The former New South Wales premier, Gladys Berejiklian, will contend that the commissioner who found she had engaged in serious corrupt conduct was not authorised to make the decision, and the finding is invalid.
Berejiklian filed a summons for a judicial review in the NSW court of appeal last week in relation to findings of serious corrupt conduct made against her by the Independent Commission Against Corruption (Icac) in Operation Keppel.
The Icac inquiry had initially begun looking at the 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. When Berejiklian was caught on phone taps, she was called to 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.
This then led Icac to investigate 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.
A judicial review, unlike an appeal, is limited to legal missteps and cannot involve challenging the findings of fact.
Icac’s 700-page report was handed down last August, nearly two years after the hearings.
Ruth 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.
The lengthy delay has been a source of criticism of Icac, but it now looks set to feature again and will likely spark further debate over the corruption watchdog.
Berejiklian remains popular but she now wants to overturn the findings, fuelling speculation she may want to reboot her political career.
Berejiklian’s summons argues that because McColl was no longer a commissioner when she completed the report, she was not authorised to prepare it from 1 November 2022 onwards. Despite being adopted by the three-person Icac commission, it was not a valid report, according to the argument.
The summons also argues that the finding that Berejiklian had a private interest in and was influenced by a desire to maintain or advance her close personal relationship with Maguire was not supported by evidence.
It argues that “Ms Berejiklian’s non-pecuniary personal relationship” with Maguire was not capable of amounting to a private interest that gives rise to a conflict of interest.
The summons says this goes to the heart of the findings that she engaged in serious corrupt conduct when she was involved in awarding two grants to projects that Maguire was championing for his seat of Wagga Wagga.
In many Icac cases the person found corrupt received some sort of payment. There was no finding that Berejikjlian received any monetary gain.
But McColl found she received or was hoping to receive another sort of benefit, namely advancement of her personal relationship by helping Maguire.
The summons also disputes that Berejiklian had a “positive duty to act only in the public interest”.
“Properly understood, Ms Berejiklian’s public duty comprised a negative duty proscribing use of her position for her own pecuniary interest or those of certain third parties” if she found herself in a position where a conflict arose between the public and private.
The summons goes on to argue that the commission erred in law in suggesting that Berejiklian engaged in a breach of public trust when she failed to disclose the relationship to cabinet colleagues.
It also argues that the ministerial code of conduct, which requires disclosures of actual or potential conflicts of interest, did not apply to the premier.
The premier’s role was “as a recipient of disclosures and the maker of rulings as to when ministers are permitted to act following disclosure”, the summons says.
This amounts to a material error of law by the commission, it says.
Icac is still to file its defence.
