The former New South Wales premier Gladys Berejiklian has lost her legal challenge against an anti-corruption watchdog finding that she engaged in “serious corrupt conduct”.
Berejiklian had argued the finding by the Independent Commission Against Corruption (Icac) was invalid because the commissioner was no longer at Icac when the findings were handed down.
Berejiklian filed a summons for judicial review in the NSW court of appeal in September. A judicial review, unlike an appeal, is limited to legal missteps and cannot involve challenging the findings of fact.
The decision, handed down on Friday, was split two to one by the three judges presiding over the case.
The NSW chief justice, Andrew Bell, and justice Anthony Meagher rejected the judicial review on all grounds. They found it was valid and “effective” for the appointed commissioner – Ruth McColl – to hand down findings while she was no longer at the commission.
McColl, a former judge, was appointed an assistant commissioner of Icac to preside over the high-profile hearings but by 31 October 2022 – when her term was due to expire – she had not completed her report.
She was given an extension to work as a consultant from 1 November until she handed her report to the three-person commission in June 2023.
In a dissenting judgment, justice Julie Ward found McColl had made findings she did “not have the power to make”, and on those grounds, the judge would quash the finding of “serious corrupt conduct”.
Responding to Friday’s decision, Berejiklian thanked the court for its consideration given “the limited nature of a challenge that can be made to Icac findings by any citizen”.
“As the court noted, the Icac Act does not permit a ‘merits’ review of the findings of Icac,” she said.
“The decision of the NSW court of appeal was split 2-1. The dissenting judgment of the president of the court of appeal held that the report was beyond power and that the findings of Icac should be quashed.
“Serving the people of NSW was an honour and privilege which I never took for granted. I always worked my hardest to look after the welfare and interests of the people of NSW.”
Icac had initially been investigating former Wagga Wagga MP Daryl Maguire, who was also found to have engaged in serious corrupt conduct. Maguire was alleged to have used his position to conduct a business helping property developers.
After Berejiklian was heard on phone taps, she was called to give evidence at Icac and admitted she had been in a “close personal relationship” with Maguire for several years which she had not disclosed to colleagues or family.
Icac then investigated a number of grants she had been involved in approving for Wagga Wagga as well as her state of knowledge of Maguire’s business dealings. Berejiklian has maintained she served the public interest “at all times” while in office.
In February, Berejkilian’s barrister Bret Walker SC told the court that viewing Berejikilian and Maguire’s relationships as a “standing potential for impropriety” was a “black, depressing and utterly unrealistic view of human life”.
Icac’s 700-page report was handed down last August, nearly two years after the 2020 hearings.
The NSW opposition leader, Mark Speakman, said in a statement: “Today’s decision by the NSW court of appeal underscores the legal challenges in contesting Icac findings due to the Act’s limitations on ‘merits’ reviews. The standards required by law applies equally to everyone.”
