Written by the Centre's Chair Anthony Whealy QC and originally published in the Sydney Morning Herald on November 2 2021
The revelation last year that the former premier was in a close personal relationship with Daryl Maguire came as a shock to her colleagues and to the general public. In the immediate aftermath, Gladys Berejiklian, in a round of cleverly managed media events, was able to turn a possible political crisis into high-level support for a woman who had been wronged by a "dodgy" boyfriend.
However, it was inevitable, having regard to Maguire's manifest list of inappropriate dealings, that the Independent Commission Against Corruption would be obliged to scrutinise the relationship and her dealings with him. After all, she was the premier and indeed her relationship with Maguire spanned the years when she was treasurer and he was a parliamentary secretary. It had continued after he was forced to resign from Parliament.
It came as no real surprise when the ICAC announced it would hold a public hearing to investigate the issues relating to the former premier's relationship with Maguire. It became apparent that over many months the commission had been seeking a large number of documents, interviewing witnesses and holding private compulsory hearings, indeed one with the premier herself. Over the last fortnight, the commission has methodically and publicly laid out its areas of concern. First, did Berejiklian's failure to disclose her relationship with Maguire during the processing of the two Wagga grants constitute a substantial breach of the Code of Conduct? Second, did she conceal Maguire's corrupt activities, or act in a way that encouraged or allowed those activities? Third, did her behaviour constitute a breach of public trust?
On Friday and Monday the former premier, who is represented by two of Australia's leading barristers, was given the opportunity to state her position. In relation to the Code of Conduct, she fiercely maintained there was no conflict. Maguire's relationship with her was not of sufficient status to warrant disclosure. Moreover, her activities in relation to the grants provided no private benefit to Maguire or herself. She argued the grants were for the good of the Wagga community and that her decisions and actions were driven entirely by considerations of the public interest. Her relationship with Maguire played no part in those decisions. Any "fixing" that she did for Maguire was precisely what she would have done - and did - for other members of Parliament.
Against this background, counsel assisting probed and tested these assertions through a lengthy series of intercepts and other material, much of which has been extensively published and dissected in the media. In particular a serious issue arose in relation to the intercepts following Maguire's summons to appear before the commission in July 2018. Counsel tested whether Berejiklian failed in her duty to report the information she had gleaned from Maguire about his private dealings. She argued she would have reported information to the ICAC but did not believe she had any worthwhile material. She repeated that she believed Maguire when he claimed not to have been involved in wrongdoing.
Most if not all of Berejiklian's colleagues - ministers, bureaucrats, staffers - resolutely stated that she should have revealed the relationship with Maguire and should have recused herself from any part in the grants process. Berejiklian strongly disagreed. It was, she said, for her, and not for others, to decide whether there was a conflict, and she was perfectly satisfied that she was not in a position of conflict. She dismissed suggestions that proper process had not been followed and maintained that she trusted Maguire and, when he told her there was nothing inappropriate in his actions, she accepted this and was unaware of his extensive private dealings.
At the end of the investigation, probably many months hence, it will be a matter for ICAC to determine whether it accepts or rejects the propositions raised by Berejiklian and her team of lawyers. No doubt her own words or utterances, together with Maguire's chat throughout the lengthy intercepts, are likely to play an important part in the outcome.
There are however some significant points to be made even at this stage. The Ministerial Code of Conduct is a formidable document. Mike Baird, in conjunction with ICAC, introduced it in 2014 to usher in a new era of ministerial probity and integrity. At its heart is a necessity for ministers to avoid conflicts of interest, not only actual, but also the perception of conflicts of interest. A substantial breach of the code may constitute corrupt conduct within the meaning of the ICAC legislation. There is much at stake here.
What then do we expect of our ministers? In what situation will their undisclosed interests raise real questions of integrity and probity? Is it simply sufficient for a minister to say, "I don't think there's a conflict here, so I won't inform the premier"? What if I am the premier? Does the code even apply to me or am I in some way above it? Does it really matter and do we as a community have better things to do with our time than worry about abstract issues of integrity?
The answers to these questions are not without difficulty. However, I believe the community should care, and does care, about ministerial and parliamentary integrity. Generally, our trust in politicians is at a low ebb. We know that frequently decisions are made, and discretions exercised, involving millions of dollars of public money. Surely, it can never be right that decisions of this kind are made to please your mates, to reward your donors, or simply to defeat your opponents.
And by what standards does a minister determine for himself that he is not in a position of conflict when he must know that, were he to reveal a relationship, his senior colleagues would insist he step aside from any significant decisions involving that person? We can be very poor judges in our own cause, and it may be that Berejiklian is no better than the rest of us in this regard.
It is difficult to understand why Berejiklian, shrewd and diligent as she is, apparently turned a blind eye to the inevitable perception of conflict in her continuing assistance to Maguire's electoral pursuits. Everybody else can see it. Why couldn't she?
It is a manifest breach of the Code of Conduct for a minister to knowingly conceal a potential conflict from the premier. Surely, it would have been a simple matter for Berejiklian to have a private discussion with then premier Baird and tell him of her relationship and take guidance and counsel as to whether she should take part in decisions affecting the Wagga electorate. It would have been such a simple step to take and would have avoided the controversy and perhaps made it unnecessary for the premier to resign.
These are serious questions, and they go to the heart of ministerial integrity and probity.
A final observation: despite the usual attacks being made on ICAC's role as a guardian of integrity, this has been a very well controlled public hearing. It has been moderate, cautious and careful. Both the Commissioner and Counsel Assisting have taken great care to avoid its becoming a trial by media. Indeed, it is not a trial at all. It is a continuing investigation with procedural fairness well on display.
The commission is to be commended for the respectful way it has conducted itself. Those who continue to criticise it are those who do not wish to see integrity sustained at the highest levels of government.
Anthony Whealy is a former NSW Supreme Court judge and former assistant commissioner of the ICAC. Read the original article here
