Former NSW premier Gladys Berejiklian leaves her home in Sydney on Thursday ahead of the release of the ICAC’s report.Credit:Louise Kennerley
Breach of public trust
The commission found Berejiklian breached public trust and partially exercised her official functions in 2016 and 2017,as treasurer and later premier,when the state government made a $5.5 million grant to the Australian Clay Target Association in Maguire’s electorate. She did not disclose her close personal relationship with Maguire at the time.
It also found Berejiklian breached public trust and partially exercised her official functions in 2018 in connection with $30 million promised to the Riverina Conservatorium of Music for a recital hall,also in Maguire’s electorate. Ultimately,$20 million of that money was not paid.
The ICAC found both of these cases amounted to serious corrupt conduct,but were not “so serious as to merit criminal punishment”,which is an element of the criminal offence of misconduct in public office.
Failure to notify ICAC
Crucially,the commission found Berejiklian also engaged in serious corrupt conduct by “refusing to discharge her duty” under section 11 of the ICAC Act to report her suspicions about Maguire to the corruption watchdog. It concluded Berejiklian had “dishonestly and partially” breached the ministerial code by failing to report Maguire to the ICAC.
“On the Commission’s findings,Ms Berejiklian formed an actual suspicion that Mr Maguire’s conduct concerned,or might have concerned,corrupt conduct. She deliberately refused to report that conduct to the Commission,” the ICAC said.
Former Liberal MP Daryl Maguire,who was a target of Operation Keppel.Credit:AAP
“Ms Berejiklian,in the exercise or performance of her official functions,acted improperly for her private benefit – namely,the benefit in maintaining or advancing her close personal relationship with Mr Maguire.”
It said it was satisfied on the balance of probabilities – a lower standard of proof than the criminal standard of beyond reasonable doubt – “that inferences can be drawn from the facts and circumstances to establish that Ms Berejiklian wilfully failed to comply with her s 11 duty”.
The criminal standard of proof
However,the ICAC said it accepted submissions by Berejiklian’s legal team that obstacles to a prosecution for the criminal offence of misconduct in public office “would be so formidable as to make it reasonably clear that any advice from the DPP ... would be to the effect that no prosecution would be commenced”.
While the commission was satisfied on the balance of probabilities that Berejiklian wilfully failed to comply with her duty to report her suspicions about Maguire to the ICAC,it said there was “insufficient admissible evidence ... for inferences to be drawn that would prove themens rea[criminal intent] of the offence of misconduct in public office to the required standard of beyond reasonable doubt in any criminal prosecution”.
For this reason,it declined to include a statement that consideration should be given to obtaining the advice of the DPP about any prosecution against Berejiklian.
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Berejiklian told the ICAC she had “no knowledge” of wrongdoing by Maguire and did not think she had any information that could have benefited the corruption watchdog.
‘In accordance with the law’
Geoffrey Watson,SC,who was counsel assisting high-profile ICAC inquiries including into members of the Obeid family,said “the finding adverse to Berejiklian is one in accordance with the statutory formulation of ‘corrupt conduct.’”
He said the definition of corrupt conduct included a wide range of conduct that was “undoubtedly reprehensible”,but did “not necessarily constitute a crime”.
“ICAC has made a decision in accordance with that[definition] that is not only correct on the facts,it’s in accordance with the law,” Watson said.
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