Has ICAC found Gladys Berejiklian Clayton’s corrupt?

Andrew L. Urban.

June 29, 2023: Investigating a third NSW Premier, the Independent Commission Against Corruption has found former Premier Gladys Berejiklian engaged in ‘serious corrupt conduct’. But not corrupt enough to recommend the matter to the Director of Public Prosecutions. It’s the corruption finding you have when you don’t have a corruption finding – a bit like Clayton’s, the non alcoholic drink you have when you are not having a drink, perhaps.

After a much criticised delay of 18 months since the hearings into Wagga Wagga MP Daryl Maguire and his then secret girlfriend Berejiklian, the ICAC released its report amidst excuses that it took so long because it was very complicated. Berejiklian hadn’t broken the law, and it took two years or so to discover that, said some.

“The Commission finds that Ms Berejiklian engaged in serious corrupt conduct by breaching public trust in 2016 and 2017 through exercising her official functions in relation to funding promised and/or awarded to ACTA, without disclosing her close personal relationship with Mr Maguire, when she was in a position of a conflict of interest between her public duty and her private interest, which could objectively have the potential to influence the performance of her public duty. The Commission also finds that in the same period, Ms Berejiklian partially exercised her official functions, in connection with funding promised to ACTA, influenced by the existence of her close personal relationship with Mr Maguire.”

To Chris Merritt of the Rule of Law Institute and legal affairs correspondent at The Australian, the report was “over the top… it’s something like 600 pages …  to describe Gladys Berejiklian as seriously corrupt amounts to debasement of the term. And there is no accusation that she received a pecuniary benefit. The matter of substance, the clear finding against her, is that she failed to inform ICAC of what ICAC says was her suspicion that her former boyfriend was up to no good,” he told Sky News.

“The other aspect worth looking at is that the source of this inquiry was ICAC’s jurisdiction over the ministerial code of conduct.” Merritt questions the nature of the finding, which goes to the heart of how politicians make funding decisions, essentially to help their political fortunes. And he wouldn’t be surprised if “there was some consideration, at least, of an appeal challenging that finding.”

Among several to do so, Margaret Cunneen SC sympathised with Berejiklian, who’d be feeling “dreadful” being in limbo, unable to clear her name in court. She scolded the ICAC for the torture it inflicted by leaving an investigation subject in limbo for so long. Cunneen had her own run-in with the ICAC in 2014-15, which ended with Cunneen winning in the High Court, where the ICAC was criticised for exceeding its authority. That has always been its tendency. Two previous NSW Premiers targeted by the ICAC, Nick Greiner and Barry O’Farrell, were both cleared of corrupt conduct – after the usual ICAC torture routine.

NSW current Premier Chris Minns, one of those voicing criticism of the delay in finalising its report, also made noises that he would be open to ways of reforming the way ICAC operates.

Labor legend Graham ‘Richo’ Richardson, said he felt “no glee” at the report and wished ICAC would be closed down.

It should be noted that under section 74B of the ICAC act, “the Commission is not authorised to make any findings that the person has committed a criminal offence or has engaged in conduct which constitutes or could constitute corrupt conduct”. The ICAC can, however, make findings or express an opinion someone has committed “serious corrupt conduct”.

Both Premier Chris Minns and Liberal leader Mark Speakman called for more scrutiny on the corruption watchdog. Minns said he wanted the report into Berejiklian and Maguire to state the reason for its delay. Speakman backed time limits on investigations, saying the delays in Operation Keppel were “quite … extraordinary”.

Full disclosure: Andrew L. Urban authored the books, ‘Gladys – staying strong’, and ‘The Boxing Butterfly – Margaret Cunneen SC’ (Wilkinson Publishing).

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9 Responses to Has ICAC found Gladys Berejiklian Clayton’s corrupt?

  1. andrew says:

    “ICAC did not demonstrate that her ministers would have made different decisions, or used a different process, if they knew of her relationship with an MP who was not a minister.” – Peter Egan, Mosman. Daily Telegraph, June 3, 2023

    I thought it worth repeating.

  2. Jerry Fitzsimmons says:

    Andrew I can only but hold you in great standing for all you do with regards to the “Wrongful Convictions Report” but I cannot on this occasion buy the argument that Gladys “gained nothing by way of money or prestige” as a way of excusing her from any wrongdoing.
    Like you I want to believe that but honestly,I just don’t know!
    While sitting on a committee let alone a government committee and to not declare a “conflict of interest” when funds (public funds) are being approved for your ‘undisclosed’ partner’s interests! It defies logic.
    Gladys fortunately as it appears breached “a ministerial code of conduct” under privilege but until ICAC put her in the witness stand it was then and only then that we were ever made aware of all of this.
    I am not for one minute suggesting that Gladys should face trial, that’s for the legal eagles to decide but the public perception is she acted wilfully wrong in a trusting public service role.
    All she needed to do was ‘excuse herself’ from the committee panel when this funding was even under discussion, if there was any discussion.
    As I said previously “I believe Gladys did the best and right thing by resigning when she did”. I believe that this very intelligent woman realised herself that ‘she had crossed the line’ and that there was no turning back, sad as it is to say.
    I say that because I guess no one more than Gladys herself must rue the day she became involved with a colleague who I feel didn’t see her similarly as a colleague.
    Many lesser known or not so well thought off individuals having breached ‘conflict of interest’ stipulations may not have escaped a referral to the Department of Public Prosecutions.

  3. John S says:

    Gladys acted in poor faith (corruptly) & needs to be held to account over that, despite her popularity when she was NSW Premier. No one is above the law, not even Superman or Jesus! I think Jesus would agree!

    She should be charged, then let the courts deal with it, not just the (social) media!

    • andrew says:

      The ICAC did not recommend the case to the DPP, so she can’t be charged. That means she can’t be found legally guilty – or not guilty. That is unsatisfactory. The ICAC needs to be reformed.

      • John S says:

        Not yet! I think the pressure will mount and sense will prevail and she should be charged. True, ICAC failed us here. Maybe they should be investigated! SA ICAC didn’t do that well lately, IBAC in Vic is near useless. So much for them being “Independent”! They’re bent too it seems! Hardly surprising that if those in positions of trust fail to act in good faith do so, then the govt institutions in place to hold them to account are no less worthy of trust either! Bit like who polices police!

        If she has nothing to hide, and would like the doubt cleared up, she shouldn’t have any concerns with being put on trial! Or should she!? She could always request such action to clear her! As if!!

        But there could also be other ways. Perhaps she and/or her bent colleague cum partner could be sued by those who feel they missed out as a result of bent dealings (or lack of it).

        The court of public opinion alone (naming & shaming) will be a start to giving her appropriate disrespect, etc. Hopefully that could lead to her NOT getting any gongs or sweetheart postings in public office like State Govenor or some diplomatic post, etc.

        • andrew says:

          ICAC didn’t recommend charges because they found that Gladys broke no laws. She failed a ministerial code of conduct, a political matter. She gained nothing by way of money or prestige … quite the contrary. So it’s not feasible to put her on trial….

          • John S says:

            You’re right about all that, but I’m sure she could have been more punished in some way or other if they really wanted to ding her! She misled her colleagues and constituents, there should be some actions taken (remove any credits & gongs she got during office, even perhaps adding little plaques under the ones from openings that she lied!).

            She did become Optus bigwig, their business but would you have her as bigwig, or happily trust in Optus! No way!

            Part of it is that both sides are bent & soft on this. We treat white collar crime like a joke when you & I wouldn’t even get away with stealing a packet of chewing gum from a shop!

            She & her partner gained from deception, isn’t that enough of a crime? That’s fraud. Her “gain” is that she kept being Premier for longer than she would have had it all come out sooner.

  4. Jerry Fitzsimmons says:

    Andrew, my observations during the ICAC hearings which included listening to the many recordings of phone conversations clearly informed us all that ‘deals’ and ‘dealings’ were apparent with regards to the distribution of government subsidised funding (Grants funding).
    If you can recall the remark “Dom. does what I tell him”, Dom. being the NSW treasurer. Says a lot about ‘power games’.
    We hear versions of why the former government didn’t legislate for a Federal Commission of Enquiry, well for me that’s almost a no-brainer to work out.
    Premier Nick Greiner brought in ICAC and like others who were ‘publicly’ humiliated by it’s exposures of corruption he expressed his dis-content after his ordeal at there being such public exposure eg ‘this may have been a mistake’.
    It has however shown no favour between public and non-public figures and complaints about this public exposure ‘Commission’ has brought outcry’s of “kangaroo court” type justice!
    Other people however in positions of power and who appear to function with integrity (current Premier and Opposition Leader) show apparent support for ICAC.
    Some say it has influenced future election outcomes and I believe this may be true. From that point of view I believe Gladys did the best and right thing by resigning when she did. She would have been aware of party rumblings!
    This woman became the face of the nation during the Covid pandemic and I have no doubt earned her credible ‘politician’ status then. This was however her chosen job and as a leading public servant she was excellent at it during Covid times.
    But this did not give her as the Premier over-riding powers on any of her Ministers including her treasurer Dominic Perrottet who it appears accommodated the Premiers then undisclosed “boyfriend’s” funding needs after a phone-call from her.
    To not openly declare, when asked about ‘conflicts of interest’ regarding distribution of public funded grant money related again to her then un-disclosed boyfriend’s dealings this had all the appearances at best of unethical dealings.
    Having had the opportunity to view these ICAC public hearings acts of corrupt behaviour always appeared highly likely. I’m not so sure that the ordinary tax- paying contributor would have become aware of matters such as treasury advice being ignored and over-ridden for a project favoured by the un-disclosed boyfriend had it not been for public viewing. The report should be an interesting document!
    ICAC I believe has a role to play as does a CCRC.
    Gladys no doubt will be weighing up her legal options with regard to the ‘Clayton’s’ finding.

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