Former NSW premier Gladys Berejiklian’s lifetime pension as a former MP will be unaffected by her failed legal challenge to an anti-corruption watchdog’s adverse findings against her.
Last week, the NSW Court of Appeal rejected 13 arguments brought by Berejiklian as to why the Independent Commission Against Corruption (ICAC)’s conclusion that she engaged in “serious corrupt conduct” should undergo judicial review.
“Ms Berejiklian’s application to quash the commission’s findings of ‘serious corrupt conduct’ or to have those findings declared as made without or in excess of jurisdiction should be dismissed, with costs,” a trio of judges wrote in their decision.
Berejiklian responded to the decision by saying it had been an “honour and privilege” to serve the people of NSW and that she always worked her hardest to look after their interests.
“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,” she said.
According to news.com.au, Berejiklian, 53, will score a pension-for-life after “she turns 55 under the rules of the old super scheme that was closed for MPs elected after 2007”. Berejiklian was elected to NSW Parliament in 2003. Berejiklian’s pension, “which is calculated on a complex actuarial formula, is likely to be worth as much as $200,000-a-year for life”, according to former state MPs.
However, despite the ICAC’s findings, Berejiklian’s pension is not at risk, integrity advocate and barrister Geoffrey Watson SC told Crikey.
“There is no automatic process under which an adverse finding by ICAC will lead to any adverse effect upon an individual beyond the finding of serious corrupt conduct and the possibility of a referral to other investigators,” Watson said.
“[We shouldn’t] blur the administrative role of ICAC in investigating and exposing corruption — and being permitted in special cases to declare if there is corrupt conduct — with anything to do with sanctions imposed by the criminal law. The first is an action of the executive government, and the second is an action of the judicial arm of government, and there are only very limited circumstances where they can transgress on each other.”
In a theoretical scenario where an MP had committed a crime that was linked to their parliamentary benefits, the benefits could be treated as the proceeds of a crime, Watson said.
“To be clear, I’m not saying this about [Berejiklian]. Apart from bribing your way into office, it’s hard to see where that connection could be made,” he added. Crikey is not suggesting Berejiklian did anything of the sort.
Berejiklian faces no risk of being charged over the adverse findings by the ICAC because the corruption watchdog did not recommend she be considered for criminal prosecution.
“Ultimately, the commission is of the view that Ms Berejiklian’s conduct, while it constitutes or involves a substantial breach of the ministerial code, is not so serious that it could be demonstrated to merit criminal punishment … and therefore does not reach the very high bar required to make out the offence of misconduct in public office,” the ICAC’s June 2023 report said.
“In those circumstances, it is reasonably clear to the commission that any advice from the [director of public prosecutions] with respect to the matter would be that no prosecution should be commenced.”
Berejiklian was NSW premier from January 2017 until October 2021 — a period of four years and eight months, which means she barely missed out on additional perks afforded to ex-premiers who served for five years.
Those perks would have included free air travel, office staff and access to cars and drivers, and lasted for 12 months after retirement, according to the Australian Associated Press.
In 2023, the ICAC found that Berejiklian and her secret ex-boyfriend Daryl Maguire both engaged in “serious corrupt conduct” when they carried on an undisclosed relationship while in office. The commission’s report said Berejiklian “engaged in serious corrupt conduct by breaching public trust in 2016 and 2017” by promising and awarding funding to a shooting organisation in Wagga Wagga, the state seat represented by Maguire.
Should Berejiklian’s pension be affected by the ICAC finding? Let us know your thoughts by writing to letters@crikey.com.au. Please include your full name to be considered for publication. We reserve the right to edit for length and clarity.
