Teflon Gladys. Is it Time for the NSW Premier to Resign?

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Gladys Berejiklian drama

NSW Premier Gladys Berejiklian has faced scrutiny recently over her involvement in – or at least wilful blindness in the face of – allegations of corruption by members of her Party.

Just a few weeks ago, NSW residents were polarised over whether the Premier should resign after admitting to a long-term, secret personal relationship with disgraced former MP Daryl Maguire; during which the pair discussed the latter’s questionable business dealings.

Shielded by the mainstream media

The narrative put forth by parts of the mainstream media was that the Premier’s personal life and poor relationship choice should not prevent her from continuing in her position.

But, perhaps the real question should have been: Did Ms Berejiklian know about, or at least turn a blind eye to, her partner’s potentially corrupt conduct, and breach her duty under the law to report it?

In that regard, intercepted telephone conversations and SMS’s between the Premier and her then partner suggested that – at the very least – the Premier did not want to speak over the phone about Mr Maguire’s questionable business dealings.

For example, in a phone conversation that occurred in 2017, Mr Maguire talks to the Premier – not for the first time – about his allegedly corrupt land deal regarding Badgerys Creek.

The conversation is as follows:

Mr Maguire: “William tells me we’ve done our deal so hopefully that’s about half of all that gone now,” Maguire said down the line, referring to the deal and paying his debts,

Ms Berejiklian: “that’s good”, pausing momentarily before adding: “I don’t need to know about that bit.”

Mr Maguire. “No you don’t … you do not.”

Legal obligation to report possible corrupt conduct

With the help of the mainstream media, it appears the Premier has ‘dodged a bullet’ when it comes to her wilful blindness.

In that regard it should be borne in mind that section 11 of the Independent Commission Against Corruption Act (1988) imposes ‘a duty to report to the Commission any matter that the person suspects on reasonable grounds concerns or may concern corrupt conduct.’

This legal obligation applies to, among others, ‘a Minister of the Crown’, which includes Ms Berejiklian.

Shredding documents relating to $252 million in grants

Adding to the Premier’s woes are revelations that her office shredded documents relating to $252 million in government grants – an act which former NSW auditor-general Tony Harris has publicly labelled as unlawful, calling on the Premier to resign.

Again, the attention surrounding that conduct has quelled with the passage of time.

But the Premier is not off the hook just yet, with both the State Archives and Records Authority and the Information Commissioner announcing that they will be conducting investigations into the matter.

For anyone who hasn’t been following along, the issue relates to the Stronger Communities Fund, which was established in 2016. The allegations levelled at the Premier’s department are that about 95% of the grants were handed out in Coalition-held electorates in the lead up to the NSW State election last year.

At a parliamentary inquiry into the allocation of grants, a senior member of Ms Berejiklian’s team gave evidence that briefing notes regarding projects were shredded.

The obligation to keep all records

Since then, there have been concerns that the shredding of these state papers breached the State Records Act 1998 (NSW), which requires public officers to protect and retain such records.

Section 11 of that 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 shredded documents are certainly state records for the purposes of the Act.

‘Sufficient basis’ to undertake an audit

The Labor party has been the most vocal when to comes to levelling allegations at the Premier’s office, and has even reported the matter to the NSW Police Force.

Now, the NSW State Archives and Records Authority believes has expressed the view that there is ‘sufficient basis’ to undertake a record-keeping analysis.

While the Premier’s office says that it is willingly cooperating with investigators, there are increasing calls for Ms Berejiklian to resign

Special Minister faces a censure motion

The leader of the government in the upper house, Don Harwin – who is the Special Minister for the State and Minister for the Public Service and Employee Relations, Aboriginal Affairs, and the Arts – was suspended from the chamber last month for failing to produce documents relating to the approval of the grants.

Mr Harwin now faces a censure motion, which if passed, could hold him in contempt of Parliament over his failure, and lead to further action being taken against him.

The Leader of the Opposition says the motion was a decision as a result of the ‘ongoing failure of the government to produce documents in relation to the grant allocations.’

The state-level saga echoes the Federal Government ‘Sports Rort’ scandal earlier this year. A senate inquiry heard that 43% of projects were awarded grants in the lead up to the 2019 federal election were not eligible for the money.

The saga, which became a non-priority when the Covid-19 pandemic hit Australian shores,   forced the resignation of Senator Bridget McKenzie who oversaw the programme, and therefore the allocation of grants.

Grants are public money

It is important to bear in mind that public grants – at any level of government – are taxpayer funds, earmarked for particular purposes. They are supposed to be allocated according to specific rules and regulations that government ministers and their delegates are required to follow.

The documents shredded by the NSW Premier’s office could contain information which reveals the rules for the granting of public funds were not observed.

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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. Sonia is the winner of the Mondaq Thought Leadership Awards, Spring 2022.
Ugur Nedim

Ugur Nedim

Ugur Nedim is an Accredited Criminal Law Specialist with 25 years of experience as a Criminal Defence Lawyer. He is the Principal of Sydney Criminal Lawyers®.

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