On Thursday, the New South Wales Independent Commission Against Corruption dealt a blow to the legacy of former premier Gladys Berejiklian in ruling she engaged in serious corrupt conduct while in office.
Icac’s Operation Keppel also found her ex-boyfriend and former Wagga Wagga MP Daryl Maguire, as well as two other individuals, engaged in corrupt conduct and is seeking advice on whether any prosecution should be commenced against the three.
However Berejiklian is not being considered for criminal prosecution.
In its almost 700-page report, the Icac outlined the legal reasons why it decided not to seek advice on prosecuting Berejiklian.
The reasons make clear the distinction between corrupt and criminal conduct and the difficulties in proving the latter.
Why won’t Gladys be charged?
In its report, counsel assisting the commission submitted that as Berejiklian gave her evidence under objection, it would not be admissible against her in criminal prosecution.
The Icac has powers to compel people to give evidence that may incriminate them, however this evidence cannot be used in criminal proceedings.
Geoffrey Watson SC, a director at the Centre for Public Integrity, said the reason why an Icac finding of corrupt conduct doesn’t necessarily equate to grounds for a criminal prosecution is rooted in the reasons behind the establishment of the corruption watchdog.
“The theoretical framework for an anti-corruption body is to go into areas where the police can’t and Icac was established with a power to compel unwilling witnesses to give evidence, something our criminal justice system cannot do. Police cannot compel Berejiklian to provide the same evidence.”
Watson said this is one reason why Berejiklian won’t face criminal charges while Maguire could.
“With Maguire, the Icac’s findings also rely on evidence not given under compulsion, plus there are other things he did that are more clear cut crimes,” Watson said.
Stark contrast
Dominic Villa, a Sydney barrister, said the findings against Berejiklian “are in stark contrast to the serial corrupt conduct which Icac found on the part of Mr Maguire”.
The commission also suggested it would have been difficult without her providing direct evidence to determine if she engaged in the corrupt conduct for electoral advantage or to advance her relationship with Maguire.
They would also have to explore Berejiklian’s mental state in supporting the grants to prove any misconduct by her was “wilful”. Villa said proving “this is a very difficult exercise, especially when coupled with the requirement on any prosecutor to positively disprove any reasonable explanation that is consistent with her being innocent”.
On balance, counsel assisting Icac submitted that the obstacles to a prosecution were “so formidable that no prosecution may be commenced”.
‘Does not reach the very high bar required’
Under the laws governing Icac, it is possible for behaviour to be serious enough to warrant a corrupt conduct finding, but not so serious as to constitute the offence of misconduct in public office.
Put simply, Icac’s definition for corrupt conduct, and the definition of criminal conduct, are different.
Villa pointed out that “the findings against Ms Berejiklian, while serious, do not involve findings that she acted for personal advantage of a financial kind”.
In relation to the grant proposals for the two Wagga Wagga based organisations – the Australian Clay Target Association (ACTA) and the Riverina Conservatorium of Music (RCM) – being advanced by Maguire, Icac ruled Berejiklian engaged in serious corrupt conduct in these matters, but it did not believe this constituted the charge of “misconduct in public office”.
“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,” the commision said, noting that being serious and meriting criminal punishment is the fifth element to satisfy the offence of misconduct in public office.
“Therefore (this) does not reach the very high bar required to make out the offence of misconduct in public office,” the Icac said.
In relation to the finding Berejiklian engaged in corrupt conduct by failing in her duty to report to the Icac suspicions that Maguire had engaged in corrupt conduct, the Commission also found the “obstacles to a prosecution would be so formidable”.
Criminal misconduct, Icac said, requires additional elements of proof that don’t need to be met to satisfy a finding of corruption by the Icac, which has a lower threshold.
Establishing a nefarious motive was one example the Icac provided as being necessary for a criminal prosecution, but not for the commission to find corrupt conduct.
“The Commission is satisfied on the evidence … to establish that Ms Berejiklian wilfully failed to comply” with her duty to report suspicions of corruption, the Icac found.
