ICAC & Berejiklian: lose & lose (so do we)

Andrew L. Urban

“Two powerful cultures, legal and political, clashed when former NSW premier Gladys Berejiklian took the stand at the Independent Commission Against Corruption last week and on Monday. The outcome did the participants little credit.” That’s how The Australian began its editorial on November 3, 2021, accurately, in our opinion. The day before in the same paper, acclaimed Labor historian and commentator Troy Bramston had declared, “The ICAC hearings have been a train wreck for Berejiklian.” Two divergent assessments, both arguable. Everybody lost.

Even while watching the (inexplicably poorly presented) live streaming of proceedings, I formed the opinion that is well expressed by The Australian’s editorial: “The hearings smacked of an unnecessary show trial. Some of the questioning was supercilious and sneering. More importantly, much of it missed the essential point of how politics operates in all its messy democratic glory. Politicians are elected to decide how to spend taxpayer money to fund programs, build hospitals and rail lines and recital halls to provide for the public – and win elections. If voters don’t approve. Voters kick them out. When there is no hint of corruption, it should not be up to an impertinent ICAC commissioner to pass judgment on politics, as base as it can be.” And I would add that ICAC lawyers are not expected to know how politics operates ‘in all its democratic glory’ which is a good reason to approach the task of public interrogation of politicians with greater care; perhaps allowing for the necessary context to be posed as part of the questioning. That would also avoid looking foolish …

The Australian also noted that “Much of Ms Berejiklian’s testimony was not her finest hour. She was prepared to reluctantly acknowledge the importance to her of the odd-ball relationship once it was exposed, while on the other hand insisting it was in effect so meaningless as to not warrant declaration. This inherent absurdity, albeit understandable given her private nature, left her squirming in the ICAC hearings and did some of her evidence no credit.” Bramston amplified this view: “Her credibility has been shredded. When Berejiklian resigned, she claimed to have upheld the “highest of standards” in public life. The ICAC hearings have been a train wreck for Berejiklian. Her credibility, integrity and ethics have been permanently damaged. It casts a shadow over the Perrottet government.”

Observed The Australian, “It was also not ICAC’s finest hour either. Airing intensely personal conversations was needlessly intrusive, even voyeuristic, causing unnecessary humiliation to a decent, honest human being.” This reprimand referred to a line of questioning that at one stage I felt was coming close to Counsel Assisting (Mr Roberston) asking how many times Gladys and Daryl had sexual intercourse.

As The Australian points out, “Mr Maguire, like all energetic local members, lobbied hard for funding for the Australian Clay Target Association in 2016-17 and the Riverina Conservatorium of Music in Wagga Wagga in 2018. Ms Berejikian clearly had absolutely no clue her friend was involved in other questionable activities, and believed he was always operating by the rules. She was caught on a bugged call telling him to always behave honestly, openly and above board, and he re-assured her. Regardless of their relationship, it is up to voters , not ICAC, to judge if that money was well spent in Wagga.”

guilt by accusation, trial by animus?

We all know from personal experience that private relationships are complex, even contradictory at times. That’s why the public would understand that there are not always yes/no answers. While in a close relationship, Berejiklian had not introduced Maguire to her family, a clear indicator that she did not really regard him as part of her family. Even if she had once told him he was … that’s how complicated these things are. It is a key issue, because of ICAC’s search for ‘family’ relationships that must be declared where policy decisions are involved.

And The Australian noted this: “While Ms Berejiklian’s relationship with Mr Maguire was confusing, relationships between MPs, many of whom grew up together, are complex. What declaration should be made by a Premier of her relationship with a powerful factional boss, or the colleagues whose partyroom vote determines her future? Are those relationships less important or prone to conflict than the one Ms Berejiklian had with Mr Maguire? One could make the case that every minister in cabinet, when deciding on local projects to the political benefit of MPs, could excuse themselves from deliberation.”

Bramston was less understanding: “This relationship was required to be disclosed under the ministerial code because it was quite obviously an “intimate personal relationship” and therefore his “pecuniary and other interests” were relevant in the discharge of her public duties. But Berejiklian claims it was not of sufficient status to disclose. This is an absurd explanation.”

Bramston was incredulous that Berejiklian ignored or fobbed off a claim by Maguire: “During a tapped phone call in 2017, Maguire told Berejiklian that he would earn a $1.5m commission in relation to a Badgerys Creek land deal which would result in him being “debt free”. He was a member of parliament at the time. Inexplicably, this also raised no alarm bells.” Berejiklian explained to ICAC that she didn’t take much notice of this remark; she didn’t take it seriously. Perhaps in the context of Maguire’s lengthy word-fests on the phone (as we heard) she was justified fobbing it off as another self-aggrandising remark.

Does Berejiklian’s conduct constitute corrupt conduct? She certainly is not the beneficiary of any corrupt conduct. But she is treated to an accusatory interrogation by ICAC as a corrupt politician. Is this an example of guilt by accusation, trial by animus?

“ICAC could have reprimanded Ms Berejiklian for foolishly not declaring a relationship with a bloke who, unbeknown to her, was dodgy. They have gone too far in forcing her from office, and then publicly shaming and humiliating her. That’s what elections are for, and that’s the role of voters,” as The Australian puts it. In other words, the public also lost, not just by being denied that vote but by the lack of reliability on the process.

In 2014/15 ICAC tried impermissibly to vilify Margaret Cunneen SC, resulting in Cunneen taking ICAC to the High Court where ICAN was admonished and a scathing report by then Inspector David Irvine shamed the organisation, describing its actions in respect of Cunneen SC as “unreasonable, unjust and oppressive.” Maybe the leopard does not change its spots?

 

 

 

 

 

 

 

 

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