Grattan on Friday: Gladys Berejiklian has governed well but failed an ethical test


Michelle Grattan, University of Canberra

If any other Australian leader had given the sort of evidence Gladys Berejiklian did to the Independent Commission Against Corruption on Monday, they’d probably have been out of their position by the end of the day.

The NSW premier was protected, in the immediate term, in part because the disclosures about her five-year secret relationship with the disgraced former Liberal MP Daryl Maguire seemed so bizarrely out of character with her unsullied past and apparent conservatism in her private life.




Read more:
Gladys Berejiklian determined to tough out scandal of secret relationship with disgraced former MP


Also, she has been a highly competent premier, especially during COVID. The pandemic fireproofed her.

Her political performance this year is certainly one reason the prime minister is standing with her. As Scott Morrison has said repeatedly, NSW has set the “gold standard” during the coronavirus crisis.

But Berejiklian’s personal and political reputation should not obscure the seriousness of her actions, or rather her inactions, in relation to Maguire.

She didn’t just make a bad judgment about a sub-optimal boyfriend which can be written off as having “stuffed up” her personal life. She made a series of decisions that were inappropriate.

When in 2015 she changed the nature of her relationship with the then member for Wagga Wagga from friendship to a “close personal” one, she failed to disclose this to colleagues.




Read more:
Brand Gladys: how ICAC revelations hurt Berejiklian’s ‘school captain’ image


Her supporters say her private life was no one else’s business. If her relationship had been with the plumber down the street who was unconnected with government, that would be absolutely correct. It’s another matter when those involved are a senior minister, who then became premier, and one of her party’s MPs.

The premier could affect the fortunes of the MP; the MP could use the relationship, even if undeclared, to further his own interests by suggesting he could deliver access.

As Berejiklian has said, there is nothing wrong per se with two members of parliament having a personal relationship. But, given the position of one of them, in this case it should have been put on the record – at least to cabinet colleagues.

When Maguire fell foul of ICAC in 2018, Berejiklian should have belatedly admitted to the relationship, informing senior colleagues, so there would be no time bombs. Certainly she should immediately have broken off the connection with Maguire, rather than continue it until this year, when he was back in ICAC’s sights.

Most compromising, however, is the material captured by phone taps of Maguire’s conversations with Berejiklian.

Maguire told her of his lobbying for developers. The activities referred to might not have been illegal – Berejiklian makes the point MPs are allowed to engage in business – but for any premier they would be very uncomfortable.

Berejiklian certainly seemed uncomfortable and on two occasions said “I don’t need to know”.

She explains her apparent dismissiveness of what Maguire was saying as boredom with his big-noting. It sounded, however, more like she did not want him to give her information she preferred not to receive. She had a deaf ear to clues she should have picked up.

Imagine the reaction if Morrison had given such evidence, or been embarrassed by such tapes. People would not be looking for reasons to excuse him.

The line that everyone makes mistakes in their private life – “people have all made personal decisions I’m sure they regret, that’s human”, Morrison says – won’t wash.

Berejiklian can be forgiven for initially being taken in by Maguire. But persisting with the relationship after he was found out is surely harder, if not impossible, to justify, regardless of her explanation he was in a “very dark place”. After all, she removed him from the Liberal Party and pushed for his resignation from parliament in 2018.

To maintain that different, tougher standards are applied to women leaders may often be true, but it doesn’t fit this instance. If anything she is being given a softer run.

Morrison has said “it would be a bit of a numpty of a decision” to replace her.




Read more:
Scott Morrison pledges ‘absolute support’ for Gladys Berejiklian


Former prime minister Malcolm Turnbull praised her integrity and said: “Her leadership of this state has been tried and tested in the toughest circumstances this year, from the bush fires to now the pandemic and she has excelled.” And, he pointed out, “Let’s be frank – leaders of her calibre are not easily found.”

If the point is that the alternatives on offer – and it is not clear who would become leader if she went – wouldn’t do as good a job, that might be a valid argument on strictly utilitarian grounds (although if she survives, this scandal will make it much more difficult for her to govern effectively).

When you compare the way the NSW and Victorian governments have handled the pandemic, NSW has been way ahead (the Ruby Princess debacle notwithstanding).

Yes, she would be hard to replace. But this should not be confused with a clear-eyed view about the ethical shortcomings in her behaviour over Maguire.

In recent decades we’ve seen declining trust in political institutions. The pandemic has led people to reattach to these institutions and all Australian leaders – Morrison and the premiers – saw their ratings rise.

What we don’t yet know is whether trust in general will again plummet when the pandemic subsides.

If politicians seem to be holding their noses when there’s the whiff of impropriety or corruption in the air, they are trifling with the public’s trust in them and in the political system. They are treating the electorate with disdain.

The ICAC hearings this week have reinforced the case for a federal integrity body. But the reactions of Liberal politicians show why they want it to be relatively toothless.

It is not being suggested Berejiklian, whose leadership hangs by a thread, has personally engaged in wrongdoing; her appearance at ICAC was as a witness in an investigation into Maguire’s alleged wrongdoing.

But on what we have heard this week, she has fallen short of the standards that should be expected of a premier. Federal and state colleagues who are defending her are being tribal or expedient or both.




Read more:
The long history of political corruption in NSW — and the downfall of MPs, ministers and premiers


The Conversation


Michelle Grattan, Professorial Fellow, University of Canberra

This article is republished from The Conversation under a Creative Commons license. Read the original article.

The long history of political corruption in NSW — and the downfall of MPs, ministers and premiers



Dean Lewins/AAP

David Clune, University of Sydney

New South Wales Premier Gladys Berejiklian has become ensnared this week in the sensational ICAC hearings into alleged corruption by former MP Daryl Maguire — and suddenly finds her future very much in doubt.

In yesterday’s hearing, Maguire admitted to using his parliamentary office and resources to conduct private business dealings, including receiving thousands of dollars in cash as part of a visa scam.

Meanwhile, Berejiklian, who has denied any wrongdoing by maintaining a personal relationship with Maguire even after he was forced to resign as MP, has faced calls from the Opposition for her to resign.




Read more:
Brand Gladys: how ICAC revelations hurt Berejiklian’s ‘school captain’ image


Whether Berejiklian will be forced to step down remains to be seen. But it’s becoming clearer by the day that, at the very least, her reputation will be seriously tarnished by the explosive revelations.

Berejiklian is hardly the first NSW politician to become enmeshed in scandal.

Corruption has been ingrained in the political culture of NSW, from the days of its founding in the 19th century. This is the very reason the Independent Commission Against Corruption was formed in 1988 — and why it remains a vital watchdog over the inner workings of state government.

Maguire told ICAC he accepted ‘thousands of dollars’ as part of a cash-for-visa scheme.
ICAC

A corrupt old town

Before NSW began governing itself in 1856, the colony was run for many years by the upright, dedicated and incorruptible Colonial Secretary Edward Deas Thomson.

With a fully elected parliament and premier, however, things changed. And democratic politics attracted corruption from the beginning.

Historian John Hirst said that after 1856,

to conservatives it appeared as if the government had been debased into a giant system of corruption with needy ministers and members bound together by their joint interest in plunder.

Politics then (and now) was a honey pot: needy, greedy ministers and MPs were always looking to benefit from public works, jobs, development and government contracts, as well as through the manipulation of the criminal justice system.

NSW has also always had a sleazy subterranean network of fixers and door-openers who could influence decisions for the right price.

Sydney has traditionally been thought of as a corrupt old town. Whether this was because of its buccaneering origins in the convict era or because it was where all the action took place has long been an open question.

A few of NSW’s not-so-finer moments

The colony’s early days set the stage for a long history of political and public corruption. Among the more notable episodes:

ICAC is formed — and then brings down its founder

In response to the storm of corruption allegations in the Wran years, Liberal Premier Nick Greiner created the Independent Commission Against Corruption (ICAC). The new body had wide powers, a broad anti-corruption brief and iron-clad independence.

Ironically, Greiner was an early victim of the new body. In 1992, it found him guilty of corruption for appointing renegade Liberal MP Terry Metherell to a senior public service position to allow the government to regain his safe seat.

The finding was overturned by the courts on appeal and most today would agree that Greiner had acted corruptly in only a technical sense. (He had not benefited personally and in the pre-ICAC era, this would have been seen as an astute bit of politics.)

Greiner’s political career ended in 1992 after ICAC expressed concerns over his integrity.
DAN HIMBRECHTS/AAP

Greiner’s downfall was a vivid indication of the seismic shift that had taken place in NSW politics to try and rid the state of corruption.

The previous “nudge, nudge, wink, wink” era of political favours was gone. A problem could no longer be fixed with the right contacts and right sum of money, and turning a blind eye to improper behaviour by “mates” was no longer acceptable.

Everyone in the public sector was on notice that corrupt dealings would be investigated and punished and offenders publicly shamed.




Read more:
History repeats: how O’Farrell and Greiner fell foul of ICAC


ICAC itself comes under scrutiny

In 2012-13, ICAC investigations exposed former minister and power-broker Eddie Obeid’s extraordinary influence on the Labor governments of Morris Iemma and Kristina Keneally and the insidious tentacles of the Obeid family’s covert business empire.

Then, in 2014, Liberal Premier Barry O’Farrell resigned after falsely denying to ICAC he had received a bottle of expensive wine from an associate of Obeid’s, who was lobbying for a valuable government contract.

Barry O’Farrell resigned over his inability to remember being gifted a $3,000 bottle of wine.
DAN HIMBRECHTS/AAP

O’Farrell admitted to a massive failure of memory but was cleared of any wrongdoing by ICAC. Nonetheless, he took the honourable course and resigned.

In recent years, ICAC itself has come under scrutiny. In 2015, it was accused of overreach, particularly in its pursuit of Deputy Chief Crown Prosecutor Margaret Cunneen.

David Levine, ICAC’s inspector and a former judge, harshly criticised the commission’s investigation of Cunneen, calling it “unjust, unreasonable and oppressive”.

Levine called the inquiry into Cunneen a ‘low point’ in ICAC’s history.
JOEL CARRETT/AAP

Reforms are brought in, but are they enough?

As a result, ICAC was restructured in 2016. The existing single commissioner was replaced by a panel of three — a full-time chief commissioner and two part-time ones.

A decision to proceed to a compulsory examination or public inquiry needed majority approval of the three commissioners. More emphasis was placed on procedural fairness in inquiries.

And the highly respected Supreme Court judge Peter Hall replaced Megan Latham as chief commissioner in August 2017.




Read more:
The ‘sports rorts’ affair shows the need for a proper federal ICAC – with teeth


Levine had also proposed abolishing public inquiries, which he said had resulted in the undeserved trashing of reputations.

He recommended an exoneration protocol for those who had a finding of corrupt conduct made against them but were acquitted in court, and judicial review of ICAC decisions.

These recommendations were rejected at the time, but they may be worth reconsidering — particularly if the inquiry into Maguire’s actions unfairly jeopardises Berejiklian’s premiership.The Conversation

David Clune, Honorary Associate, Government and International Relations, University of Sydney

This article is republished from The Conversation under a Creative Commons license. Read the original article.

Brand Gladys: how ICAC revelations hurt Berejiklian’s ‘school captain’ image



Dan Himbrechts/AAP

Mark Rolfe, UNSW

“Blindsided” is a word originally derived from American football and means to be hit from a totally unexpected quarter by shocking information. Unsurprisingly, it’s a word used often with the flashy US president, Donald Trump.

Until this week, it was not a word the people of New South Wales associated with the modest, determined and workaholic Gladys Berejiklian. This is the premier who has enjoyed a public approval rating of between 59% and 70% for her handling of coronavirus.

‘Close personal relationship’

In an appearance before the NSW Independent Commission Against Corruption (ICAC) on Monday, Berejiklian admitted to a “close personal relationship” with Daryl Maguire, the former Liberal member for Wagga Wagga who resigned from NSW Parliament in 2018.

Daryl Williams leaving an ICAC hearing in 2018.
Former Wagga MP Daryl Williams appeared also before ICAC in 2018.
Erik Anderson/AAP

Two years ago, he was targeted by ICAC for allegations he was using his public office for personal gain through commissions for Sydney property projects. Since then, we have found out he may have been involved in a “cash for visas” scheme.




Read more:
Gladys Berejiklian determined to tough out scandal of secret relationship with disgraced former MP


This was the person the premier had a “close personal relationship” with for five years until recently. Former Labor leader Bill Shorten said what many were thinking when he told Channel Nine:

She’s a smart lady who I think has been punching below her weight with perhaps a much more average guy.

A lightening strike

So, what transpired on Monday was like a lightning strike from a clear blue sky. This jolted people to hurried conclusions, including calls from NSW Labor leader Jodi McKay for the premier’s resignation to predictions her political future was doomed.

Screengrab of Gladys Berejiklian at the ICAC hearing on Tuesday.
Gladys Berejiklian game evidence during the ICAC hearing into Daryl Maguire on Monday.
Supplied/ICAC

Unless something more eventuates from the ICAC hearings — which will continue this week — we haven’t heard evidence of Berejiklian using her public position for some private gain.

At this stage, she is guilty of bad political judgement and bad personal judgement, the latter of which she shares with the rest of us on occasions.

Brand Gladys

The damage at this point is to her hitherto squeaky clean reputation. Berejiklian’s story had always been about hard work, as well as her immigrant family history.

We got some indication of her drive from a 2019 interview, when she spoke of her twin sister, who didn’t survive birth:

It was just luck that I came out first. Imagine if you had a twin; you came out first, they didn’t make it, I feel like I’ve got to justify my existence by sacrificing. So I don’t care if I’m not happy all the time. I feel like I’ve got to work hard.

Until this week, the premier has always been an intensely private person who even talked in media interviews of her dedication to a political career that came at the expense of a personal life and marriage. All fair enough.

Quick verdicts

However, the sudden revelations have catapulted many to quick verdicts about Berejiklian’s career prospects, while bringing out the armchair psychologist in us all.

We wonder about the secret life of this 50-year-old woman, who retains the air of the captain that she was at high school in North Ryde. She told no one about this relationship, not even her own, very close family.

So, this can’t help but make us ask: what other information is she not sharing?

Support from colleagues

At the moment, Berejiklian is being supported by her colleagues. As a member of the moderate faction, she is possibly under threat from the right of the party, but importantly, Treasurer Dominic Perrottet was by her side on Monday.

NSW Premier Gladys Berejiklian in a press conference at NSW Parliament.
The NSW Premier will continue to face questions over her relationship with former MP Daryl Maguire.
Dan Himbrechts/ AAP

This conservative faction leader backed the premier continuing in her job and with good reason. Any undermining of her leadership would threaten the current factional peace, publicly confirm there was something amiss with Berejiklian, and give the public the impression that the bad old days are back with revolving door premiers.

And all in the middle of a pandemic.




Read more:
NSW Premier Gladys Berejiklian avoids a spill but remains in troubled waters


On Tuesday, Berejiklian apologised to the party room. So far, the public criticism is limited to MPs such as conservative backbencher, Matthew Mason-Cox, who has form as a rogue operator.

But Berjiklian’s image will not be same again

So, it gets back to Brand Gladys.

Until ICAC finds something more about her, she should survive this episode with the backing of her party, unless another surprise eventuates in the future.

But her rather perfect public image will never be the same.The Conversation

Mark Rolfe, Honorary associate, School of Social Sciences, UNSW

This article is republished from The Conversation under a Creative Commons license. Read the original article.

The ‘sports rorts’ affair shows the need for a proper federal ICAC – with teeth



AAP/Mick Tsikas

Yee-Fui Ng, Monash University

While Sports Minister Bridget McKenzie has been forced to resign over the “sports rorts” affair, the matter is far from settled. It’s likely to feature heavily in parliamentary debate in the coming days.

One of the outstanding issues is the very different findings by the Audit Office report and by the review undertaken by the head of the prime minister’s department, Phil Gaetjens. Scott Morrison has said he will not release the Gaetjens report, so we can only go on the quotes Morrison read from it in his press conference announcing McKenzie’s resignation.

Gaetjens found McKenzie had breached the ministerial standards due to her conflict of interest in failing to disclose her membership of a gun club that received funding. At the same time, he absolved the government, as he “did not find evidence” the allocation of grants was “unduly influenced by reference to marginal or targeted electorates”.




Read more:
The ‘sports rorts’ affair shows the government misunderstands the role of the public service


In contrast, the auditor-general concluded that the “award of grant funding was not informed by an appropriate assessment process and sound advice”, and was contrary to principles of merit.

So, what is the status of the prime minister’s department compared to the auditor-general? And how would this have played out differently with a federal Independent Commission Against Corruption (ICAC)?

How was the affair handled by government?

The auditor-general is an independent officer of parliament, with the mandate to audit government finances. The position is independent from government and reports to parliament.

Alongside other integrity officers, such as the ombudsman and information commissioner, the auditor-general forms an important part of the Australian integrity framework. Their job is to hold government to account. They have significant coercive powers to compel documents and persons, which is essential to expose government wrongdoing.

The integrity officers have brought to light many examples of government maladministration. Yet they cannot compel government to change its practices – they only have the power of publicity and recommendation.

By referring the sports rorts affair to the prime minister’s department to investigate, the government is essentially conducting an internal investigation.

The department is under the full control of the prime minister. Like all senior public service executives, the department’s secretary, Gaetjens, is on a fixed-term contract without employment security.

The heyday of the mandarin is over. Departmental secretaries in the 1950s and 1960s had permanent tenure. By contrast, recent governments have been in the habit of sacking departmental secretaries and installing their allies in the positions.

This means an investigation by the auditor-general is far more independent than one by the secretary of the prime minister’s department. The auditor-general is independent of government. Unlike the Gaetjens report, his report is publicly published and tabled in parliament.

What would have happened with a federal ICAC?

A former NSW auditor-general has claimed a federal ICAC would have investigated the sports grants scandal.

So, how might this incident have played out if there was a federal ICAC?

First of all, it depends which version of a federal ICAC we are talking about. Federal Attorney-General Christian Porter has proposed a watered-down model of a Commonwealth Integrity Commission (CIC).

The threshold for investigation by Porter’s CIC model is high. It requires a reasonable suspicion of corruption amounting to a criminal offence before an investigation can even begin. It is doubtful the sports rort affair can meet this very high bar of suspected criminality.




Read more:
The proposed National Integrity Commission is a watered-down version of a federal ICAC


So it is unlikely the proposed CIC will even have the power to investigate this issue.

Even if the CIC could investigate, it would not have the power to conduct public hearings or make findings of corruption.

On the other hand, if a federal ICAC “with teeth” is implemented, it is more likely to have the power to investigate this alleged maladministration of public funds.

A strong federal ICAC would have the power to hold public hearings. It could more fully ventilate all issues surrounding this matter.

There have been broader questions about the alleged involvement of the prime minister’s office in the handling of the grants that remain unanswered. The prime minister has denied any such involvement.

A strong federal ICAC would have been able to compel ministers, public servants and ministerial advisers to give evidence. This would paint a better picture of political interference in Sports Australia’s decision-making.

A strong ICAC investigation would be far more independent than that of a departmental secretary, and its final report would be public. It would also be able to make findings of corruption, which could then be prosecuted in the courts.

How can things be improved?

McKenzie has resigned, which is emblematic of ministerial responsibility. The minister has taken the hit based on her failure to declare her conflict of interest.

But the Gaetjens finding that there has been no political interference in the sports grant allocation is rather convenient for the government.

Gaetjens’ conclusion was also flawed in stating that political considerations were not “the primary determining factor”.

The question was never whether partisanship was the primary determining factor: political considerations should not have been a consideration at all in awarding the grants. As the ministerial standards say: ministers must not take into account irrelevant considerations.

It would have been better if a truly independent body, such as a strong federal ICAC, conducted the investigation to assuage all doubts.

Another major issue is the interaction between the minister and Sports Australia, an independent statutory corporation.

Some jobs have been taken out of the hands of politicians and given to government corporations such as Sports Australia. This is to avoid the partisan interference and short-termism that characterises modern politics. An example is letting the Reserve Bank set interest rates, rather than politicians.

Yet, in this situation, the minister interfered with Sports Australia’s legal decision-making.

My research has shown government corporations set up by statute, such as Sports Australia, are subject to a high level of parliamentary, financial and legal accountability. They should thus be given the freedom to operate in keeping with their statutory mandate.

We still have work to do to tighten up rules to ensure the probity of procurements and grants. We also need to clarify the roles of ministers in relation to statutory corporations like Sports Australia. Only then can we say we have resolved the issues arising from the sports rorts affair.The Conversation

Yee-Fui Ng, Senior Lecturer, Faculty of Law, Monash University

This article is republished from The Conversation under a Creative Commons license. Read the original article.

The proposed National Integrity Commission is a watered-down version of a federal ICAC


Yee-Fui Ng, Monash University

The federal government has announced it will establish a Commonwealth Integrity Commission. This new commission will be the peak body to detect and investigate corrupt and criminal behaviour by Commonwealth employees.

This announcement followed mounting pressure from Labor, the Greens and independent MPs, who argued that a national integrity commission was vital to rebuild trust in Australian democracy.




Read more:
Government agrees to national anti-corruption body – with strict limits


On November 26, independent MP Cathy McGowan introduced a private member’s bill for the introduction of a national integrity commission, further increasing the pressure on the government.

All Australian states have anti-corruption commissions, and the federal government is lagging behind in this area.

Why do we need this commission?

The case for a national integrity commission is strong.

Australia has fallen steadily in Transparency International’s global corruption index, from eighth place in 2012 to 13th this year.

More alarming is the fact that one in 20 Australian public servants said in a survey last year that they had seen a colleague acting in a corrupt manner. This figure has doubled in the past three years.

Moreover, a Griffith University survey has found strong public support for a national integrity commission, with two-thirds (67%) of Australians in favour of one.

What will the commission look like?

The commission will be an independent statutory agency led by a commissioner and two deputy commissioners. It will have two divisions: a public sector division and a law enforcement integrity division.

The Australian Commission for Law Enforcement Integrity will be reconstituted as the law enforcement integrity division with an expanded jurisdiction. But its jurisdiction will be limited to certain departments and agencies dealing with law enforcement and those that have coercive powers, such as the Australian Securities and Investments Commission.

The public sector integrity division has a broader coverage. It includes public service departments and agencies, parliamentary departments, statutory agencies, Commonwealth companies and corporations, Commonwealth service providers and any subcontractors they engage, as well as parliamentarians and their staff.

Is the proposed model adequate?

The proposed model is a watered-down version of an anti-corruption commission, with limited powers.

The Commonwealth Integrity Commission will have the power to conduct public hearings only through its law enforcement division.

Conversely, the public sector integrity division with the broader remit will not have the power to make public findings of corruption. Instead, it will be tasked with investigating and referring potential criminal conduct to the Commonwealth Director of Public Prosecutions.

This is a far more limited jurisdiction compared to its equivalent state counterparts, such as the New South Wales Independent Commission Against Corruption (ICAC), which has the ability to conduct public hearings and make findings of corruption in the public sector.

Although it is envisaged that the Commonwealth Integrity Commission will play a role in preventing corruption, this model lacks a dedicated corruption prevention division. This is a pro-integrity function that monitors major corruption risks across all sectors.




Read more:
Australians think our politicians are corrupt, but where is the evidence?


There are also other activities that do not amount to corruption, but nevertheless show an undue influence on government. Ideally, a federal anti-corruption commission should sit alongside a broader package of reforms that impose stronger rules on lobbying and political donations, as well as a code of conduct for MPs, policed by an independent commissioner.

This would form an interlocking political integrity system that would keep politicians honest.

The government is taking submissions on the proposed model for the Commonwealth Integrity Commission.

It is commendable that the government is finally taking action on anti-corruption measures. However, it is important to get the model right. The proposed model is an improvement on the status quo of patchwork regulation, but does not go far enough to properly investigate corruption in federal government.The Conversation

Yee-Fui Ng, Senior Lecturer, Faculty of Law, Monash University

This article is republished from The Conversation under a Creative Commons license. Read the original article.