Telephone intercepts between former New South Wale Premier Gladys Berejiklian and her former partner, disgraced state MP Daryl Maguire have proved to be critical to the ICAC hearing over whether Ms Berejiklian engaged in misconduct by improperly intervening to approve a grant for a project without sufficient merit and failing to declare a conflict of interest in so far as she was in an intimate relationship with the person seeking the grant.
Under intense questioning, Ms Berejiklian remained composed and staunchly unrepentant, insisting that she has done nothing wrong, and that she treated all MPs ‘the same’.
But phone taps and intercepted text messages between Ms Berejiklian and Maguire tell a very different story.
In one of the recordings dating back to 2018, Mr Maguire was complaining to Ms Berejiklian that he had been cut out of millions of dollars’ worth of hospital funding for Wagga Wagga and Tumut.
“I’ll deal with it … I’ll fix it,” Ms Berejiklian promised. Later the same day, she spoke with Mr Magure again telling him “I’ve got you the Wagga hospital’ explaining she had instructed then treasurer (now Premier) Dominic Perrottet to include in the budget because “he just does what I ask him to”.
When Maguire pressed her on hospital funds for Tumut, Ms Berejiklian responded in exasperation: “I’ve now got you the $170 million in five minutes!”
In another exchange between the pair, Mr Maguire can be heard badgering Ms Berejiklian for more funds. “I don’t want to argue with you, I just need to go and chill because you’ve stressed me out,” she says.
“Alright, I’ll go and chill, you just throw money at Wagga,” Maguire replies.
“I’ll throw money at Wagga, lots of it, don’t you worry about that … you just have to do what’s right on your end, otherwise you’ll kill me,” Berejiklian says.
And in yet another call from 2018, Mr Maguire admits that he has been summoned by ICAC for an investigation into his business dealings. In this particular conversation, Mr Magure criticises the watchdog, and then joked:
“Big brother, you know, they can tap into every phone conversation there is, absolutely unfettered power,” Mr Maguire said. “They could be taping your conversation with me right now. You wouldn’t know.”
As it turns out, yes, the pair’s conversations were being monitored by ICAC.
The power of law enforcement agencies to intercept and record phone conversations
In New South Wales, two pieces of legislation outline the laws in relation to interception and access of telecommunications and the use of surveillance devices.
These laws, the Telecommunications (Interception and Access) NSW Act 1987, and the Surveillance Devices Act 2007 provide a framework for law enforcement agencies who use covert monitoring to collect evidence, including the Australian Federal Police, the Australian Crime Commission, the Police Force, the New South Wales Crime Commission, the Independent Commission Against Corruption (ICAC), and the Law Enforcement Conduct Commission (LECC).
Both pieces of legislation are closely modelled on similar Federal legislation. Law enforcement agencies must be successful in securing a warrant prior to intercepting communications, and monitored and recorded conversations can provide important evidence in investigations, such as the one conducted by ICAC.
A warrant will be granted if there are reasonable grounds for the suspicion or belief founding the application and the court will consider:
- The nature and gravity of the offence,
- The extent to which privacy will be affected,
- The existence of other alternate means of obtaining the evidence,
- How useful the information that could be obtained is likely to be, and
- Any previous warrant sought in connection with the same offence.
There are also provisions in the law for ‘emergency situations’ whereby a warrant is not required.
Significant body of evidence
In the ICAC inquiry, the taped conversations have provided a distinct body of evidence for investigators to consider as they determine whether Ms Berejiklian breached her duty under the ministerial code of conduct by failing to declare her relationship with Maguire, at the same time as facilitating the approval of significant multi-million dollar grants to Maguire’s electorate of Wagga Wagga.
ICAC is also investigating whether she turned a blind eye to corruption as a result of her relationship with Mr Maguire, who has himself been the subject of two separate ICAC inquiries.
Failing to declare the relationship is not a criminal matter, but it could be determined a breach of the Ministerial Code. A handful of other MPs, and also former Premier Mike Baird, have already testified before ICAC, with some suggesting that if they had known about the relationship between Ms Berejiklian and Maguire they would have handled grants to the Wagga Wagga electorate differently. Others also expressed the need for more safeguards in the system.
Misconduct in a Public Office
But there is also a more serious issue here, and that is whether Ms Berejiklian’s relationship with Mr Maguire led to favourable treatment of him, and exactly how much she knew about his dodgy business dealings, and failed to report them. This could amount to misconduct in a public office which is a criminal offence.
The offence of misconduct in a public office is a common law offence, which means it was developed by the courts over time rather than enacted in legislation. Unlike statutory offences, there is no maximum penalty for the offence of misconduct in public offence. Instead the penalty is ‘at large’, which means it is at the discretion of the court.