By Stephen Rice, originally published on October 16 in The Australian
Most legal observers believe NSW Premier Gladys Berejiklian is guilty of shocking judgment in her relationship with disgraced former Liberal MP Daryl Maguire — but not of any crime.
And on the evidence so far, it appears unlikely the ICAC inquiry would make serious findings against her.
The chairman of the Centre for Public Integrity, former NSW Supreme Court judge Anthony Whealy QC, said it was “pretty dumb” for Ms Berejiklian to continue her romance with Mr Maguire after he was forced from parliament in 2018 in the face of an earlier ICAC inquiry, but he argued she had done nothing dishonest.
“I think that was very imprudent of her politically”, he said, “but at the moment there is no suggestion in the inquiry that she has done anything that smacks of corruption.
“I don’t think there is anything she could be charged with at the moment, but in the end it will be up to ICAC to make up its mind about that. I can’t see they would be likely to do that, no.”
Mr Whealy believed there was nothing illegal about the business arrangements Mr Maguire was discussing with the Premier. “For example that he was acting in some capacity for a woman who wanted to sell land at Badgerys Creek Airport and that he stood to make a lot of money out of that. But there’s nothing illegal about what he was doing. As a member of parliament there is no prohibition on him doing that,” he said.
“The only declaration he had to make was one to ensure there was no conflict of interest between what he was doing and his parliamentary duties. I don’t think it goes to her probity.”
Mr Whealy said there was also no suggestion the MP told Ms Berejiklian about the “cash for visas” immigration scam he was involved in, or that he was receiving cash pay-offs at his parliamentary office.
“I don’t think there’s any evidence that she had any idea about that”, he said.
ICAC’s power to investigate corruption is far-ranging, but it has no prosecutorial function. It can make findings of fact about whether a person is engaged in corrupt conduct but it is not permitted to come to any finding that a person is guilty of a criminal offence, or even recommend that a person be prosecuted.
The commission can issue only an opinion as to whether the advice of the Director of Public Prosecutions should be sought about starting proceedings.
Constitutional law professor Anne Twomey said there had historically been a high bar for any finding of corruption by ICAC.
“Under s. 9 of the act the only way you can get a finding of corrupt conduct against a member of parliament is if it’s a criminal offence or there has been a substantial breach of the parliamentary code of conduct,” she said.
“Even then you also have to find that person has also breached s. 8 of the act, which means acting in a way that affects the performance of a public official in their duties.”
“It’s quite difficult to get all those things to line up. Whether any of that could be found would be extremely difficult.”
Not everyone agreed.
Labor MP Adam Searle, the leader of the opposition in the NSW upper house and a barrister, argued the Premier was legally obliged under s. 11 of the act to report what she knew about Mr Maguire’s activities to ICAC.
“We’ve heard him tell her about a number of his schemes to charge commissions for doing developers. She knows of a number of other commission schemes he got in place and we know of at least one example where it was successful, where she knows he got paid and her message seems to be approving.”