Berejiklian was right to resign, but her conduct was not criminal

When Gladys Berejiklian resigned in October 2021, I thought it was a massive overreaction to the announcement that she had become a subject within an ICAC inquiry. The resignation was dramatic; she not only resigned as premier, but from parliament altogether – and all within 60 minutes of the announcement of the inquiry.

After all, in similar circumstances, Neville Wran had simply stood aside temporarily as premier and Nick Greiner remained in his office. Both were ultimately vindicated; Wran came back and went on to win another election.

Gladys Berejiklian resigns as premier in October 1, 2021.Credit: Dominic Lorrimer

We now know Berejiklian was right to resign; she probably recognised that she was vulnerable to adverse findings.

The findings contained in the ICAC’s report into Operation Keppel are very detailed and very damning. The most serious findings are against Daryl Maguire, and his misconduct has been referred to the Director of Public Prosecutions. Being criminal matters, I will leave Maguire and his troubles alone.

No doubt the finding of serious corrupt conduct adverse to Berejiklian will generate the most interest, even though it was neither the focus of the ICAC’s inquiry nor the most serious matter investigated. Much of the public and private commentary will most likely be generated by pre-existing party political prejudices, but ignore that and look at the commission’s reasons instead.

The report is long and detailed; factual findings are carefully underpinned by references to the factual and documentary evidence. It is a careful report, expressed in moderate terms, justified by the evidence, and supported by the law.

The ICAC’s report took too long to produce, but it is careful and detailed.Credit: James Brickwood

I know from experience that the ICAC only ever makes findings of corrupt conduct where the matters are serious, and the evidence is clear; the person under consideration is always given the benefit of any doubt.

At the time this all blew up there was a lot of discussion about whether the decision to widen the scope of the inquiry to examine Berejiklian’s conduct was warranted, and a concurrent concern was, given some of the matters were personal in nature, whether the inquiry should be conducted in private. Judgments of that kind were completely misplaced, just wrong.

The ICAC came into knowledge of Berejiklian’s involvement almost by accident: taps on Maguire’s phone were granted to collect information on his suspect dealings with third parties – I imagine the investigators at the commission were surprised when the premier came on the line. But once the content of those conversations became known, the commission has no choice but to act – Berejiklian’s urging that she did not wish to know more about Maguire’s activities at Badgerys Creek was gut-wrenching. This was the premier of NSW; it did not matter that Berejiklian was powerful or popular, a wider investigation had to proceed.

And that partly explains why the inquiry had to be conducted in public. This was a matter of real importance, travelling to the top of public administration in NSW. Ask yourself – did you want to know? I did. Look now at the public interest and discussion generated by the report: this is further proof that the public had a right to know the allegations and the evidence which surrounded them.

By the way, as a member of the public, I watched the questioning of Berejiklian. It was necessary to raise the relationship with Maguire; it lay at the centre of the conflict of interest. The questioning was conducted politely and sensitively; there was nothing prurient.

Some will remain confused as to why, if Berejiklian’s conduct warranted a finding of serious corrupt conduct, that there was no referral of her conduct to the DPP. This simply reflects the difference between the statutory definition of corrupt conduct and specific criminal acts. The statutory definition of corrupt conduct embraces a wide range of conduct which might not be criminal – failure to reveal conflicts of interest is one; pork-barrelling is another. On the ICAC’s findings, Berejiklian’s conduct fell well short of a proper discharge of her public duties, but it was not criminal.

Finally, I need to say something about the appalling delay in the production of the report. The report is long, careful and detailed, but while that might explain some of the delay, it does not excuse it. The ICAC obviously needs to do that which is necessary to fix this and prevent its recurrence. There is a new team in charge of the commission, headed by John Hatzistergos. I have confidence he will resharpen its tools.

Geoffrey Watson SC is a director at the Centre for Public Integrity.

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