Gladys Berejiklian fails in legal bid to overturn corruption findings but dissenting judgment awards small win

Gladys Berejiklian has failed in a legal bid to overturn corruption findings in a 2-1 majority decision but a dissenting judgement has found the state’s anti-corruption watchdog acted beyond its powers by delegating to a consultant during preparations of the final report into the former NSW Premier.

The NSW Court of Appeal on Friday dismissed Ms Berejiklian’s application for a judicial review of findings she had breached public trust while in a secret relationship with disgraced former Wagga Wagga MP Daryl Maguire on 13 grounds, including that ICAC had delivered the Operation Keppel report in “excess of jurisdiction”.

But NSW Supreme Court Court of Appeal president Julie Ward made a dissenting judgment on the jurisdiction ground and said that ICAC had “impermissibly” adopted a consultant’s witness credibility statements in the final report and delegated responsibility to someone who did not have the necessary legislated power.

Ruth McColl was formerly an assistant commissioner but her term had expired before she was employed as a consultant by ICAC in late October 2022 during Operation Keppel.

Justice Ward said the making, preparation and furnishing of a report could only be performed by a chief commissioner or an assistant commissioner under the ICAC legislation.

In her dissenting judgement, Justice Ward said that ICAC acted beyond its authority and power and did not merely obtain Ms McColl’s services, information or advice but adopted her assessments in the final report.

“In those circumstances I respectfully cannot agree with the conclusion by the majority that the Commission in making its Report did not act beyond its authority or power,” she said.

“I consider that the Commission’s own report establishes that it did more than merely obtain services, information or advice from Ms McColl.

“It adopted Ms McColl’s assessments.”

Judge Ward said it was clear that Ms McColl had not completed a draft of the report as late as January 11, 2023, because ICAC released a media release on that date that said the consultant was working on the draft.

The draft report was received on February 8, was finalised around June 26 and was furnished to the State Parliament on June 29, 2023.

Justice Ward said she accepted that ICAC could draw on submissions in the preparation of the report but said the adoption of Ms McColl’s witness credibility assessments amounted to “being the relevant findings at least on aspects of the evidence given in the public hearings”.

“The conclusion as to a witness’ responsiveness in answering questions, for example, is in practice something most likely to be drawn from observation of the evidence being given rather than by reference, say, to a transcript of that evidence,” she said.

“Similarly, conclusions as to whether a witness was ‘dissembling’ must surely have been informed by observation of the witness giving evidence (something that only Ms McColl, not the Commissioners, was able to do).”

Judge Ward said it was clear that Ms McColl’s assistance went beyond “providing services, information or advice” in the making of the findings against Ms Berejiklian, something she could not do under the relevant legislation.

“The communication of Ms McColl’s findings as to witness credibility, in circumstances where those findings were explicitly adopted by the Commission, amounts in effect to a delegation of the Chief Commissioner’s task of determining all necessary findings in the making of the Report,” she said.

Justice Ward agreed with the remaining 12 conclusions drawn by Chief Justice Andrew Bell and Justice Anthony Meagher that dismissed the application for a judicial review.

Ms Berejiklian resigned on October 21, 2021 after admitting to her relationship with Mr Maguire during testimony before private and public anti-corruption hearings.

ICAC ultimately found that Ms Berejiklian had breached the public’s trust and engaged in corrupt conduct by failing to disclose her “close personal relationship” with Maguire when she sat on a cabinet committee considering millions of dollars worth of funding arrangements for his Wagga Wagga electorate.

Ms Berejiklian, as former state premier and treasurer, was involved in approving or supporting allocations of $5.5 million for the Wagga-based Australian Clay Target Association and $10 million for the Riverina Conservatorium of Music between 2016 and 2018.

In a carefully worded statement, Ms Berejiklian said any challenge to ICAC findings was “limited” and noted the legislation underpinning the watchdog did not permit a “merits review”.

“The dissenting judgment of the President of the Court of Appeal held that the report was beyond power and that the findings of ICAC should be quashed,” she said.

“Serving the people of NSW was an honour and privilege which I never took for granted.

“I always worked my hardest to look after the welfare and interests of the people of NSW.”