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Why a court upheld Berejiklian’s corruption findings
Former NSW premier Gladys Berejiklian failed to overturn findings she engaged in “serious corrupt conduct” because of an undisclosed relationship with colleague Daryl Maguire. Lawyers Weekly explains why.
Naomi Neilson
NSW Supreme Court’s Chief Justice Andrew Bell dismissed Berejiklian’s amended summons that sought to overturn the Independent Commission Against Corruption’s (ICAC) findings that her conduct while premier was “wilful” and a breach of public trust.
Both Chief Justice Bell and Justice Anthony Meagher dismissed the amended summons on all grounds, but Justice Julie Ward, president of the Court of Appeal, took a “different view” to the first ground.
That ground, the first of 13, suggested it was outside former judge Ruth McColl’s authority to deliver the ICAC report because her term as assistant commissioner expired eight months prior.
Berejiklian’s submissions hinged on McColl being a consultant when the report was handed down in June 2023.
While Justices Bell and Meagher found it was “not outside the limits of her authority”, Justice Ward took issue with the word “adopt” to refer to the witness credibility assessments made by McColl.
“The language of ‘adopt’ … demonstrates McColl’s assistance went beyond the provision of ‘services, information and advice’, and constituted the making of findings that McColl as a consultant did not have the power to make,” Justice Ward said in her reasons.
“The communication of those findings, in circumstances where they were explicitly adopted by the commission, amounted in effect to an impermissible delegation of the chief commissioner’s task of determining all necessary findings in the making of the report.”
Given the majority of the appeal bench found against Berejiklian, the amended summons was dismissed with costs.
Berejiklian and Maguire were in a relationship from 2015 to 2020, during which Berejiklian served as treasurer and then premier.
Between 2016 and 2018, Berejiklian was involved in the approval or support of a $5.5 million grant for the Australian Clay Target Association and a $10 million grant for the Riverina Conservatorium of Music in Maguire’s former electorate of Wagga Wagga.
ICAC found this amounted to “serious corrupt conduct”.
Berejiklian’s barrister, Bret Walker SC, argued there was no evidence the relationship influenced Berejiklian and its findings were “illogical” because the watchdog was unable to suggest criminal charges.
On the first, the appeal bench said the evidence was “the applicant was well aware of her obligation to disclose conflicts of interest and duty” but “deliberately” chose not to do so.
On the latter submission, the bench said it “does not follow” because it assumed “any illogicality or irrationality which might explain the asserted inconsistency” only relates to the corruption findings and not ICAC’s failure to make a statement on charges.
“More fundamentally, there is no necessary inconsistency between the two conclusions for reasons which are identified by the commissioner’s observations,” the judgment said.
“Whereas the commission was not bound by the rules of evidence, those strict rules would apply to the prosecution of criminal charges.
“In addition, the evidence given by the applicant before the commission would not be admissible in any criminal proceeding.”
Naomi Neilson
Naomi Neilson is a senior journalist with a focus on court reporting for Lawyers Weekly.
You can email Naomi at:
