Did Gladys Berejiklian Breach Her Legal Obligation to Report ‘Possible Corruption’?

New South Wales residents are polarised over whether Premier Gladys Berejiklian should resign after admitting to a long-term, secret personal relationship with disgraced former MP Daryl Maguire during which the pair discussed the latter’s questionable business dealings.

The narrative put forth by parts of the mainstream media appears to be that the Premier’s personal life and poor relationship choice should not prevent her from continuing in her position.

But, perhaps the real question is: Did Ms Berejiklian know about, or at least turn a blind eye to, her partner’s potentially corrupt conduct, and breach her duty under the law to report it?

The ICAC hearing

A week of extraordinary evidence before the ICAC, including intercepts of phone conversations and text messages between the pair, along with Ms Berejiklian’s statements under oath that she cannot recall the conversations and does not know one of the developers being referred to (well-known Liberal party donor Iwan Sunito, with whom she was photographed), along with her defensive and at times aggressive attitude towards those asking legitimate questions have many suspicious about her state of knowledge – especially given that she and Mr Maguire were in a ‘close personal relationship’ for five years; one which continued even after Maguire was hauled before the ICAC in 2018.

Telephone intercepts

The telephone intercepts establish beyond any doubt that Ms Berejiklian was aware that Mr Maguire sought payment over a property deal during his tenure as MP for Wagga Wagga..

That conduct can be said to have amounted to an abuse of his position as a parliamentarian, and ultimately forced him to resign from the NSW parliament in 2018.

One of the exchanges between the pair is as follows:

Mr Maguire: “…good news. One of my contacts sold a motel for $5.8 million I had put her in contact so I should make $5k ”. 

Ms Berejiklian: “Congrats!!! Great News!! Woo hoo.”

And a phone conversation from 2017, Mr Maguire talks to the Premier – not for the first time – about his land deal at Badgerys Creek.

Mr Maguire: “William tells me we’ve done our deal so hopefully that’s about half of all that gone now,” Maguire said down the line, referring to the deal and paying his debts,

Ms Berejiklian: “that’s good”, pausing momentarily before adding: “I don’t need to know about that bit.”

Mr Maguire. “No you don’t … you do not.”

Documents show that Ms Berejiklian had dinner at Mr Maguire’s Wagga Wagga home with a business associate he partnered with to run a cash-for-visa scheme, despite telling ICAC earlier in the week that she was ‘shocked’ to hear of the scam.

Under examination, Mr Maguire repeatedly told the ICAC that he tried to protect the Premier from knowing too much, and that he knew that some of his activities could place her in a position of conflict.

Corruption offences in New South Wales

Part 4A of the Crimes Act 1900 (NSW), being sections 249A to 249J, contains several offences relating to corrupt conduct in our state.

In relation to the conduct alleged against Mr Maguire, section 249B of the Act makes it a crime punishable by a maximum penalty of 7 years in prison for any agent to corruptly receive or solicit – or agree to do so – any benefit (including any money):

(a) as an inducement or reward for or otherwise on account of:

(i) doing or not doing something, or having done or not having done something, or

(ii) showing or not showing, or having shown or not having shown, favour or disfavour to any person,

in relation to the affairs or business of the agent’s principal, or

(b) the receipt or any expectation of which would in any way tend to influence the agent to show, or not to show, favour or disfavour to any person in relation to the affairs or business of the agent’s principal.

Section 249A makes clear that an agent includes ‘any person serving under the Crown’, which extends to Mr Maguire.

But what is ‘corrupt conduct’?

Section 8 of the Independent Commission Against Corruption Act 1988 (NSW) (the ICAC Act) sets out the conduct that amounts to corruption under the law.

Such conduct includes, but is not limited to:

• any conduct of any person (whether or not a public official) that adversely affects, or that could adversely affect, either directly or indirectly, the honest or impartial exercise of official functions by any public official, any group or body of public officials or any public authority, or
• any conduct of a public official that constitutes or involves the dishonest or partial exercise of any of his or her official functions, or
• any conduct of a public official or former public official that constitutes or involves a breach of public trust, or
• any conduct of a public official or former public official that involves the misuse of information or material that he or she has acquired in the course of his or her official functions, whether or not for his or her benefit or for the benefit of any other person.

Mr Maguire was a ‘public official’ at the relevant time.

Duty to notify the ICAC of possible corrupt conduct

In relation to the questions surrounding Ms Berejiklian, section 11 of the ICAC Act imposes ‘a duty to report to the Commission any matter that the person suspects on reasonable grounds concerns or may concern corrupt conduct.’

This legal obligation applies to, among others, ‘a Minister of the Crown’, which includes Ms Berejiklian.

Premier’s denials

For her part, Ms Berejiklian has repeatedly denied any knowledge of the various business dealings of Mr Maguire, going so far as to say she does not recall the conversations and text messages played to her in the ICAC.

Putting aside her apparent ‘lack of interest’, there remain irregularities in the evidence given to ICAC.

For example, when Ms Berejiklian was asked about prominent Sydney property developer Iwan Sunito and  played a phone conversation between her and Maguire during which the then-Wagga Wagga MP referred to a looming meeting request with him, she told ICAC she had no recollection of ever having met him, that she did not know who he was and did not recall the conversation.

But one of Australia’s major newspapers has since published a photograph of Mr Sunito and Ms Berejiklian together in late 2017.

ICAC also heard that in October 2017, the Premier travelled to the NSW Riverina, the home of Mr Maguire’s electorate where she met two convicted criminals to discuss “gaming issues”.

State of knowledge

As the evidence mounts, some of Ms Berejiklian’s testimony to ICAC shows a distinct lack of consistency. Some of it could be determined as showing ‘wilful blindness’, a legal term used to describe a deliberate decision not to question, or seek further information about information that may be suspicious.

While there is currently no direct accusation of any wrongdoing on the part of the Premier by ICAC, the shadow of doubt casts long over her at this point in time. While Ms Berejiklian has spent the week insisting that she has done nothing wrong except’ trust the wrong man’ and fail to judge his character properly, but otherwise she insists on no wrongdoing.

it’s only possible to speculate how much longer this audacious cry for sympathy over her troubled personal life will garner her support.

For now, her party is backing her. But one thing remains blatantly obvious: Ms Berejiklian deliberately hid her close personal relationship with Mr Maguire, a man whose potential for corrupt conduct was well known as the cause of his political downfall in 2018 and who is now before ICAC for a second time.

The relationship has now been exposed in an embarrassingly public way, and both her reputation and integrity have been called into question.

Only time will tell whether or not she can retain the confidence of her party, and the residents of New South Wales.