With slow, patient questioning, Icac starts to set out its case against Berejiklian

After weeks under fire for the timing of its investigation into the former premier, the NSW corruption watchdog has begun its reply

Early in his evidence to the New South Wales anti-corruption watchdog this week, Mike Baird was asked by the commissioner, Ruth McColl SC, to speak a little louder.

Called to the cramped confines of the Independent Commission Against Corruption’s witness box to give evidence against his friend and successor, Gladys Berejiklian, the former premier’s discomfort was obvious.

His answers were clipped, often monosyllabic. A transcript of the evidence picked up 37 separate uses of the affirmative “ah hmm”.

Afterwards, accosted by a scrum of reporters outside the watchdog’s headquarters, he made no secret of his uneasiness.

“I am devastated to be here giving evidence,” he said.

“Gladys is a close personal friend … I think she has the highest integrity.”

Former NSW premier Mike Baird speaks to media after giving evidence at the Icac on Wednesday.
Former NSW premier Mike Baird told the commission he thought Berejiklian’s relationship with Maguire should ‘certainly’ have been disclosed. Photograph: Dan Himbrechts/AAP

Yet, when asked by counsel assisting the commission, Scott Robertson, whether now-former premier Berejiklian should have disclosed her secret relationship with former Wagga Wagga MP Daryl Maguire, there was no mistaking his meaning.

He was “incredulous” when he heard about the “close personal relationship” during Berejiklian’s bombshell evidence to the Icac last year, he told Robertson. “Certainly I think it should have been disclosed.”

Berejiklian has emphatically denied any wrongdoing. When she resigned on 1 October she said: “I state categorically, I have always acted with the highest level of integrity.

“History will demonstrate that I have always executed my duties with the highest degree of integrity for the benefit of the people of NSW, who I have had the privilege to serve.”

Since that short, sharp statement, many column inches have been taken up with the argument that Berejiklian had been treated unfairly. As voters laid bouquets outside her Willoughby office, a seething commentariat accused the Icac of being drunk with power for announcing it had broadened its investigation into Maguire to include Berejiklian during a tumultuous point in the state’s Covid-19 outbreak.

The long list of ministers, millionaires and premiers who have found themselves on the wrong side of it over the years means the Icac has some powerful enemies, but with the ultra-popular Berejiklian the watchdog seemed to have bitten off more than it could chew.

Caught in his own political fight over a federal anti-corruption body, even the prime minister, Scott Morrison, was willing to take a swipe. The Icac was “a real problem”, he told breakfast TV. “It is not a model we have ever contemplated going at a federal level.”

This week, through Robertson’s slow, deliberate, almost meditative questioning, the Icac began its reply.

Paul Doorn returns from a break in giving evidence to the Icac hearing on Tuesday.
‘We didn’t think it stacked up’: Paul Doorn returns from a break in giving evidence to the Icac hearing on Tuesday. Photograph: Joel Carrett/AAP

In late 2016, a public servant in the office of sport, Michael Toohey, received an email from his boss, Paul Doorn: “Fancy a challenge?”

Doorn had been asked by a political adviser in the office of the then minister for sport, Stuart Ayres, to produce a submission to go before the expenditure review committee, a powerful sub-cabinet body chaired by the state’s treasurer, then Berejiklian. Toohey was told the submission was needed that day, a request both he and Doorn had never received before. “Extremely unusual,” Toohey called it.

The submission was for a shooting range and conference centre in Wagga Wagga, put forward by the Australian Clay Target Association. The $5.5m grant is now one of two at the centre of the probe into Berejiklian’s conduct.

It wasn’t the first the two public servants had heard of the project. Four years earlier, in 2012, Daryl Maguire had contacted the previous minister for sport seeking funding for it. The department listed it as the lowest of 15 priorities that it applied to treasury for funding to support, and it never went anywhere.

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Four years later, nothing had changed in the eyes of the bureaucrats. “We didn’t think it stacked up,” Doorn told the commission.

Toohey, too, was unimpressed. Supplied with a business case attached to the project, he quickly came to the conclusion that the document was “deficient”, with economic assumptions that were “somewhat optimistic”.

In his initial recommendation on the submission, he suggested that rather than fund the project, the government pay for a more rigorous feasibility case to be developed.

That recommendation was dropped though, after the draft submission was given to Ayres’ office. Instead, it became a recommendation to fund the project. Doorn agreed with Robertson that it would have been “career limiting” to continue pushing against the proposal.

At the same time, political staff were scrambling to get the proposal on to a busy end-of-year expenditure review committee agenda. The Icac heard evidence that to get a proposal on to the agenda at short notice, the minister would need to explain why it was “urgent and unavoidable”. Only the treasurer would be likely to approve it.

The bureaucrats were left in the dark as to why the proposal, which had been kicking around for years, had suddenly become urgent: “No information was sort of provided in that space just that it was clear that there was a level of urgency,” Doorn said.

For much of this week, Berejiklian, then the treasurer, was someone mentioned, but never heard from directly. She will not give her evidence until the end of next week, but the accounts given by witnesses and emails tendered to the inquiry suggest many within the bureaucracy and government saw her imprimatur on the shooting range proposal.

Stuart Ayres
Stuart Ayres told the commission he had no memory of speaking to Berejiklian about the Wagga Wagga project. Photograph: Dan Himbrechts/AAP

On 6 December, an email sent by Kent Broadhead, a bureaucrat in the department of premier and cabinet, said Ayres had “agreed” with the treasurer’s assessment that it should be listed on the committee’s agenda on 14 December of that year. Another public servant wrote in an email that Berejiklian had “expressed an inclination to support the proposal”.

A staff member in Berejiklian’s office at that time, Zacharia Bentley, remembered her being “amenable” to the project, and said it was unlikely that any of her advisers had pushed for the project to be dealt with urgently. “Like, we didn’t have a bone in the fight,” he said.

It was left to Nigel Blunden, then one of premier Baird’s top lieutenants, to speculate on what might have been going on. In an explosive briefing note written to Baird a few days before the proposal went to the expenditure review committee, Blunden quoted Tom Cruise’s character in the film Risky Business: “Sometimes you gotta say WTF,” he wrote.

When Blunden received Broadhead’s email on 6 December he was unimpressed, and sought to have the item removed from the expenditure review committee agenda.

“News to me seems like a lot of $$$,” Blunden wrote to other advisers at the time. He initially thought he had been successful, but a few days later the proposal was back on the list.

In his briefing to Baird, Blunden didn’t hold back in his criticisms of the grant, calling its economic benefit claims “suss” and that it was “against all the principles of sound economic management”.

He also had his theories about why the proposal had resurfaced. “Daryl fired up and Gladys put it back on,” he wrote. Both Berejiklian and Ayres “want” the project, he told Baird: “No doubt they’ve done a sweetheart deal with Daryl.”

Ayres was the only current politician within the NSW government to be called by the inquiry this week. But if there was any expectation the newly minted deputy leader of the Liberal Party might shed some light on what role Berejiklian played in securing the money, it was quickly dashed.

Icac assisting counsel Scott Robertson arrives at the hearing on Tuesday.
Icac assisting counsel Scott Robertson arrives at the hearing on Tuesday. Photograph: Joel Carrett/AAP

The MP told Icac that he’d first been approached about the shooting range project in 2014, but had at first rejected it. However a visit to the site in 2016 convinced him the project had “a lot of merit”.

Contradicting the evidence of the public servants, he said he had no memory of ever being told about concerns within the bureaucracy of the project’s merits, and told the inquiry he was “quite predisposed” to supporting it.

Perhaps most importantly, he said he had no memory of speaking to Berejiklian about the project.

As an interrogator, Scott Robertson, the University of Oxford-educated barrister who is leading the commission’s inquiry, has more in common with a boa constrictor than a brown snake. His questioning style is colourless to the point of being dull, a sort of unhurried, meandering process that can lull listeners into a belief he might genuinely be more interested in obscure cabinet processes than uncovering corruption.

But it’s an approach that often sees his interlocutor in the witness box unaware of the hole they’ve wandered into until they’re treading water.

Whether the Icac ties Berejiklian to the conduct of which she is accused – that she was involved in a breach of public trust by “exercising public functions” in circumstances where she had a conflict of interest because of her secret relationship with Maguire – remains an open question.

Next week the inquiry will hear from John Barilaro, who recently resigned as deputy premier and whose department eventually oversaw the grant after it was approved, Maguire, and, across two days, Berejiklian herself.

What Robertson’s questioning reveals will be crucial for all involved. After she quit, Berejiklian was almost immediately linked with a tilt at federal parliament, but any adverse findings against her would certainly make that unlikely.

For the Icac too, the stakes are high. A failure to establish a case against the former premier would increase the calls to bring the watchdog to heel.

An exchange early on Monday might offer a clue as to where the inquiry is going.

In his opening to the inquiry, Robertson played the commission an extract of private hearings held with Berejiklian in September. In the exchange, he pressed her on her suspicions about Maguire after he gave evidence at a separate Icac inquiry in 2018.

“I was in shock, I didn’t know what to think, I didn’t have enough detail, I can’t remember what I thought at that time,” Berejiklian said.

After Robertson repeatedly pressed her on whether she had suspicions that Maguire may have engaged in corrupt conduct, Berejiklian replied: “No.”

When the clip stopped, Robertson, in the same flat voice, said: “An issue arises as to whether this commission should accept that evidence.

“If not [it is open to it] to consider why Ms Berejiklian did not make a report to this commission concerning Mr Maguire.”


Michael McGowan

The GuardianTramp

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