Sep 25, 20233 min read

Berejiklian’s ICAC Legal Arguments “Struggle to Pass the Pub Test”

Updated: Oct 2, 2023

Former NSW Premier,Gladys Berejiklian, has launched a legal challenge against the NSW Independent Commission Against Corruption's (ICAC) finding that she engaged in "serious corrupt conduct." Experts have warned that the legal challenge is unlikely to succeed.

ICAC found that Ms. Berejiklian had breached public trust by failing to declare a personal conflict of interest in relation to funding for two organisations: the Australian Clay Target Association (ACTA) and the Riverina Conservatorium of Music. ICAC also found that Ms. Berejiklian had failed to report suspicions that her former partner, Daryl Maguire, had engaged in corrupt conduct. Ms. Berejiklian is not being considered for criminal prosecution.

The ICAC investigation was known asOperation Keppel and investigated former Liberal MP for Wagga Wagga, Daryl Maguire, to determine if he had leveraged his parliamentary position for personal benefit.

The final report from the investigation was repeatedly delayed, with ICAC citing the complexity of the case and the extent of evidence, including nearly 3000 pages of transcript and nearly 1000 submissions, as the cause of the delay.

Director of the Centre for Public Integrity and a former counsel assisting to ICAC, Geoffrey Watson, said the challenge was a judicial review. This entailed that its scope was narrower than a direct appeal and was unlikely to succeed:

“A charge like this is very confined, really only to an error of law…There have been many challenges of this kind to the decisions of ICAC. Very, very, very few of them have succeeded.”

Ms. Berejiklian’s judicial review will cover thirteen grounds, many of them of a technical legal nature. One element is the argument that, as Premier, the code of ministerial conduct did not apply to her as she was “the arbiter and could not also be subject to it.”

Mark Forbes, director of the reputation and crisis management firm, Icon Reputation, described how for clients who come to his firm due to critical media coverage who are seeking to sue, he advises against it:

“Almost without exception we advise against court action, as it ensures another round of media coverage on the issue they want to disappear and creates an opportunity for the airing of further damaging testimony and documents, with success never guaranteed… Just look at Ben Robert-Smith’s defamation action against Nine over his alleged involvement in atrocities… It resulted in a devastating and financially crippling defeat. Court cases never come cheap.”

Mr. Forbes also claimed that even if Ms. Berejiklian were to succeed in her legal challenge, it would not result in complete vindication:

“The arguments her legal team are making, including that conflict of interest rules should not apply to premiers, would struggle to pass the pub test…If the case fails, it puts a severe dent in her future ambitions. The key steps in reputation recovery are acknowledgement, apology and actions demonstrating changed ways.”

Ms. Berejiklian has been supported in her legal challenge by her colleagues, including Matt Kean and former NSW Liberal Party President, Philip Ruddock, who expressed that she should follow her legal advisors:

“My view is that she has access to some of the most senior legal advice, namely Bret Walker SC. It’s her reputation. If I was her I would be guided by the legal advice.”

Ms. Berejiklian is now reportedly in a relationship with barrister Arthur Moses SC but sources speaking to The Guardian claim he has not urged her to appeal. Ms. Berejiklian's legal challenge is expected to be heard in the NSW Court of Appeal on the 9th of October.

Ms. Berejiklian was appointed as Optus’ Managing Director for Enterprise and Business in February of 2022. Optus has commented that the ICAC findings have not affected her position and that they “predate her time.”