NSW court upholds validity of ICAC investigation of Gladys Berejiklian.
Former New South Wales premier Gladys Berejiklian has lost her bid to overturn a report finding that she engaged in ‘serious corrupt conduct.’
The Independent Commission Against Corruption handed down its report last year, following an investigation into Berejiklian’s decisions to greenlight two projects in Wagga Wagga. That seat was held by fellow Liberal Party MP Daryl Maquire, with whom she had an undisclosed personal relationship.
The former premier asked the Court of Appeal to overturn the report because it was made “without or in excess of jurisdiction, and is a nullity.”
Assistant Commissioner Ruth McColl played a primary role in ICAC’s investigation, including in drafting a report. However, when the final report was made, McColl’s term had expired. Berejiklian argued that because McColl was no longer part of ICAC, it did not have the jurisdiction to report that she engaged in ‘serious corrupt conduct.’
This judicial review application sought to invalidate that report. As judicial review applications are narrower in scope, she had to challenge it on a point of law, rather than the facts presented in the report.
ICAC is part of the executive branch of the government. The Court of Appeal is part of the judiciary. Ordinarily, the separation of powers means that the judiciary cannot interfere with a decision made by the executive, and vice-versa.
Judicial reviews are an exception to this rule. The ‘point of law’ requirement respects the separation of powers.
Chief Justice Bell and Justice of Appeal Meagher referred to Justice Brennan in Attorney-General (NSW) v Quin (1990) to define the question of the point of law here as being about “the extent of power and the legality of its exercise.”
If the court found that the report was made outside ICAC’s jurisdiction, then ICAC would have to carry out a new investigation. But it doesn’t mean that this new investigation can’t come to the same conclusion of ‘serious corrupt conduct.’
This executive/judicial distinction is why ICAC findings don’t immediately lead to prison time. ICAC has broader investigative powers, including ways of attaining evidence and what can count as evidence. Because they don’t have any punitive powers, they don’t have to worry about the restrictive requirements of the rule of law.
ICAC can even cause problems for courts, because the government can decide to prosecute the subject of the investigation, on the advice of ICAC. But a lot of the evidence used by ICAC to find someone as ‘corrupt’ wouldn’t be available to a court in criminal proceedings. For that reason, ICAC findings don’t result in jury trials.
The two majority judges ruled against Berejiklian. Although the Chief Commissioner had delegated many powers and duties to McColl in this investigation, the court found that his “ultimate task included determining the findings, opinions, recommendations and reasons to be made or given in the report to Parliament.” This responsibility had not been delegated to McColl.
The report wasn’t presented on behalf of McColl. It was presented on behalf of ICAC as a whole, through the Chief Commissioner.
President Ward disagreed with the majority on this question. She emphasised that ‘making a report’ included “both preparing and furnishing a report,” under Section 107(4)(b) of the Independent Commission Against Corruption Act 1988 (NSW).
Because McColl assisted the Chief Commissioner in drafting a report, President Ward concluded that her involvement met that definition, and so the finding of ‘serious corrupt conduct’ was made ‘out of jurisdiction.’
Whereas President Ward believed that McColl’s involvement fell under the definition of ‘making a report,’ the majority referred to Section 104B, which allows the Chief Commissioner to “engage any suitably qualified person to provide the Commission with services, information and advice.”
McColl’s involvement, amongst other things, included assessments of the credibility of witnesses. The majority held that advice given under this section did not count as delegating the “ultimate task” of the Chief Commissioner, so it was not given ‘out of jurisdiction.’
12 weaker grounds of review were also advanced by Berejiklian, but were unanimously dismissed.
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