When Daryl Maguire phoned Gladys Berejiklian in 2018 to tell her he’d been summonsed to the Independent Commission Against Corruption did she realise that what she did next might cost her her career?
Did the former New South Wales premier consider that she might have information gleaned from their five-year secret relationship that she, as a public official, had a duty to report? Apparently not.
On Monday Berejiklian faced serious questions about whether she met her obligations the Icac Act to report “a reasonable suspicion of corrupt conduct” to either Icac or the head of her department of Premier and cabinet.
She did not contact either, a decision that, depending on what the commission finds she knew about Maguire’s alleged dealings, could lead to a finding of a serious breach.
Icac guidelines explain reasonable suspicion means “there is a real possibility that corrupt conduct is, or may be, involved. No proof is required.”
We’ve already heard tapped phone calls of Maguire telling Berejiklian he hoped to make $1.5m in commissions out of securing property rezonings at the new airport site at Badergy’s creek. This was while he was a serving MP in an electorate 400km from Sydney’s new airport site.
Berejiklian has given evidence this sum did not ring alarm bells for her. She told Icac she didn’t really believe him.
But she was told more than that, as we learned from phone taps played to the commission on Friday.
On the evening of 5 July 2018 the former MP for Wagga rang with a bombshell: he had been summonsed as a witness to Icac over an introduction he had made for a Chinese developer, Country Garden, to then mayor of Canterbury, Michael Hawatt.
An increasingly alarmed Berejiklian spent the 52-minute call trying to untangle exactly what Maguire was being called to Icac for.
He told her Icac was interested in an introduction he had made for Country Garden to a council 400kms from his own electorate. She commented that the people he was associating with were “dodgy”. He assured her he was just a witness.
He railed against Icac and said they could be listening now. They were.
Monday morning brought further grilling by counsel assisting Scott Robertson SC about Berejiklian’s state of mind and her suspicions after that call.
Berejiklian gave evidence she didn’t put two and two together with anything she had heard over the last three or four years. She did not “join the dots” about what had been revealed to her privately about lobbying for rezonings of land at Badgery’s creek and the Icac probe.
She did not suspect corrupt conduct. “I assumed he had been caught up in something,” she said.
Even after the 5 July call, she didn’t think she needed to inform Icac what Maguire had just told her because “Icac already knew”. As commissioner, Ruth McColl pointed out, she didn’t know what Icac knew or didn’t know. Still she didn’t suspect any corrupt conduct.
“My radar wasn’t going off,” she said. “I trusted him.”
The commission heard that in the days after 5 July, there were texts and calls in which Maguire urged Berejiklian to get another private phone and to communicate using the WeChat app, so that Icac couldn’t read or hear their communications.
She suggested WhatsApp might be easier and said she would try. She did not take up his advice, and said that she believed his requests were because of “privacy concerns,” rather than trying to avoid detection.
On 13 July Maguire appeared before Icac in Operation Dacha and the full extent of his involvement with Canterbury council became public. That inquiry was played phone taps of Maguire discussing his plans with business associates to seek payment for brokering property deals. The inquiry ultimately made no finding of corrupt conduct against him, but recommended he face criminal charges for giving false evidence.
That evening Berejiklian phoned her chief of staff, Sarah Cruiksank whom she described as “a close friend” and highly professional public servant, to tell her about the secret relationship with Maguire.
Cruikshank has given evidence that she was at dinner when the call came and did not take notes but she recalled Berejiklian telling her the relationship was “historical” and had ended when she became premier in January 2017.
Under questioning Cruikshank’s counsel on Monday, Berejiklian denied she had lied about its status to Cruikshank. “Two people could have different perceptions of the same conversation,” she said.
Of course, a current relationship would have had very different political ramifications.
Cruikshank, had she known the relationship was ongoing, would have no doubt swung into full damage control, telling Icac that if she had known the relationship was ongoing she would have discussed with Berejiklian “whether or not there were implications for things she had done” and told Maguire that Berejiklian should not be involved in decisions relating to proposals he was lobbying for.
The motivation behind Berejiklian’s obsessive secrecy about the relationship with Maguire is difficult to fathom.
After his evidence at Icac, she removed him from the ministry and sent him to the crossbenches, as is protocol.
But she made some poor choices. She did not seek any advice from Cruikshank or a lawyer on whether she had a duty to report what she knew to Icac, maintaining that she didn’t have any suspicions. In fact she kept in contact with him until September 2020.
She told Icac that she was “mortified” after he gave evidence, saying the “shock of what happened made me question everything” including whether Maguire might have lied to her.
Meanwhile, at least two staff members came forward in the days after Maguire’s evidence, to tell the head of the Premier’s department they needed to go to Icac to report what they knew about Maguire.
One of them was an adviser to the minister for trade and industry. The other had worked as an adviser to the minister for planning.
We do not know what they told Icac but the fact they had made disclosures was noted in two memos to the premier’s office which were tendered at the commission. Berejiklian saw at least one of these, noting on it: “the secretary’s role in this should be replicated for all future declarations.”
Still Berejiklian did not see the need to report anything to Icac herself.
Under intense questioning from Robertson, Berejiklian said she was “alive to her obligations” and that she had asked herself over and over whether she knew anything that should be reported to Icac.
She was not motiviated by a fear that the relationship would become public, and “No. Gosh,” she was not affected by her personal feelings toward him.
She just didn’t suspect anything.