Gladys Berejiklian may end up doing us all a favour if her case moves quickly through the NSW Independent Commission Against Corruption and the result is available for comment and debate, if there is one, about whether the Commonwealth is to have an integrity commission, and, if so, with what openness, procedures, and safeguards.
On that account, however, it could be wise to watch the case unfold, Ms Berejiklian tell her side of the story at greater length, and that we have an opportunity to hear a full-scale legal debate about whether and to what extent conduct of a particular sort - shall we call it partisan political action designed to favour one's political or personal friends is capable of being described as corrupt conduct.
Ministers in the federal government, accused of blatant corruption and improper process over recent years, have put forward several propositions in support of their actions. Among these have been the suggestions that:
- Possibly improper or partisan conduct - for example the distribution of a grant scheme to government-held electorates, or marginal seats the government was hoping to win, could retrospectively lose their moral stain or question marks if the government is returned. The electorate has approved the questionable behaviour. (We do not know yet whether the loss of a general election means that government agencies, previously obliged to dole the money out, are now obliged to get it back again.)
- Even where legislation specifies a means of giving out for governments - for example after assessment by a neutral and independent body, which ranks the objective worthiness of the grants in rank order - it is open to ministers to tear the recommendations up, and to hand it out any old how. This is, apparently, on the constitutional theory that ministers, or groups of them, can do anything they like, because they are ultimately responsible for what the government does.
- That there is no constitutional, legal or practical difference between promising particular rewards to electors, or an electorate, provided that the government is returned, and actually doling out the money, or the favours, seconds before the election is called, long before the supposed "authorising" cabinet minute is cited or sighted, and, in many cases, long before the particular project has been put to government in any sort of coherent form.
- That it is "OK" for governments to pork-barrel money to favoured electorates, favourite cronies or favoured causes because "everybody does it."
Whether these are statements of how good and honest government is carried out in an Australian state, or even at the federal level, are likely to be traversed before ICAC. One way or the other, they form part of the alleged factual background to the inquiry in which Berejiklian is engaged. By a no doubt complete coincidence, a good number of federal government actions, including rorting grants schemes ostensibly supposed to be distributed by merit rather than party tags, are being defended as perfectly regular by ministers from Morrison down, using much the same language as has been used by Berejiklian. The writ of ICAC might not run at the federal level, and won't even after or if we are to have an Integrity Commission. But there has been a remarkable unanimity over the years between corruption commissions, royal commissions into public administration, inquiries into government or public service bodies which have gone awry, and even the conduct of banks, on the subject of treating public money as if it was in one's own personal gift.
Ms Berejiklian is not on trial, nor is she charged with anything that is a criminal, even a civil offence. Words like "guilty" or talk about legal penalties or jail simply do not arise. But her conduct, and that of her erstwhile boyfriend Daryl Maguire is under examination. In one sense (and by Berejiklian's own story), Maguire is the real villain. He was her secret boyfriend, and she was for too long unaware that he was at heart a rotter, not least in allegedly seeking success fees, introduction fees, and sometimes a share of the action when one or another of his schemes was being successful. She has admitted, more or less, that she knew he was forever on the make, with lots of plots, plans and hopes. She says, in effect, that she tended to turn off and not listen when he was discussing some possibly dodgy pipedream. Others have spoken of his seeking to "monetise" his parliamentary position, and to use his status as a politician for his own personal gain.
So far so good if that was all that happened. But the investigation is said to have found evidence that Maguire was peddling access to her, first as treasurer, later as premier, and sometimes, using his own access to her to pretend to be something he was not. Moreover, he was pushing her to make decisions to give at least two substantial grants to projects in his electorate. One was a clay pigeon facility, another a conservatorium of music. The suggestion is that Maguire put these projects to Berejiklian during their secret relationship (unknown to anyone else in government) and that she was involved in some official acts equivalent to her shepherding the proposals through the system. Berejiklian has denied this and has claimed that at most she signed recommendations coming up from the system, but correspondence has emerged showing that she was making inquiries about the progress of the submission, perhaps because of nagging from the boyfriend.
The premier and the wide-boy on the make
The ICAC terms of reference ask if what she did amounted to a breach of public trust by exercising functions where she was in a conflict between her public duties and her private interest as a secret girlfriend of Maguire. It is also asking whether the giving of the grants involved the "partial" exercise of her duties, and whether she failed to carry out her duty, under the ICAC Act, to report any matter that she suspected on reasonable grounds to be corrupt conduct, and, if so, whether that had the effect of "allowing and encouraging" corrupt conduct by Maguire.
ICAC is also investigating whether Maguire breached his public trust by using his public office, involving his duties as an MP and the use of his parliamentary resources, to improperly gain a benefit for himself from some named organisations.
In the immediate aftermath of her announcement that she was standing down both as premier and as a member of the NSW Parliament, sources close to Berejiklian were suggesting that she had been comprehensively ambushed, and not only for a very small sin, at most, but at a time of maximum political inconvenience. She would say that, but she can hardly have been surprised that the ICAC announcement was imminent. Almost every day during the COVID briefings, journalists were asking her whether she had made recent appearances at ICAC (questions she brushed off).
By then, she had almost certainly made her third set of appearances before ICAC. The first two were last year, during an inquiry primarily focused on Maguire's dodgy deals. ICAC had a good deal of evidence, including about ways in which Maguire had appeared to be hawking his access to her. She gave secret evidence at which she told of her secret special relationship with Maguire - now over. Later, in the ICAC manner, she was called to give the same evidence in public. It was embarrassing - deeply so for a woman who had closely guarded her privacy - but there was no ambush; she knew what she was to be asked, and, from even her own point of view could see why the material had to come out.
From Scott Morrison's point of view, the fall of the popular Ms Berejiklian might be the best example he could find of the risk of a person's reputation being shredded by ICAC, even before any finding, or subsequent charges.
At some recent stage, she was questioned in secret again. It appears both from the terms of reference, and from some Treasury documents leaked against her that the biggest question mark was whether she had been entirely straightforward with the commission earlier when she had insisted that she had performed no favours for her secret boyfriend. I have remarked before that Berejiklian is not on trial, even for being less than straightforward. But it is an offence - the common or garden one of perjury - to lie to ICAC and over the years a few real villains - think Eddie Obeid for instance - have been convicted of this in the criminal courts. But a secondary problem about being less than straightforward - indeed being in total denial - is that it can undermine the credibility of the whole story one is telling, and sometimes suggest consciousness of guilt.
It has sometimes happened that ICAC witnesses - even ones who have been previously taken through their evidence in private - are asked to explain documents they thought had been destroyed, taped telephone conversations recorded under warrant, or telephone records showing a continuing contact when that had been denied. There will be other witnesses, such as public servants who processed a grant application, who may be anxious to demonstrate that their own behaviour was exemplary, but that they felt under pressure to produce a particular result because it had been made clear that the minister was interested in the outcome, perhaps a particular outcome. Such evidence may not be designed to implicate Berejiklian so much as to exonerate others, but it may have that effect anyway.
I am not suggesting that these are fates awaiting Ms Berejiklian. But she will be giving evidence in a situation she cannot help but know to be publicly unattractive. It is all very well for politicians to say publicly words such that "everyone does it," or to deny secondary partisan purposes in the way the spoils of office are shared around the party. But, like a lot of other political tasks, including fundraising, meetings with donors, and dealings with some of the more reptilian lobbyists, they seem grubby, unappealing and not quite honest to ordinary members of the public who are not in on the joke. That is not necessarily because the public, locally or through the state, will not appreciate the impulse to provide some facility to a community at the urging of the local member. The problem arises when there were many other worthier projects under consideration, many of which were rejected simply because there was no benefit for the government.
Ms Berejiklian may not be confronted with colour-coded spreadsheets, of the sort used (at Commonwealth level, with sports rorts and the car-porking. But she could well be put to explaining the magnificence of one grant, say to Maguire's electorate, compared with the failure of some other project, rated highly by independent bureaucrats. In the process, moreover, she could be asked very, very embarrassing questions about why paperwork for some grant schemes had been shredded, and whether the absence of a good documentary record could suggest consciousness of impropriety. A few of her federal colleagues may wince as they see her subjected to such cross-examination, because they have used similar formulas of words in deflecting questions in federal parliament, though secure in the knowledge that there is no way, as things stand, they can be called to account.
MORE JACK WATERFORD:
From Scott Morrison's point of view, the fall of the popular Ms Berejiklian might be the best example he could find of the risk of a person's reputation being shredded by ICAC, even before any finding, or subsequent charges. It is much to be doubted whether an ICAC-style hearing involving any one of his ministers could excite much of a feeling of regret, let alone of having been cut down in mid-stride. Certainly not himself.
But the allegations against Berejiklian have been about for some time, and translated into a hearing room might not so easily induce only sympathy and sense of tragedy. First, Ms Berejiklian has already milked the trope of the simple deceived lover; even her admirers would concede that she was also the premier of the state, and a formidable and somewhat cynical - even worldly-wise - faction leader. Sooner or later some members of the public will ask how all of these images co-exist without some extensive media management.
It is not moreover only with grants to causes associated with Maguire that her judgment has been strongly questioned. ICAC has not made other alleged conduct part of the formal terms of reference, but is at liberty, if it wants, to consider what she has done through a prism of her general office administration, and long histories of patronage and favours. It may well be that some of these should rank as peccadillos compared with the antics of John Barilaro, or, in the federal sphere, Barnaby Joyce, Paul Fletcher, Christian Porter, and even the words and actions - and compulsive secretiveness of Scott Morrison himself. But that is not necessarily the point, if the conduct up for review is difficult to pretend to represent as a proper exercise of public stewardship with a close and patient eye for probity and the public interest.
If Morrison anticipates that Ms Berejiklian will be flogged at ICAC, he must also be wondering how he would fare under a similar inquisition. For once he would not be able to bluster, dissimulate and mislead those who were listening, nor cut off questions, nor pretend that he was too busily engaged in higher, forward-looking policy to have to trouble himself with impertinent questions. A secret of Morrison's political survival has been the absence of forums where Morrison faces questions he cannot evade. That of course says something about the lack of forensic talent within the Labor Party, but it may well be that the electorate has by now seen sufficiently into the Morrison brick wall to be able to form a sensitive idea of his ethics, principles, sense of decency and honour. Honestly, it is not hard.
- Jack Waterford is a former editor of The Canberra Times and a regular columnist. email@example.com