Moment of truth for Gladys: it’s all over bar the shouting

Gladys Berejiklian is political roadkill now, her car crash appearance in the New South Wales ICAC witness box disappearing rapidly in the rear-view mirror.

We now await commissioner Ruth McColl’s ultimate findings, as to whether the former premier engaged in corrupt conduct or conduct which encouraged corrupt conduct, as defined by the Independent Commission Against Corruption Act.

I was interested to read Madonna King’s defence of Berejiklian in Crikey, saying: “The treatment meted out to her daily by ICAC looks unfair, targeted and even a touch sexist. Let’s give her the benefit of the doubt, and consider that Berejiklian is guilty of falling for a crafty fool, and keeping it a secret. Isn’t it possible, then, that her main crime is bad judgment?”

Other than that, King suggests, Berejiklian’s only crime was “helping deliver $35.5 million in projects to her former boyfriend’s electorate. Shock. Horror. Pork-barrelling? Who would have thought?”

King concludes: “Ridicule is not on the statute books as a punishment for either bad judgment or pork-barrelling, and so far it seems that’s the best ICAC has to offer.”

Is that right though? I’ll take the same starting point as King, assuming that Berejiklian’s evidence was wholly truthful.

ICAC’s investigation asks four questions: did Berejiklian commit a breach of public trust by exercising her functions with a conflict of interest, in relation to the infamous Clay Target Association and Conservatorium grants; did she perform her official functions partially; was her failure to report any suspicions of corrupt conduct by disgraced former Wagga Wagga MP Daryl Maguire in breach of her duty to do so; and was her conduct liable to allow or encourage corrupt conduct by Maguire.

Each is a form of corrupt conduct as defined by the act. Importantly, for ministers, corrupt conduct includes a breach of the ministerial code of conduct which also fits within the definition, even if it is not a criminal offence. That vastly widens the scope of potential corrupt conduct findings for ministers, compared to public servants or others.

The code of conduct says a minister must not “make or participate in the making of any decision in relation to a matter in which the minister is aware they have a conflict of interest”. That is a conflict between public duty and private interest, and includes where a decision could confer a private benefit on the minister or a “family member”. And “family member” is defined to include anyone “with whom the minister is in an intimate personal relationship”.

The key question is whether Berejiklian had a conflict of interest. She was adamant she did not because her relationship with Maguire never reached that “status” in her mind. Although she called him “family” and ultimately conceded that she did consider him part of her family, she maintained that he never met the legal definition of a “family member”.

There are two ways of approaching this objectively. Through the technical legal lens, it’s very hard to see how the premier and Maguire were not in an intimate personal relationship, putting her squarely into a conflict of interest which she never declared.

But the code’s definitions are not exhaustive; its wording reflects the general law’s understanding of what a conflict of interest is: where a person’s “private interest could objectively have the potential to influence the performance of their public duty”.

Every other witness said Berejiklian had a conflict of interest, not that that’s the test. I frankly don’t see how it could be seriously suggested that they’re not right about that. If that wasn’t a conflict of interest, then I don’t know what is. Berejiklian presided over, promoted and participated in decisions that granted public money to projects which were being actively pushed by her boyfriend, both publicly and behind the scenes by constant and direct urging of her.

Berejiklian’s defence is that (a) she didn’t have a conflict because Maguire was nobody special to her and, in any event, (b) she always exercised her public duties with scrupulous focus on the public interest. Maguire got no favours from her, of that she is certain.

That is the classic defence to an undisclosed conflict: it’s immaterial, because I did the right thing anyway. However, the law has always said that a conflict can be actual or potential, and both are as bad as each other. When it comes to public office, the perception that the exercise of duties may be partial is every bit as damaging to the public interest as if it actually is partial.

It simply doesn’t matter how highly Berejiklian thought of her own moral character and adherence to impartiality. Nobody can stand in judgment of their own actions — that’s why the conflict rule exists.

She has a similar difficulty with her non-reporting of Maguire to ICAC in 2018, when his corruption first came to light. Her case is that she determined that she didn’t know anything of relevance, but again that is not the test. Her boyfriend (current, not former) was being investigated for alleged corruption, and he had been telling her things about his dealings for years. That much is clear from the intercepted calls and texts. What she knew wasn’t the point; what she suspected, she was obliged to report.

It looks bad because it is bad. However competent a premier Berejiklian was, however personally selfless, and however badly she misjudged her choice of lover, her conscious actions were, it seems to me, inconsistent with the objective legal requirements.