Gladys Berejiklian, ICAC: Lawyer fumes over delay to evidence

Gladys Berejiklian’s legal team is not happy the start of her evidence to a corruption inquiry has been delayed by 24 hours. 

Sophie Callan, a barrister representing the former NSW premier, has become increasingly combative as the Independent Commission Against Corruption investigation entered its second week of testimony.

Ms Berejiklian was due to front the ICAC probe into her on Thursday, but this has been delayed to Friday due to ‘investigative reasons’.

Ms Callan said she is seeking procedural fairness regarding the inquiry into whether or not Ms Berejiklian complied with a legal duty to report suspected corruption to the watchdog.

The former premier was in a secret relationship with disgraced Liberal MP Daryl Maguire between 2015 and 2018. 

Section 11 of the ICAC Act states that a NSW government minister and other public officials have a duty to report any matter the person suspects on reasonable grounds concerns or may concern corrupt conduct.

Ms Callan said Ms Berejiklian’s lawyers wrote to the ICAC asking for further information about this but had received a ‘wholly unsatisfactory’ response.

She said Ms Berejiklian was ‘entitled to know what it is that is alleged in respect of section 11’.

In reply, ICAC counsel Scott Robertson said ‘these proceedings are not a trial’ and the correspondence contained a ‘fundamental misapprehension’ about ICAC’s role, which is that it was seeking to find the truth and was not a prosecutorial body. 

Ms Callan added that the watchdog had received evidence from ‘seven men’ to date about whether Ms Berejiklian was in a position of conflict in light of her secret relationship with Mr Maguire.

She indicated Ms Berejiklian’s team would argue this evidence could not ‘rationally bear’ on ICAC Assistant Commissioner Ruth McColl’s assessment as to whether a conflict of interest in fact existed. 

Ms McColl, who is presiding over the inquiry, did not accept that ICAC needed to change the course its inquiry was taking. 

The ICAC is, in part, investigating if Ms Berejiklian engaged in conduct ‘liable to allow or encourage the occurrence of corrupt conduct’ by former Liberal MP Daryl Maguire, with whom she was in a secret relationship at the time. 

Gary Barnes, secretary of the Department of Regional NSW, is continuing his evidence at the ICAC on Wednesday, having previously given testimony last Friday.

He is giving evidence about a $5.5 million grant from the NSW government in 2016/2017 to the Australian Clay Target Association (ACTA), a gun club in Mr Maguire’s electorate of Wagga Wagga.

He agreed he was told that Mr Maguire ‘had the ear’ of then premier Ms Berejiklian.

Mr Barnes told the inquiry that he believed a staff member in the office of then deputy premier John Barilaro told him in 2017 that Mr Maguire was ‘well-regarded by the premier as a person that understood the bush as a Liberal Party person and that he had the ear of the premier’.

The ACTA grant was conditionally approved in December 2016 by the NSW government’s expenditure review committee (ERC), which was chaired by the then treasurer, Ms Berejiklian.

A month later she became premier, following the resignation of Mike Baird.

ACTA’s grant depended on having a satisfactory business case made as the initial business case submitted to cabinet was not strong enough.

The inquiry heard that the NSW government paid external consultants to update the business case. 

An invoice tendered into evidence recorded that the government spent $26,950 on the new business case. 

Mr Barnes agreed that Ms Berejiklian and Mr Barilaro’s offices asked for regular updates about gun club project, and that this was unusual. He understood there was strong interest in the project. 

Asked by Mr Robertson about the progress of the grant process, Mr Barnes said it was ‘Not my job to make any of the backbenchers happy’.

‘We would not want to keep someone happy,’ he added, unless things were done the right way.

Mr Barnes told the ICAC that the plan to upgrade the ACTA gun club was approved by government without a competitive process.

There was a ‘two-step process’ for funding projects from a government system called Restart NSW. The first step included a call for applications and a competitive process.

‘This was one of a few projects that was happening outside of that competitive process,’ Mr Barnes said.

In the second stage, projects seeking funding had to demonstrate a benefit to cost (BCR) ratio of at least one. 

Exceptions were made for projects such as funding for education and health infrastructure.

Funding for the Australian Clay Target Association depended on having a BCR of at least one.

Mr Barnes was also asked about a proposal for the state government to give funding millions of dollars to the Riverina Conservatorium of Music (RCM) in Wagga Wagga.

This second ‘case study’ at the centre of the ICAC’s inquiry was another project the then local MP Mr Maguire strongly advocated for.

Mr Barnes told Mr Robertson he believed there was an unsolicited proposal by 2017 for RCM to get a grant to relocate from a Charles Sturt University campus to a government-owned site.

The proposal included the construction of a ‘very lavish’ recital hall, he believed.

‘I didn’t think that gifting a government building … was a wise course of action,’ Mr Barnes said.

‘I did indicate that having access to a performance space would be something that I think was worth looking at down the track, but pretty much the two components, which were a world-class performance hall and creating commercial places or spaces, shouldn’t be something that government should focus on, at least initially,’ Mr Barnes said.

‘I didn’t think that that would be in the public interest,’ it would be ‘creating revenue stream for a third party,’ Mr Barnes said.

The conservatorium was a private not-for-profit body, not a government body.

Though the unsolicited proposal was rejected, the state government granted $10 million to the RCM to relocate to the site.

Mr Robertson said on Tuesday that evidence from Mr Maguire was being delayed by a day.

‘I don’t intend to call Mr Maguire tomorrow’ due to ‘investigative reasons,’ Mr Robertson said. This pushed Mr Maguire’s evidence to Thursday and Ms Berejiklian’s to Friday with the likelihood she will have to return on Monday.  

Tuesday’s ICAC proceedings started a half hour later than stated, probably due to legal discussions on what exactly ‘investigative reasons’ means.  

On Monday, Ms Berejiklian’s former deputy premier John Barilaro said she should have disclosed her relationship with Mr Maguire, whom he referred to as a ‘pain in the a**e’. 

Ms Callan, sought to turn the tables on Mr Barilaro, asking if he had disclosed relationships of his own.

Mr Barilaro said he ‘would have’ disclosed any relationships, including family links.

‘What about any other intimate personal relationships?’ Ms Callan asked.

‘That’s a hard question because my relationships are with my family,’ Mr Barilaro said

Daily Mail Australia is not suggesting Mr Barilaro has done anything improper in his personal or professional lives.

On Tuesday, ICAC heard from three former advisers to Ms Berejiklian. 

Neil Harley, a former chief of staff, said he spoke with Ms Berejiklian about her relationship with Mr Maguire after she was summonsed to give evidence at a different ICAC investigation last year.

‘It was a very difficult conversation for both of us,’ he said, adding that the former premier is ‘inherently a very private person’. 

‘We didn’t go into detail about when (the relationship with Mr Maguire) … commenced and when it finished,’ he said. ‘We talked in broad terms about the nature of the relationship.’ 

Another former chief of staff to Ms Berejiklian later told the ICAC that on Friday 13 July 2018 the then premier called her and told her ‘she’d been close in the past with Mr Maguire’. 

Sarah Cruickshank said she thought the call was unusual as Mr Berejiklian was on leave at the time.

It was the day it was revealed that Mr Maguire was a person of interest to ICAC. 

Brad Burden, a former director of strategy to then-premier Ms Berejiklian, was asked if he would have done anything differently about a funding proposal favoured by Mr Maguire if he had known about his relationship with the former premier.

He said the thought ‘advice would have been sought around any potential conflicts of interest and how to manage them’.  

Both Mr Burden and Mr Harley were adamant that Ms Berejiklain always behaved in a ‘principled fashion’ and was a ‘stickler’ for the rules.

She never treated Mr Maguire or his electorate any differently, they agreed under cross examination from Ms Callan. ‘Categorically no,’ Mr Harley said.

‘I cannot recall a single occasion when Ms Berejiklian raised with me either Mr Maguire or the Wagga Wagga electorate. Not a single occasion.’

Of the three senior former staffers who gave evidence on Tuesday, Ms Cruikshank was the only one who knew the pair had been in a relationship before October last year. 

ICAC counsel Scott Robertson asked if she was ‘quite clear’ in her mind that it was a historical relationship before Ms Berejiklian became premier? 

‘Quite clear,’ she replied.  

‘My recollection was she was telling me from the point of view that she was concerned as people might have seen her out with Mr Maguire,’ Ms Cruikshank said.

‘She said it was before she became premier and she said that a couple of times to me.’

Ms Cruikshank added: ‘I didn’t get the impression it was a full-blown intense relationship.’ 

Ms McColl asked Ms Cruickshank to expand on her evidence about when Ms Berejiklian told her she had been in a relationship with Mr Maguire. 

Ms Cruickshank agreed she believed Ms Berejiklian was being honest with her when she said in a phone call on July 13, 2018 that she had been in a ‘historical’ relationship or friendship with Mr Maguire but it had ended before she became premier in January 2017.

The ICAC subsequently heard that relationship started in 2015 and in continued until 2018. The pair remained in contact until 2020, the inquiry has heard.

‘She’d lied to you?’ Ms McColl said.

Ms Cruickshank said that was for the inquiry to decide.

She agreed she was ‘surprised’ when ICAC heard the relationship had not ended before Ms Berejiklian became premier.

One of Ms Berejiklian’s lawyers, Sophie Callan, SC, pressed Ms Cruickshank about whether it was simply her ‘impression’ that the relationship was historical, and not something Ms Berejiklian said to her. 

Ms Cruickshank denied that was the case. ‘She was categorically clear with me; it was before she was premier,’ she said. 

As she thought the relationship had ended some time ago, Ms Cruikshank said she and Ms Berejiklian did not discuss whether it needed to be disclosed given the controversy surrounding Mr Maguire.

‘I had no reason to suggest that she needed to do declarations,’ she said.  

Mr Harley told the commission he subsequently discovered the relationship had ‘continued on for a lot longer than I had anticipated’ and ‘it was more recent’ than he thought.

He said if he had previously known about the relationship, he and others ‘might have provided advice to her about how that situation could appropriately be managed’.

The ICAC also heard that in an email from August 20, 2018, Mr Harley said Ms Berejiklian wanted to ‘push’ a plan to award millions in funding for a recital hall in the Riverina Conservatorium of Music in Wagga Wagga. 

Mr Maguire had quit politics the previous month after giving evidence at an earlier ICAC inquiry, resulting in a by-election. 

The commission has heard the recital hall was one of the projects Mr Maguire had pushed hard for in the pursuit of funding.

Mr Harley said in the email to colleagues in Ms Berejiklian’s office that ‘I personally don’t want to push this project but the premier did’.  

Mr Harley added: ‘I have never, ever, in my time in politics, known a person more fiercely committed to public service, and serving the people of the state than Ms Berejiklian.’

That’s despite Mr Harley – who worked for the premier from 2017 and was her chief of staff from February 2020 until her resignation – admitting he had not supported one of the grants at the focus of the investigation, $20.5 million in funding for the Riverina Conservatorium of Music.

It was ‘a longstanding wishlist item’ for Mr Maguire, but the promise was made during the 2018 Wagga Wagga by-election after his resignation. 

‘NSW was deep in drought at this stage, and I felt that providing what was a substantial amount of money to the Conservatory of Music would not be well regarded by the community,’ Mr Harley told the ICAC.

He said he couldn’t remember how he knew the premier wanted the funding, only that at some point they had ‘the briefest of conversations’ about it.

However, Mr Harley said the project – ultimately ruled out after recent business case assessments – was not without merit.

‘My concern at the time was not about the nature of the project, it was about the nature of the announcement in the context,’ he said.

‘It’s important to note that after the by-election was lost and the new member for Wagga Wagga was elected, he himself made representations and has in fact met with me in my role as chief of staff, advocating for it.’ 

Ms Berejiklian denies any wrongdoing.