Serious corruption but not criminal. How does that work?

KEY POINTS:The ICAC has ruled former NSW Gladys Berejiklian engaged in “seriously corrupt conduct”.The ICAC has not called for the prosecution of Ms Berejiklian.Ms Berejiklian resigned when the ICAC announced she was under investigation.

Gladys Berejiklian engaged in “serious corrupt conduct” as NSW treasurer and premier, but should not face criminal charges.

That’s the ruling of the state’s anti-corruption watchdog – the Independent Commission Against Corruption (ICAC) – in its long-awaited report released on Thursday.

But the ICAC does want advice on whether a criminal case should be launched against Ms Berejiklian’s former secret partner, disgraced MP Daryl Maguire, who it also found had acted corruptly.

Daryl Maguire could yet face criminal charges after the ICAC’s ruling. Source: AAP

It’s 2021 announcement that the then-premier was under investigation prompted Ms Berejiklian to resign “against every fibre of her being”.

It took 18 months for the ICAC to hand down its final report, a delay which led her former colleague Matt Kean to claim Ms Berejiklian was the subject of a “public political lynching”.

Not all corruption is criminal

AJ Brown from Transparency International Australia, an anti-corruption advocacy group, stressed that “corruption is not always criminal”, and said there was a public interest in exposing the impact public figures’ undeclared interests had on their decision-making.

“We have clear evidence now and findings that the premier herself failed to declare important interests,” he said.

“She turned a blind eye or worse to the evidence she had that her then-boyfriend was engaging in corrupt activity. She compromised decision-making processes as a result of her undeclared personal interest. Those things are also clearly corruption.

“Just the fact that the precise circumstances of that mean that a criminal charge isn’t justified or is unlikely to succeed, doesn’t mean that it shouldn’t be recognised and identified as corrupt conduct.”

Mr Brown said the report confirmed the ICAC did have the “right powers” to pursue corruption effectively.

“They really must, in circumstances like this, conduct this kind of inquiry transparently for there to be public confidence in it. That’s been done,” he said.

Mr Brown accepted delays in releasing reports could corrode public confidence, saying “every effort should be made to speed up all parts of those processes”.

But he said this delay was possibly the result of the ICAC being under-resourced.

“I very much doubt that the quality of the inquiry is something that people should be having any second thoughts about,” he said.

Aj Brown says it was vital for the hearings to be held in public. Source: AAP

Ms Berejiklian was not obliged to resign once the investigation was announced, but she had previously stated that any cabinet minister under the ICAC’s lens should step aside as the probe played out.

She accepted an indefinite absence was not feasible for a premier when she stepped down.

“When the premier elected to resign rather than persist, it was already based on evidence which pretty clearly indicated that her position was fairly untenable politically,” Mr Brown said.

“We’ve got a report that now confirms that she made the right call politically, but also by the people of NSW.”

‘Kangaroo court’

But others have warned public hearings held by the ICAC unfairly tarnish reputations, sometimes without delivering adverse findings against a subject.

Former prime minister Scott Morrison famously claimed the NSW ICAC was a “kangaroo court”, as he resisted calls for a federal equivalent to hold public hearings.

High-profile Sydney barrister Margaret Cunneen stressed the ICAC was not a court but a body of investigators “analogous to the police”.

Police do not routinely make details from ongoing investigations public, nor are police interviews made public before they go to court.

Speaking hours before the ICAC delivered its report on Thursday, Ms Cunneen said the “personal nature” of the evidence meant Ms Berejiklian’s hearings should have been held behind closed doors.

That should have been followed by a “very discreet” finding being published, she suggested.

“It’s really quite inhumane,” she told 2GB Radio.

“One wonders why people have to be masked with this stain of suspected corruption, years and years and years before anything is ever found against them.”

Ms Cunneen was herself publicly named as the subject of an investigation by the corruption watchdog in 2014, before the High Court ruled the ICAC had exceeded its authority.

She said her family had been “very, very badly damaged” by the ICAC’s conduct.

“Some people just think this is so embarrassing, so intolerable – physically and psychologically – [that] I just have to leave, I just have to go,” she said.

“But I knew I hadn’t done anything wrong, and at that time, I had no idea what it was supposed to be all about.”

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