Memory Loss Masterclass: how Gladys Berejiklian’s astute performance at ICAC may save her

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Gladys Berejiklian, ICAC
The Premier still has answers despite a victim's PR campaign. Photo: ABC

From a legal perspective, NSW Premier Gladys Berejiklian delivered a gala performance at ICAC. Citing a loss of memory more than 150 times to questions put by counsel allowed the Premier to distance herself from implications that she may have had knowledge of Daryl Maguire’s corruption.

This past week has been as dramatic as any in the world of NSW politics following sensational revelations that NSW Premier Gladys Berejiklian has been in a secret “close personal relationship” with disgraced former colleague Daryl Maguire. Maguire has admitted to using public office for financial gain by among other things charging for access to NSW politicians including the premier herself.

Berejiklian maintains “she has done nothing wrong” and that the interests of the people of NSW are always her top priority. Using such definitive terms in the Legislative Assembly to declare her innocence means that if ICAC find any evidence of wrongdoing, the consequences are that she may have misled Parliament.

From a legal perspective, her performance at the commission was impressive. Any criminal defence barrister worth their salt will advise a client in a predicament to develop amnesia regarding tricky facts and circumstances.

Amnesic answers

An analysis of the unredacted portion of the Premier’s examination by ICAC shows she cited loss of memory about 152 times in response to questions by Counsel assisting.

It may seem concerning that the Premier is dogged by such forgetfulness. However, it allowed the Premier to distance herself from any implications that she may have had knowledge of Mr Maguire’s corruption, which, in the best-case scenario would mandate a resignation.

Also, it limits the Premier’s risk of committing perjury in ICAC. Here is an extract from last Monday morning’s session showing how quick on her feet is Berejiklian as she quickly adjusts her response:

Mr Robertson: Did you give any of those emails a tickle from the top?

 

Ms Berejiklian: Absolutely not. Not to my recollection, I should say. Yep.

Because it is impossible to prove beyond reasonable doubt that a person could or could not remember a particular fact, person or conversation at the time of questioning, such answers are crucial to Ms Berejiklian shielding herself from perjury.

The other clever tactic deployed by the Premier was the use of the phrase “close personal relationship”. Stewart Jackson, an Australian politics expert and senior lecturer at the University of Sydney described the phrase as a murky “non-term… It’s sort of weasel words in one sense”.

‘Weasel words’

If the relationship were to be classified as a partner relationship, and some level of financial interdependence was assumed between the couple, then Maguire’s problems would directly become Berejiklian’s. . Given the Premier stated publicly in an interview with the Sunday Telegraph that she loved Maguire and thought she could marry him, this is not unlikely. 

This means there is a strong argument to be made that the public interest in seeing what the transcript says about the relationship outweighs the interest in respecting the privacy of the “power couple”.

Notwithstanding the characterisation of the relationship between the MPs, the Ministerial Code of Conduct states.

Members shall take reasonable steps to draw attention to any conflicts between their private interests and the public interest in any proceeding of the House or its Committees.

It is clear that when appointing Maguire as a parliamentary secretary, Berejiklian should have made disclosures about their relationship, whatever its “label”. When holding such an important public office, intrusions on a private life, no matter how “private” that person claims to be, must be accepted to uphold trust in the office of the premier.

‘Bad guy’ was also a colleague

Berejiklian is not short of supporters in politics and the media. However, what is missing from the “we’ve all dated a bad guy” argument is the fact that not only was Maguire a “bad guy”, he was a “bad guy” who was also a colleague. Even for someone with Berejiklian’s straight-shooting reputation, it’s quite the feat to erect effective Chinese walls in the workplace, the kitchen and the bedroom.

The evidence produced at the ICAC hearings shows that Maguire was fond of keeping Berejiklian in the loop regarding his exploits. Her response to the ICAC was rather callous to poor old Maguire when questioned on these conversations:

Mr Robertson: Why were you saying to Mr Maguire “I don’t need to know about that bit”?

 

Ms Berejiklian: Because I would have assumed, again I have no direct recollection, I can only surmise, but I, I probably would have firstly not regarded it as, as interesting to me. It was not something I pay particular attention to, and I would have also potentially regarded it as more pie in the sky and, and speculation.

 

Mr Robertson: But this is a bit more than that, isn’t it? You’re telling him specifically that there’s a bit of information that he might have that you don’t need to know. Do you see that there?

 

Ms Berejiklian: No, I think it’s, I think it’s equally a reflection of my lack of interest, and when I say lack of interest, insofar as I wouldn’t have taken this conversation necessarily seriously, it was very vague, and perhaps I was bored and busy and wanted to move on and suggested to him that that was his matter, his interest, he could deal with it and I had no cause to believe anything otherwise. That if there was anything for him to disclose, that if there’s any interest he hadn’t registered that he should have registered that that would have occurred.

It seems the Premier was rather uninterested and unsympathetic to the $1.5 million debt her “close personal relation” was under. It also seems she did not consider any of Maguire’s business dealings as being reasonable grounds to consider as potential corruption, despite her positive duty to do so under section 11 of the ICAC Act 1988.

Instead she apparently chose to believe that Maguire would fulfil his disclosure obligations as a MP.

Maguire’s missing disclosures

This is an extraordinary oversight given Daryl Maguire is mysteriously missing from the 2017-2018 disclosure register. Luckily he remembered to make his disclosures in previous years, with Maguire’s 2015-2016, 2016-2017 statements revealing “Nil” debts and “Nil” income from sources other than salary and rental properties.

As someone who was close and personal to Daryl, surely Berejiklian should have said something to the effect of: “I hope you disclosed that income in your Disclosure of Pecuniary Interests and Other Matters,” rather than saying: “That’s good. I don’t need to know about that bit.”

The question remains, despite this clinical witness performance, is there enough substance in what has been revealed to warrant the Premier’s resignation? In the minds of many people, there is a political career’s worth of difference between “I don’t know” and “I don’t need to know”.

Gladys’ arrogance paves the way for Federal ICAC





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