ICAC’s ‘hat-trick’ of lynchings must not be extended

Not so the NSW Independent Commission Against Corruption. As the recent public hearings in ICAC’s Operation Keppel demonstrate, the organisation’s remit ­extends outside real or even perceived corruption.

In my column of October 18 last year, I wrote that ICAC could be on its way to achieve, in cricketing terms, a hat-trick. In this case, the dismissal of three successful NSW Liberal Party premiers – none of whom has been demonstrated to have been corrupt or engaged in corruption.

Former NSW premier Gladys Berejiklian’s fate was effectively sealed in October 2020 when she was cross-examined in a public hearing about Daryl Maguire, the former Liberal Party member for Wagga Wagga. Maguire was forced to resign in August 2018 from the Liberal Party and the NSW parliament following evidence provided to ICAC that he sought to receive secret commissions from a property developer. Three years later, the matter is still unresolved.

Berejiklian was born in 1970 to Armenian-Australian parents of the Orthodox Christian faith. When she first attended school in Sydney, Berejiklian spoke no ­English. She enjoyed a successful career in politics, rising to the top political job in Australia’s most populous state. But she always exhibited a certain shyness – along with a deep reluctance to talk about herself in any personal ­capacity.

Appearing before ICAC last year, Berejiklian suffered considerable personal embarrassment when, in answer to the counsel assisting the commission, she declared a five-year personal relationship with Maguire. During her second appearance at the public hearing on October 29 and November 1 this year, Berejiklian was asked much the same questions – and provided much the same ­answers – about her love life.

It’s not clear why acting commissioner Ruth McColl SC and ICAC counsel assisting Scott Robertson thought it was necessary to rake over the former premier’s private life once again. There seems to be no reason why this was necessary – unless the powers-that-be at ICAC believed that ­Berejiklian might stumble and contradict what she said the previous year. It didn’t happen.

Mark Latham, One Nation leader in the NSW Legislative Council, has been one of Berejiklian’s most severe critics over her failure to declare her involvement with Maguire until effectively forced to do so last year.

But Latham said on Sky News this week that he saw no reason for the recent two-day ICAC hearing about the former premier – since it went over old ground. The only consequence, no doubt unintended, was yet more public humiliation for a very private woman.

Berejiklian handled herself in a composed and professional manner and did not concede that she had done any wrong with respect to the NSW Coalition government’s decision to provide funding for a public hospital, a music conservatorium and shooting club in the Wagga Wagga area.

The only hitch came when Sarah Cruickshank, the former premier’s chief of staff, told ICAC that Berejiklian had told her that the relationship with Maguire had ceased in July 2018. This was not the case. But Berejiklian could not recall telling her staffer that the ­relationship was over. It’s not uncommon for two truthful individuals to have different recollections of the same event. In the absence of any evidence, this is very much a “she said/she said” event.

What was historical about the hearing was that the NSW premier resigned her office on October 1, once it was announced that she would appear before ICAC. In June 1992, ICAC found against Coalition premier Nick Greiner and he exited politics. Greiner was cleared by the NSW Court of ­Appeal in August 1992.

In August 2014, Barry O’Farrell was forced to resign as premier following his failure to remember during an ICAC hearing that he had received a bottle of Grange wine from a businessman. The Sydney Morning Herald’s Kate McClymont suggested at the time that O’Farrell had lied to ICAC.

In August 2017, ICAC found that the former premier had a memory fail and had not attempted to mislead the commission.

In short, neither Greiner nor O’Farrell were found to have acted improperly. But they were humiliated and forced out of politics. It’s not clear where the Berejiklian case will end up. But no one has demonstrated that she has acted corruptly. Unless some individuals regard it as improper to provide funds for a hospital, a conservatorium or a shooting club in a large regional town.

The only case with any substance against Berejiklian is that she did not declare a personal relationship as required in the NSW ministerial code of conduct.

Berejiklian’s position is that the relationship was not of such standing to warrant such action. It is ­impossible to disprove such a statement.

Moreover, if ministers are to declare what others perceive to be a close personal relationship – where will it stop? Should such a rule be applied to all politicians?

And what about business figures who deal with governments and journalists who report on ­governments?

A commission like ICAC is just that – a commission. It is not a court of law. Yet McColl and Robertson insisted that Berejiklian ­answer their questions in the affirmative or negative and prevented her from stating her case.

This tactic has been queried by Professor Jeremy Gans of the Melbourne Law School. He criticised the fact that Berejiklian was not allowed to explain why she acted the way she did.

Gans also suggested that in “criticising GB and cross-examining her”, McColl was going beyond what a judge would do in a trial – and this was not a trial.

And so it has come to this. Three successful and able NSW premiers have been effectively forced out of politics due to hearings before the NSW Independent Commission Against Corruption.

Greiner and O’Farrell were cleared after the event. And no one put it to Berejiklian that she had acted corruptly.

It’s time to change ICAC’s name and substantially reduce its extrajudicial powers.