Gladys Berejiklian (Image: AAP/Dean Lewins)

Gladys Berejiklian has left but the Independent Commission Against Corruption wars continue — perhaps now with a genuine martyr to press the cause.

And the impact is not only in New South Wales. It’s likely to spill over into the shape of a federal version of the ICAC, should it ever come to pass. The question is: might those who wish to rein in ICAC — “the monster” as its critics call it — look to ICAC’s future by going back to the past?

A quick recap. 

The NSW premier resigned last Friday after the ICAC announced it would focus its investigations on actions taken by Berejiklian in relation to former NSW MP Daryl Maguire. Berejiklian was in a secret relationship with Maguire for five years before it was revealed, sensationally, at ICAC hearings in August last year.

Did Berjiklian intercede to ensure a $5.5 million grant went to the clay target association in Maguire’s Wagga Wagga electorate? Did she more generally know of Maguire’s dodgy dealings while an MP but fail to pass on that information to ICAC? Or did she actively turn a blind eye, even as premier?

It’s important to underline that ICAC is yet to investigate and make findings. Berejiklian stepped aside having assessed that her position was untenable — win, lose or draw — with ICAC’s work likely to take up most of the period before the state election in 18 months.

Public support for Berejiklian has been enormous, in part because of a very effective piece of spin from the premier’s office that she had been the victim of a dud boyfriend. Senior Liberals have various degrees of fury about ICAC — primarily on the grounds that it trashes reputations of good people by holding open hearings which air the worst of allegations.

Is it unfair?

Whatever you think of Berejiklian, she is no Eddie Obeid, the former NSW MP who committed industrial-scale corruption while on the public purse. But Berejiklian’s fate is now bracketed with two other NSW premiers, Nick Greiner and Barrie O’Farrell. O’Farrell resigned after it was revealed he had failed to declare the gift of a bottle of Grange — having already told ICAC he did not receive it. In Greiner’s case, ICAC found he engaged in corrupt conduct. Greiner was leading a minority government and was forced to resign. The finding was later overturned by the NSW Court of Appeal.

What had Greiner done? A former minister in his government had defected to become an independent. He was then offered a senior position in the government, opening the way for a byelection in a safe Liberal seat and a chance for the government to restore its numbers — an apparent use of the public service for a political motive.

But it’s what happened next in the Greiner case that it is revealing and which may act as a signpost for the future of ICAC: the NSW Ccourt of Appeal found that ICAC acted outside its powers. 

Section eight of the ICAC Act includes a laundry list of corrupt acts: bribery, blackmail, fraud, theft, embezzlement — to name some — on top of official misconduct (including breach of trust and fraud in office). But section nine limited the definition such that it applied only to acts that would be ” a criminal offence”, a “disciplinary offence” or constitute “reasonable grounds for dismissing, dispensing with the services of or otherwise terminating the services of a public official”. 

The Court of Appeal found the Greiner case was not corrupt conduct in these terms.  

In response, the act was amended to broaden the definition of corruption. A new category was added to section nine which gave ICAC the power to include “a substantial breach of the codes of conduct for ministers and parliamentary members”, a wider definition which has opened the scope of ICAC’s powers since, taking it into territory not originally intended.

It’s not clear whether or not Berejiklian would be investigated under the first version of ICAC’s powers.

ICAC’s Greiner decision also sat oddly with the times. ICAC was introduced — by the Greiner government — in the late 1980s when NSW was engulfed in serious corruption to the highest levels of the police, government and judiciary.

A royal commission into premier Neville Wran cleared him of attempting to influence a magistrate, but much more was happening besides. It reached its zenith, or depths, when the minister in charge of prisons, Rex Jackson, was imprisoned, having been found guilty of accepting bribes to free certain prisoners under the euphemistically named prisoner early release scheme. (So rife was the joint with corruption back then that even your humble correspondent was able to file a credible report that a NSW minister of the day had attempted to interfere in a court case involving a Chinatown kingpin and allegations of heroin importation.)

ICAC was established as a standing royal commission with the wide powers of a royal commission, to compel the production of documents, seek telephone intercepts, etc. It has been criticised for trashing people’s reputations — even though the same happens at all royal commissions. Big names have been dragged through the mud at royal commissions into banking, church child sex abuse and police corruption.

One key difference, though, is that the ICAC is able to establish its own terms of reference, rather than follow terms set by governments. It’s that level of independence which infuriates the commission’s well-connected opponents — some of whom just happen to also control its funding.