Gladys Berejkilian’s barrister in her case against New South Wales anti-corruption watchdog findings has argued that viewing a relationship as a “standing potential for impropriety” is a “black, depressing and utterly unrealistic view of human life”.
The former premier is arguing in the NSW court of appeal that findings against her by the Independent Commission Against Corruption (Icac) of serious corrupt conduct were invalid because the assistant commissioner in charge of the probe was no longer at the commission when they were finalised.
Berejiklian did not appear in court on Monday for the first day of the two-day judicial review of the Icac findings that she engaged in serious corrupt conduct when an MP.
The former premier’s legal team focused in large part on the role of former judge Ruth McColl who was appointed an assistant commissioner of Icac to preside over the high-profile hearings.
McColl was yet to complete the report at the end of October 2022 when her term was due to expire. She was given an extension to work as a consultant until she handed her report to the three-person commission in June 2023.
Berejiklian’s barrister Bret Walker SC told the court on Monday that findings were invalid because McColl’s role as assistant commissioner was over when the report was completed.
“The whole of the report was delivered in excess of jurisdiction,” he said. “The designated decision maker really must be the decision maker.”
Representing Icac, Stephen Free SC said McColl had been brought on as an assistant commissioner to run the inquiry but she was “never delegated the function of making a report”.
He said McColl provided a draft report to the commission in February 2023 before she met with members of the commission about their “concerns, suggestions and recommendations” from the draft.
“The final version of the report was issued by the chief commissioner on behalf of the commission,” he said.
“[That] reflects the chief commissioner being fully satisfied that the contents of the report reflect the findings that he’s making.”
Icac had initially been looking into 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.
On Monday, Walker argued that ministers would always have personal attachments but those relationships did not automatically equate to corruption.
“The notion that having an attachment is itself a standing potential for impropriety can only be regarded as a black, depressing and utterly unrealistic view of human life,” he said.
He said politicians who had elderly family members could make policy decisions that impacted elderly people because “having attachments” was not corrupt in and of itself.
He said the notion that the “ministry has to be composed of people without attachments” was “nonsense”.
Walker also argued that there was no evidence that Berejiklian wanting to maintain or progress her relationship with Maguire had played a role in her decision-making relating to matters impacting his electorate.
“There’s a difference between being disappointed with a decision somebody you love has made and saying, ‘I’m not going to be your special friend if you don’t make the decision this way’,” he said.
“There’s no evidence of any of that at all.”
He also argued against Icac’s finding that the then premier had breached her duty by failing to tell the public the Wagga Wagga MP was her boyfriend, insisting that something could not be a conflict of interest if “simply” disclosing it would remove that conflict.
Free argued there were reasons to believe that the former premier had been influenced by her relationship in decisions.
“The commission places weight on the fact that there was a history between Mr McGuire and Ms Berejiklian of Mr McGuire pushing Ms Berejiklian to assist him in getting what he wanted and her doing so, influenced by the interpersonal dynamics, so wanting to appease him,” Free told the court.
Last year, Icac found the former premier’s failure to declare a personal conflict of interest in relation to funding for the Australian Clay Target Association (Acta) and the Riverina Conservatorium of Music was a breach of public trust.
Additionally, Icac found Berejiklian engaged in corrupt conduct by failing to report suspicions that Maguire had engaged in corrupt conduct.
The hearing continues.
