Gladys Berejiklian launche bid to clear her name after ICAC findings ruled former NSW Premier engaged in ‘serious corrupt conduct’

Former NSW Premier Gladys Berejiklian has questioned how the ICAC could find she was guilty of “serious corrupt conduct” and not refer her for criminal charges, a court has heard.

Ms Berejiklian is mounting a legal battle against ICAC findings that she breached the ministerial code by failing to disclose her relationship with her former partner and fellow ex-MP Daryl Maguire.

Lawyers representing Ms Berejiklian appeared before the Court of Appeal on Monday in an attempt to overturn a finding that she engaged in ‘serious corrupt conduct’.

ICAC’s findings relate to the approval of two multi-million dollar grants – to the Australian Clay Target Association and to the Riverina Conservatorium of Music – in Mr Maguire’s former electorate of Wagga Wagga.

Ms Berejiklian faces a two-day hearing at the Court of Appeal, where she is represented by high-profile barrister Bret Walker SC.

Despite the negative findings against her, the ICAC did not recommend that Ms Berejiklian be referred for criminal prosecution.

The Commission accepted counsel’s submissions that the obstacles preventing Ms Berejiklian from being prosecuted for misconduct in public office were ‘formidable’.

Mr Walker said the fact that Ms Berejiklian was not referred to the DPP should raise questions about the findings.

“That raises questions that need to be answered about the internal consistency of the reasons and conclusion in this part of the report,” Mr Walker said.

“If there is insufficient confidence that this will be resolved, in our view it is very difficult to see … that our client has deliberately and knowingly committed these unfair, self-interested violations.”

She also states that there is no evidence that she was influenced by her relationship with Mr Maguire and that there was no conflict of interest.

Judge Andrew Bell – one of three judges who heard the case – noted that it was “more than just friendship.”

However, Mr Walker argued: ‘On the spectrum of personal relationships there would be a happy marriage at one end and a cheerful acquaintance at the other. There is no case law that says there comes a point where you have to disclose that.

‘There is no register of friendships.’

ICAC’s findings relate to Gladys Berejiklian’s approval of two multi-million dollar grants to Daryl Maguire’s (pictured) former electorate of Wagga Wagga (pictured together)

ICAC has found Ms Berejiklian engaged in “serious corrupt conduct” in her dealings with the Australian Clay Target Association between 2016 and 2017.

The body found that she had a conflict of interest that “objectively had the potential to influence the performance of its public mission.”

However, Mr Walker told the court that Ms Berejiklian did not necessarily take her private relationship with Mr Maguire into account when making funding decisions.

“You don’t take something into account just because it’s true,” Walker said Monday.

‘Who your parents are, who your brothers and sisters are, who you drink with on Friday or who you sleep with. They are things that exist and it is factually incorrect… to regard them – by virtue of their existence – as things that you take into account in your daily decision-making.’

The former Prime Minister also challenges the validity of the report on the grounds that ICAC acted outside its authority under the ICAC Act.

Ms Berejiklian said the report was invalid because former judge Ruth McColl’s term had expired before she released the report.

Ms McColl, a former Court of Appeal judge, oversaw the hearing but her term as assistant commissioner of the ICAC expired in October 2022.

She delivered her report as an advisor in June last year.

Ms Berejiklian argues it was not a valid report because Ms McColl was not a commissioner at the time.

“Ms. McColl’s services are necessary to finalize the report on Operation Keppel, including participating in the review and drafting process of that report,” Walker told the court on Monday.

“We say … the credibility conclusions set out in the report are truly matters that Ms. McColl was unable to achieve and that the committee could not otherwise adopt.”

He further argued that the “entire report was beyond jurisdiction.”

Barrister Stephen J Free SC, for the Independent Commission Against Corruption, said there could be no doubt that the report was written by the commission and not Ms McColl.

He argued that the report stated that Ms McColl oversaw the public hearings.

“But that is entirely consistent with the report being a report from the committee, not from Ms McColl,” Mr Free said.

“She was a key figure in supporting the commission, first as an assistant commissioner and later as an advisor.”

Former NSW Treasurer and Opposition health spokesman Matt Kean issued a statement on Monday saying that while he was not anticipating the Court of Appeal’s findings, he was concerned the question was being questioned whether the ICAC had exceeded its powers.

Former NSW Premier Gladys Berejiklian mounts legal challenge to ICAC’s findings that she breached the ministerial code

“We have a body being given extraordinary powers behind closed doors – and the only element we actually get to see is ending up in court to investigate whether the body was operating within the law,” Mr Kean said.

“I won’t prejudge the outcome, but just based on that challenge, if it’s successful, what confidence can we have in the other 95 percent of the process that we can’t see.”

The ICAC found that during his time as an MP, Mr Maguire inappropriately used his public office to further his own financial interests and those of his colleagues, while deliberately failing to disclose his position and potential monetary benefits.

“Let it be remembered that during his time representing the people of Wagga and the region he worked tirelessly for his constituents,” Maguire said in a statement at the time.

“Indeed, he was described in the evidence as a dog with a bone, a vocal advocate for the electorate, or a nuisance when it came to obtaining improvements for the Wagga electorate.”

The hearing before Chief Justice Bell and Justices Julie Ward and Anthony Meagher continues Tuesday.