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Private conduct, public interest

16 October 2020

I’ve done nothing wrong, says the NSW premier. But in the grey zone of conflicts of interest, is that enough?

Right:

Too good to lose? NSW premier Gladys Berejiklian during question time yesterday. Dominic Lorrimer/Sydney Morning Herald/AAP Image

Too good to lose? NSW premier Gladys Berejiklian during question time yesterday. Dominic Lorrimer/Sydney Morning Herald/AAP Image


Faced with a no-confidence motion in parliament on Wednesday, NSW premier Gladys Berejiklian claimed the moral high ground. “I know the people of this state know I have done nothing wrong. I never have and I never will.” It was an overpitched and reckless assertion. Moral hubris can be a fatal flaw in some of the best political leaders, and caused the downfall of two of her predecessors in a state where corruption has eaten into the fabric of government over several decades.

Berejiklian’s association with Daryl Maguire has been a ticking time bomb for the Independent Commission Against Corruption over the past three years. As the Financial Review’s Neil Chenoweth reports, investigators have known of the taped conversations between the pair since 2017, but the thought of destabilising yet another serving premier, having cost former premiers Nick Greiner and Barry O’Farrell their jobs, was enough to “bring them out in a cold sweat.”

Berejiklian’s obvious distress at the revelations drew some sympathetic first responders, who pointed to her strong record in steering through the bushfire crisis and then the pandemic. Transport minister Andrew Constance, interviewed on Seven’s Sunrise on Tuesday morning, reported a flood of messages from the community “saying she is too good to lose.” By Wednesday afternoon, the chorus on social media was swinging the other way.

It’s one of those situations in which guilt and innocence — and public opinion — become polarised and political alignments kick in to intensify the situation. And it’s supercharged by the NSW context: there’s no getting away from the fact that corruption has infected both sides of politics in that state. Anyone taking on the premiership, given how things played out in the era of Eddie Obeid, should surely be aware of how easily corruption can spread. Obeid may have been a superspreader, but the virus became cultural and systemic.

Because it carries the assumption of immunity, Berejiklian’s moral hubris puts her in a high-risk category. Even while she was in the throes of dealing with the Covid-19 lockdown, she seems to have been unaware of the need for distancing in other ways.

Her appearance before ICAC on 12 October began with a set of questions about conflict of interest posed by counsel assisting, Scott Robertson. The line of inquisition bore on Maguire’s position as parliamentary secretary — a tenure Berejiklian renewed when she became premier in January 2017 — in which his fundamental obligations included “not being in a position of conflict of interest.” It’s possible to have a conflict of interest without being corrupt, of course, but conflicts of this kind, kept secret, are what allow corruption to take hold and be transmitted. People who believe they hold to strong ethical standards may find they are not, after all, immune.

If the principle is poorly understood in the Australian political context, this is because it isn’t in the interests of parliamentarians to understand it. Some conflicts of interest may be purely technical, after all, which could make the rules of disclosure seem unreasonably constraining. Why pull out of a legitimate business activity, refuse a financial opportunity or break off a relationship when you are convinced you are doing nothing wrong — and the law itself would find it hard to prove any impropriety?

Since it is hard to hold anyone to account for conflict of interest alone, the embargo is almost impossible to enforce. It is only when the exploitation is flagrant that consequences are likely, and even then, they will be slow in coming, with ample opportunity to contest the case.

This is not to argue that Berejiklian gained any advantage from her relationship with Maguire. On the contrary. But although they may not cost her the premiership, the revelations have done permanent damage to her reputation.

Of equal or perhaps greater importance than the premier’s destiny is the future of ICAC itself. Sky News host Alan Jones has already been on the airwaves calling for the commission to be “on the rack” instead of the premier. The backlash will certainly intensify if Berejiklian is brought down, though the conduct of the inquiry displays no signs of “the cold sweat” Chenoweth alludes to. Robertson has been a model of calm and courtesy, patiently teasing out details and pressing on key points of admission with an insistence that is never aggressive or obviously adversarial.

Behind the skilfully structured lines of questioning lies a wealth of forensic evidence, gathered over months and years, and sorted and double-checked in preparation for a public hearing. Such work costs money, and requires legislative authorisation for effective forms of investigation to be pursued.

And that, ironically, requires the support of the governments who may be the target. As David Hardaker pointed out in Crikey on Wednesday, Berejiklian had a conflict of interest as the head of a government being urged to increase funding for ICAC even as it was investigating someone with whom she had an undisclosed relationship. Victorian Liberal MP Michael O’Brien has raised similar concerns about delays in the Independent Broad-based Anti-corruption Commission’s inquiry into the Victorian government’s handling of the pandemic. “It’s no surprise Daniel Andrews doesn’t want to fund this important integrity agency,” he says.

The American miniseries The Comey Rule offers important insights into the fraught relationship between governments and the institutions charged with responsibility for holding them to account. What has happened in the United States under Trump should be an urgent warning to other nations: democracies are less robust than we have come to assume. While Berejiklian is proclaiming her own uncompromising dedication to “the people of New South Wales,” the staff of ICAC, working invisibly in the background, may be the truer servants of the public good. •

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On their own: students gathering in Sydney to protest against fee changes and funding cuts. Louise Kennerley/Sydney Morning Herald

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