What Happened to the ICAC’s Corruption Investigation of Gladys?

The New South Wales watchdog against corruption in government agencies has come under fire over its ‘endless delays’ in completing the investigation into alleged corrupt conduct by former Premier Gladys Berejiklian. 

The Independent Commission Against Corruption (ICAC) has released a statement saying its findings into the probe of the former premier – including her failure to disclose her ‘secret’ relationship with disgraced former MP Daryl Maguire while she was state leader – are not likely to be released until after the state election, due to be held on 25 March 2023. 

The delay and timing have called into question whether the ICAC is as politically ‘independent’ as it is required to be under its enabling legislation, the Independent Commission Against Corruption Act 1988.

Unexplained “complexities” cited as reason for delay

The Commissioner undertaking the task, Ruth McColl SC, has cited “complexities” as the reason why delays continue – the report was expected late last year, and while it’s important that ICAC makes a fair and a balanced judgement in line with the law, it also needs to do so in a timely way. This is the third time the deadline has been delayed. 

There have been many occasions whereby the lack of funding and resources given to ICAC have been noted. It is tasked with a very important role – but it also has an obligation to the public to work effectively and efficiently – not to do so has the potential to undermine public confidence in its ability to perform its duties. 

The public’s right to know 

Operation Keppel began as an investigation into the former Wagga Wagga MP Daryl Maguire. 

However, after it was revealed that Mr Maguire and Gladys Berejiklian had a “close personal relationship” over several years, that no one knew about, the inquiry broadened its scope to investigate whether Ms Berejiklian broke the law by failing to report some of Mr Maguire’s conduct during his time in office, and while she was Premier. 

The allegations included her failure to disclose a conflict of interest when planning the M9 Outer Sydney Orbital; a project in relation to which Mr Maguire stood to obtain a financial benefit from.

During hearings into Mr Maguire’s business dealings during his time as MP of Wagga Wagga ICAC played numerous telephone conversations intercepted between the pair during which Mr Maguire discussed at length his financial situation and business endeavours.

Questions were raised about whether Ms Berejiklian was aware of – or at least wilfully blind to – her partner, who was also a party colleague at the time, potentially misusing a position of public office because she failed to do anything about it. There are also allegations of breaching public trust. 

Ms Berejiklian has repeatedly denied any wrongdoing. She resigned from her role as Premier when ICAC announced its investigation into her conduct, and has since taken a role with telecommunications company Optus. 

The public has a right to know whether Ms Berejiklian’s conduct broke the law. 

Pork Barrelling 

News of her relationship with Mr Macguire, along with her ‘cavalier’ attitude towards pork barrelling, as well as the destruction of notes by her office which explained how grants were allocated (an action that was later determined to be illegal, although no charges were laid), certainly marred Ms Berejiklian’s time as leader of New South Wales and did, in the eyes of many, scar her reputation.  

Pork Barrelling is defined as the ‘appropriation of government spending for projects for partisan political purposes’ and it has been used by politicians for years. Although in recent times, we’ve seen ‘pork barrelling’ allegations levelled at politicians at a state and federal level. 

At least Ms Berejiklian’s attitude towards pork barreling was honest. In speaking to media at the time the controversy erupted over the allocation of the funds within the NSW $250 million council grants program, she admitted that grants may have shored up Coalition votes, and was a common political practice. 

Many other politicians, particularly some involved in the Sports Rort scandal in 2020 have tried to hide, cover-up or shift blame. Pork barrelling is sometimes referred to as the ‘misuse of public funds’ –  it’s not illegal, but many voters do think it’s unethical. 

ICAC determines that pork barrelling can be illegal in some circumstances 

ICAC determined last year that pork barrelling can constitute corrupt conduct and has called for much stricter rules on grants.

While the report dealt with the issue of pork barrelling in general terms, it did note that: 

“In circumstances where pork barrelling is serious and wilful, it may constitute conduct so far below acceptable standards as to amount to an abuse of the public’s trust in the office holder, such that criminal punishment is warranted. 

ICAC also stated that “in issuing this report, the commission intends to make it clear that ministers and their advisers do not have an unfettered discretion to distribute public funds. The exercise of ministerial discretion is subject to the rule of law, which ensures that it must accord with public trust and accountability principles.

ICAC has not accused Ms Berejiklian of any misconduct and she has not been charged with any offences.    

Darryl Maguire charged 

Mr Maguire on the other hand, has been charged with one count of conspiracy to provide false document or information relating to non-citizens, which is an offence under section 234 of the Migration Act 1958 that carries a maximum penalty of 10 years in prison.

The matter has been adjourned for the charges against Mr Maguire to be certified. In the meantime, and he has been granted bail subject to strict conditions. 

The evidence given at the ICAC inquiry is not admissible in subsequent criminal proceedings.