Matthew Butera

Oct 7, 2021

4 min read

Explainer: Gladys Berejiklian and the ICAC

The week just passed saw Gladys Berejiklian, one of the most recognisable figures in Australian politics, resign. This move follows revelations that New South Wales’ anti-corruption commission, the ICAC, was investigating whether she had “breached public trust” in awarding grants to several community organisations between 2012 and 2018.

Since then, I’ve been surprised at the level of criticism that has been directed towards the ICAC. The most flaming hot-takes have labelled the ICAC as a “lynch mob”, “undemocratic”, and most dumbfoundingly, “potentially eroding public trust” and “getting rid of Premier’s”. Our Deputy PM compared it to the Spanish Inquisition (a three-century religious inquisition where between 3000 and 5000 people were executed).

Anyway, to me, it seems clear there’s a few of us who do not know what ICAC does, what it’s doing concerning Ms. Berejiklian, and the important role it plays in upholding democracy. So, I thought I’d write a little explainer on the situation to hopefully provide some clarity.

Who is the ICAC, and what is its job?

The NSW Independent Commission Against Corruption (ICAC) is the anti-corruption agency that covers the entire public sector, including politicians, their staff, and government agencies. Its main job is “to investigate, expose and prevent corruption involving or affecting public authorities and public officials”.

What are some of the extraordinary powers that help ICAC do its job?

ICAC does its main job of investigating, exposing, and preventing corruption by undertaking investigations. Like a Royal Commission, these investigations can involve interviews, private and public hearings (where witnesses are cross-examined, like in typical courts), and even covert phone surveillance. ICAC can also compel witnesses to provide evidence. Following the investigation, the ICAC delivers a report outlining the facts of the case and determining whether the individuals under investigation have engaged in corrupt conduct. They conclude with recommendations as to how similar processes can be avoided in the future and can even recommend criminal proceedings.

What powers does ICAC not have?

ICAC cannot sack a Premier. There are only a few ways for a Premier to lose their job:

  • They can resign.
  • They can be replaced as the leader of their party.
  • They can lose their seat at the election.
  • They can be sacked by the Governor.

Instead of sacking Gladys, the ICAC announced that she was now the subject of an investigation. In response, Ms. Berejiklian resigned.

What’s going on with Gladys?

It is important to note that ICAC has not made any findings of Ms. Berejiklian. They simply announced that she would be the subject of an investigation.

That investigation follows reports from the ABC last year, when Ms. Berejiklian was Treasurer, regarding a $5.5m grant awarded to the Australian Clay Target Association clubhouse and convention centre in Wagga Wagga. At the time, Daryl Maguire was the Member for Wagga Wagga. Prior to the grant’s approval, Mr. Maguire wrote to the then Treasurer, asking for her support to fund the project. During a public ICAC hearing last year, Ms. Berejiklian revealed that she and Mr. Maguire had been in a relationship for the previous five years, including the period surrounding the Australian Clay Target Association grants.

In light of this, the ICAC is investigating two things. Firstly, the possibility that Ms. Berejiklian was involved in the decision to award funding to Mr. Maguire’s electorate while failing to disclose their relationship, which could potentially be a “breach of public trust” and “partial exercise of her official duties”.

Secondly, the ICAC is investigating whether Ms. Berejiklian possibly had knowledge of Mr. Maguire’s unrelated, and now confirmed, corrupt conduct. If she did and failed to report it, she would potentially be in breach of Section 11 of the ICAC Act. Section 11 compels her to report any matter where there is a reasonable suspicion that corrupt conduct has occurred or may occur. Ms. Berejiklian strenuously denies any wrongdoing regarding all of the matters in question.

Side note: Daryl Maguire admitted using his public office to make money for himself and his associates, while MP for Wagga Wagga (the absolute definition of corruption).

Why did Gladys resign if she didn’t have to?

Ms. Berejiklian was not sacked or forced to resign by the ICAC. In similar circumstances, when ICAC has been investigating her Ministers, Ms. Berejiklian has compelled them to temporarily stand aside during the investigation. Instead of doing the same, Ms. Berejiklian resigned entirely, not only as Premier but as a Member of the NSW Parliament. Her reason for this was that New South Wales needs a stable government as it emerges from COVID-19 lockdowns.

Former NSW Liberal Minister Michael Yabsley, who was an NSW politician when the ICAC was first established, questioned the need to resign, saying that temporarily stepping aside during the investigation would be appropriate. Either way, it’s a big deal.

Should the ICAC have waited?

There have been suggestions that ICAC’s “timing” is problematic given NSW is about to emerge from COVID-19 lockdowns, citing the need for a stable government during such an important period. However, to wait, according to Constitutional law expert Anne Twomey, would require the ICAC to make political judgements and give preferential treatment. It is suggested that such actions would violate the ICAC’s independence, kind of nullifying the whole “Independent” Commission Against Corruption

What next?

From Monday, October 18th, the ICAC will hold ten days of public inquiries to gather further evidence regarding the investigation.

Regarding the NSW Government, a new Premier was selected. Former Treasurer Dominic Perrottet was chosen by Liberal MPs as the new NSW Liberals leader and state Premier. There will also be a by-election (an election for just one seat rather than for the entire government) in Ms. Berejiklian’s seat of Willoughby in Northern Sydney.