“To err is human. To fail to see a conflict of interest that would be obvious to anyone not blinded by emotional entanglements is so common as to be a stock theme for theatre, film, music and literature.” HUGH SELBY offers consolation for Gladys Berejiklian’s loss before the NSW Court of Appeal.

I have a soft spot for former NSW Premier Gladys Berejiklian. She travelled by public bus, accessible to her voters, a sure indicator that power hadn’t gone to her head. 

Years ago I visited her electorate office and left with the sense that I and my issue had been properly considered by her staff. 

It was a much more positive experience than my dealings with other NSW entities that are supposed to be (but were not) client responsive and focused on investigating and resolving problems, such as the Ombudsman, the Crime Commission and the Law Enforcement Conduct Commission. Senior officers in each of those places misused their powers in ways that her office did not, but could have.

On Friday the NSW Court of Appeal dismissed her attempt to overturn the findings against her by the NSW Independent Commission against Corruption [ICAC] in June last year.

This was not an appeal in the well understood sense of an appellate court overturning what happened in a lower court. The Court of Appeal was limited to an examination of whether ICAC acted in accordance with the law that governs its investigations, findings and reporting.

Put simply, did ICAC stray outside its statutory remit as interpreted by skilled judicial minds?

The three-member court included the chief justice, the president of the Court of Appeal, and a full-time member of that appeal court. That’s about as good as it gets in legal oomph. 

At considerable length and with great skill they have considered the arguments, applied the law that politicians had made, and then found – pursuant to that law – that ICAC was right to find that Gladys acted corruptly.

But there’s another court – that of public opinion – that being amenable to the tried and true, and not bogged down in overreaching statutory drafting – can see the strength of her position that she was never corrupt: love potions can be enchanting or toxic. They distort a reality that is clear enough to those not under the spell.

This week’s decision reveals that the drafters of the ICAC law never turned their minds to the possibility that a powerful politician’s otherwise rational and responsible mind could be manipulated by her lover, Darryl Maguire, to his advantage.

The ICAC law and the Ministerial Code of Conduct

The ICAC law defines “corrupt conduct” by first making a claim that is so broad as to be embarrassing, but it doesn’t mention love. What we, the mug punters, would readily recognise as “corrupt activity” is now just a part of a much broader labelling. Here is the core part:

8.1  Corrupt conduct is—

(a)  any conduct of any person … that adversely affects, or that could adversely affect, either directly or indirectly, the honest or impartial exercise of official functions by any public official… or

(b)  any conduct of a public official that constitutes or involves the dishonest or partial exercise of any of his or her official functions….,or

(c)  any conduct of a public official … that constitutes or involves a breach of public trust…

That done, it then moves in 8.2 to listing a series of activities that are clearly corrupt, such as election fraud, collusive tendering, obtaining or offering secret commissions.

But that’s not all. There’s a supplementary requirement in section 9.1 that

Despite section 8, conduct does not amount to corrupt conduct unless it could constitute or involve—

(d) in the case of conduct of a Minister of the Crown… or a member of a House of Parliament – a substantial breach of an applicable code of conduct.

Apart from the ICAC Act Gladys was subject to the Ministerial Code of Conduct. That required she act only in the public interest, and must not act improperly for her private benefit or the private benefit of any other person (which would include Mr Maguire).

The Code also states that a conflict of interest must “not knowingly” be concealed from herself (as the then premier). The test for such a conflict is whether the “private interest” (in maintaining a close relationship with Mr Maguire) has the potential to influence the performance of her public duty (for example, in making decisions to fund or not fund a project that he was promoting).

It’s obvious that supporting funding decisions, not for their objective merit and ranking against other possible projects, but to please a lover: 

• is a good example of a conflict of interest that is caught by the Ministerial Code; 

• will adversely affect the proper allocation of public monies (8.1.a and c); and,

• will then lead to the improper use of those monies in that the wrong projects have been approved (also 8.1.a).

So obvious that a dispassionate reader, being someone not in the throes of love, might wonder why Gladys ever contested the inevitable findings of corrupt conduct.

Perhaps the answer is that putting “corrupt” and “passion” together is a step too far: love is not dirty, corruption is.

The findings of corrupt conduct by Gladys 

ICAC’s task per section 12A is: to direct its attention to serious corrupt conduct.

The judgment headnote summary sets out that ICAC made multiple findings of “serious corrupt conduct” by her:

• She had engaged in a “breach of public trust” by exercising her official functions in relation to decisions made concerning funding promised and or awarded to [two local organisations within Mr Maguire’s electorate] without disclosing her close personal relationship with Mr Maguire when she was in a position of conflict between her public duty and private interest. 
• She had engaged in the “partial” (as distinct from impartial) exercise of her official functions in relation to [funding decisions]. That partial conduct was exercising her official functions [when she was] influenced by her close personal relationship with Mr Maguire, and her desire to advance or maintain that relationship. 

• She had engaged in conduct which constituted or involved a dishonest or partial exercise of official functions. The specific conduct was the applicant’s failure and refusal to discharge her statutory obligation to report her actual suspicions that Mr Maguire’s activities in relation to three subject matters concerned or might have concerned corrupt conduct. Those subject matters were Mr Maguire’s relationships with particular property owners or developers, from whom it was said that Mr Maguire, with others, had the prospect of receiving commissions. (italics and bold added by the writer)

The grounds for review and the court’s response

Thirteen grounds were raised by her lawyers for the review by the Court of Appeal. Among them are the following two:

(5)   whether her non-disclosure of her personal relationship with Mr Maguire constituted a breach of public trust for the purposes of s 8(1)(c) of the Act; 

The response of the appeal court was that ICAC did not find that the applicant had breached her duty of public trust under s 8(1)(c) simply by not disclosing her relationship. The breaches of that provision as found by ICAC were that she had exercised her official functions while in a position of conflict of duty and personal interest.

and,

(13)  whether a finding that the exercise of official functions was “dishonest” for the purposes of s 8(1)(b) requires that the person the subject of investigation appreciated or realised that his or her conduct was dishonest according to the standards of ordinary people. 

To which the appeal court responded that there is no reason for construing “dishonest” in the ICAC Act other than in its ordinary sense. It follows that conduct is “dishonest” for the purposes of s 8(1)(b) when it would be regarded as such according to the standards of ordinary, decent people. It is not necessary that the accused have also appreciated or realised that his or her conduct would be regarded by such people as “dishonest”.

It was wrong, but not corrupt in the usual sense 

What was “the close personal relationship” between these two politicians? ICAC found that they were in a “close personal relationship”. This relationship, being “one of mutual love and a mutual close emotional connection”, had the “capacity… to influence” her conduct “both personally and in the performance of her public duties” (paragraph 11).

That’s a long-winded way of saying that love is blind.

To err is human. To fail to see a conflict of interest that would be obvious to anyone not blinded by emotional entanglements is so common as to be a stock theme for theatre, film, music and literature.

But that’s not a failure that of itself is corrupt as we normally use the word. Rather one can pity the actor and, depending upon a base line perspective, despise or envy the recipient for their manipulation of the actor.

We know what corruption is. It is purposefully seeking an improper advantage to oneself to benefit oneself. That is to be seen, for example, in Mr Maguire’s pressing “her to exercise her public functions in particular ways to support his causes, and that she responded accordingly. In doing so Mr Maguire had direct, immediate and informal means of communicating with the applicant and did so without any suggestion that there was some “boundary” between their personal or private lives and their interactions concerning the exercise by the applicant of her public functions” (paragraph 119).

It is corrupt to take a bribe. Money is not the only form of inducement. Equally it is corrupt to accept an appointment to a judicial office and/or to decide a case because of a prior agreement to misuse that office. Self-enrichment has tarnished the necessity for independence.

Our Gladys didn’t do any of that. 

If her blindness constitutes “corruption” then the folly and delight of love ensures that many, many decisions in public life are probably corrupt. It is irrelevant that at least one of the lovers may never have even considered the possibility of corruption. Bare “potential” has replaced proof of an act.

The law in NSW says so. The ablest of legal minds have analysed it. 

They have told us what it means.

It would be better if the law required a duty of disclosure whenever two public officials had had or were having a relationship that could adversely affect the ability of one or both to act independently and at “arms length”.

A failure to disclose should entail a presumption of “corrupt activity” that either or both officials could then lead evidence to rebut.

Our Gladys might have fared rather better under that approach.

Once upon a time, the late Barry Humphries would toss gladioli into the audience. Those of us who got one were more than happy to follow his instruction to proudly hold them aloft, a brilliant flower on a long stalk.

They did not wilt in his or our hands.

Oh, Gladys, hold your head high. Tis better to have loved and lost than never to have loved at all.

Former barrister Hugh Selby is the CityNews legal columnist. His free podcasts on “Witness Essentials” and “Advocacy in court: preparation and performance” can be heard on the best known podcast sites.

Berejiklian stays defiant despite corrupt finding loss