NSW Premier’s Office Acted Illegally, But Won’t be Prosecuted

by Sonia Hickey & Ugur Nedim
Gladys Berejiklian Government

An investigation by the State Archives and Records Authority (the ‘SARA’) has found that the New South Wales Premier’s office broke the law when they shredded documents relating to $252 million in grants.

However, there is no indication any charges will be laid or that the premier or her office will be made legally accountable for their misconduct.

The law

The State Records Act 1998 (NSW) requires public officers to protect and retain a range of records.

Section 11 of the Act  is titled ‘Obligation to Protect Records’ and requires that:

(1) Each public office must ensure the safe custody and proper preservation of the State records that it has control of.

(2) A public office must ensure that arrangements under which a State record that it has control of but that is in the possession or custody of some other person include arrangements for the safe keeping, proper preservation and due return of the record.

(3) A public office must take all reasonable steps to recover a State record for which the public office is responsible and that the public office does not have control of, unless the record is under the control of the Authority or of some other person with lawful authority.

Under the government’s formal requirement for ministers’ offices records, and a requirement of the act, “briefing notes or papers maintained in the Premier’s Office” are “required as state archives.”

Section 21 of the Act further requires that a person must not ‘abandon or dispose of a State record’, nor ‘damage or alter a State record.’

The maximum penalty for the offence is a fine of $5,500, which applies to each breach.

The shredded documents are certainly state records for the purposes of the Act.

The investigation

Both the SARA and the Information and Privacy Commissioner were called into investigate processes and procedures for records management within the Premier’s office, after key staff members told a NSW Parliamentary Inquiry last year that ‘working notes’ with regard to the allocation of $252 million via the Stronger Communities Fund were destroyed – physically shredded, and then digitally deleted, in what was “not routine practice”.

The notes may have helped to determine how money under the grant scheme was allocated. It has been alleged by the opposition that about 95% of the funds were distributed to coalition seats in the lead up to the 2019 election.

The findings

In its final report, delivered last week, the SARA determined that monitoring of records and management in the office of the Premier was “insufficient”, but did not establish that the disposal of the documents occurred under “explicit instruction” by any member of staff. And so, despite finding the Premier’s office had breached the act, the authority said it would not be taking legal action.

The Information and Privacy Commission has also cleared the Premier’s office of breaking the state’s freedom of information laws.

But the Independent Commission Against Corruption (ICAC) is still yet to investigate.

‘Storm in a teacup’

For the Premier though, it all seems to be a ‘storm in a teacup’. She told media when the scandal broke last year  that ‘pork barrelling’ – a term used to describe occasions when Governments use money to please voters or legislators and win votes – was not illegal.

“Governments in all positions make commitments to the community in order to curry favour,” she said at the time. “The term pork barrelling is common parlance … it’s not something that I know that the community is comfortable with and if that’s the accusation made on this occasion … well then I’m happy to accept that commentary.”

The Premier’s office says that it will support all recommendations made by the State Archives to undertake better record keeping practices.

But the question is, is that really good enough?

Transparency and accountability

This is taxpayer money, and taxpayers deserve transparency around how funds are allocated. In this case, the Premier has virtually admitted to using the funds for political gain, and it has been determined by an independent state body that shredding documents relating to decisions about exactly how funds were distributed was illegal.

It should not be forgotten that six grants were also awarded to projects in the electorate of Wagga Wagga in 2017 during the time the Premier was in a relationship with Daryl Maguire, the then MP for Wagga Wagga.

Mr Maguire resigned from NSW politics in 2018 after admitting to an ICAC Inquiry that he sought payment over a property deal with a Chinese developer. His business dealings during his tenure as an MP have also been under scrutiny in recent weeks in a second ICAC inquiry which revealed that he had been in a secret relationship with the Premier since 2015.

ICAC investigation

Whether ICAC will find any evidence of wrongdoing or ignorance of due process with regard to the allocation of funding remains to be seen.

But a growing number of New South Wales residents are getting fed up with the lack of accountability within the State Government.

There’s also still a long and dark shadow of doubt surrounding The Premier’s  former relationship with Daryl Macguire – why she felt compelled to keep the relationship ‘secret’ for so long, exactly how much she knew about his shady business dealings, along with questions around whether or not breached her duty under the law to report what, if anything that she knew.

Despite the fact The Premier was called before ICAC to testify in hearings relating to allegations of corruption against Mr Macguire, there have been no direct allegations of any wrongdoing on the part of the Premier.

But the surprise revelations about the relationship, followed by information about grant allocations to his constituency during the time of their relationship, along with the discovery of  shredded documents which possibly relate to those grant allocations, absolutely place her integrity into question.

ICAC has still not handed down its final report into the Maguire matter. In fact it has announced that it is broadening its inquiry. If any adverse findings are made against Mr Maguire’s use of his political position in his private business dealings, Ms Berejiklian will undoubtedly have further questions to answer.

In the meantime though, she remains defiant in the face of criticism, telling the media recently that she has “given away caring about commentary” about her government’s performance and her own as Premier.

These are hardly the words that New South Wales residents want to hear. She should care very much about issues which have called her judgement, honesty and ethics into question because the New South Wales voting public certainly do.

Authors

Sonia Hickey

Sonia Hickey is a freelance writer, magazine journalist and owner of 'Woman with Words'. She has a strong interest in social justice, and is a member of the Sydney Criminal Lawyers® content team.

Ugur Nedim

Ugur Nedim is an Accredited Criminal Law Specialist with over 20 years of experience as a criminal defence lawyer. He is the Principal of Sydney Criminal Lawyers®.

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