decision-making and private investment. If we continue to add “beige tape” – additional processes to insulate decisions from the personal judgment of politicians – we will make our democracy less responsive while we calcify our economy.