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

by | Oct 20, 2020 | Government

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. Daniel Anstey reports.

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

ABOUT THE AUTHOR

Daniel Anstey

Daniel Anstey

Daniel is an IR lawyer with a Juris Doctor from the University of Sydney. Daniel has also studied law at the Sorbonne in Paris, and at Otago University, New Zealand. He is passionate about music, skiing and well-functioning democracies.

21 Comments

  1. Avatar

    Possibly “astute” in ICAC terms. Devoid of integrity and self respect, lame as Barnaby and Vicki, in the Tele.

    OK, so now we get how they say “my soul” in Yerevan. How about “the dogs are pissing on your swag”?

  2. Avatar

    Ah, she’s a scumbag and a liar.

    She knew exactly what was going on, and now she’s feigning ignorance.

  3. Avatar

    Bin Chicken – Australia’s own version of the ‘Black Widow’ spider, also known here as ‘The Red Back’.

  4. Avatar

    This is the cost of the left’s Israel Folauism and over the top shaming and cancel culture. The mainstream view the left now as a rabid hysterical LGBTQ rights driven moralistic mob and it is easy for Murdoch to characterise them that way. Hence our corrupt, incompetent stupid premier is able to be portrayed as a victim. The left talk about empathy but they need some self reflection. The mainstream are conservative but actually way more tolerant than they are. The mainstream see the left and their radical identity driven agenda as terrifying. They just want to be “normal”. They fear Murdoch and Trumpism less.

    • Avatar

      Have a bleat at the expense of the downtrodden minority John – if it makes you feel any safer:)

      • Avatar

        The mainstream supported the plebiscite overwhelmingly. They are quite a tolerant bunch but socially conservative as you would expect. Mostly they just want to be left alone the way they are. Their sympathies and tolerance are being directed toward Gladys. Murdoch is portraying the situation as the standard lynch mob witch hunt scenario from the self righteous left. Appears to be working at this stage. She seems to think she can hang on. This is the culture wars after all.

    • Avatar

      John,

      These people are full of ism words that have massively subjective meanings that can be argued about incessantly. Some people on the ‘left’ truly think that if you are in that box you need to believe everything that goes along with it. Similar for the ‘right’. I’ve recently decided it’s neither interesting or contributes to any meaningful change in society regardless of who is screaming “you’re a racist” or “This is political correctness gone mad!”

      Radical idea – you can pick and choose the best argument from both sides as it suits you and they don’t have to be anything to do with any views you have on the “culture wars”. In fact if you don’t do this you are just contributing to circle-jerking echo-chambers of people that already agree with you.

    • Avatar

      So Gladys Berejiklian’s obvious corruption is the fault of the “hysterical left”, and that as fearful as the media is of identity politics, they’re pushing an identity politics-based narrative?

      What do you see as the mainstream media that you’re differentiating Murdoch from, considering Murdoch owns 70% of our print media, Nine Fairfax is run by the likes of Peter Costello?

      Your use of ‘isms and vague identity-based terms are the type of identity-based politics you seem to be decrying – if you genuinely see this as the problem, I’d suggest you stop engaging in it yourself.

  5. Avatar

    Interesting no-one mentioning the other woman- Maureen Maguire, Daryl’s wife, who is also a litmus test for Gladys’s ‘integrity’.

    • Avatar

      It’s a wonder the religious right arent calling for a public stoning after all that’s the biblical punishment for adultery.
      Where’s Fred Nile?

  6. Avatar

    I believe ICAC went fairly soft on her as a witness and not the subject of the investigation. Given the admissions she did make and the number of calls where she cut off Maguire discussing corruption with “I don’t need to know about that” and knowing property developers by code names ……. she should now be the subject of an ICAC Investigation and hearings.

    • Avatar

      Exactly right. She almost certainly knew what he was up to but, intentionally not in detail. She should have had nothing to do with him when she first found out. She didn’t.

  7. Avatar

    If a person cannot remember what was said or done, how do they know they have done nothing wrong? Just a guess?

    Gladys chose to ignore improper conduct. Was it because he was a friend, and just a bad apple? Or was it because everyone was doing it?

  8. Avatar

    She would have been well practised and advised, having known about this for months apparently.

  9. Avatar

    Daniel, perhaps you could explain who all the other people in the ICAC hearing were. I thought they were technical staff but was most surprised to see Arthur Moses SC there representing the interests of Gladys, even though she wasn’t the main witness in the proceedings. I presume his fees alone run into the many thousands of dollars a day. Clearly she has been “briefed” on the correct words to use, but does she really need representation when she is not the target of the inquiry? In my view it only lends further to her guilt.

    • Avatar

      Whenever you go anywhere near the legal system always have a Lawyer present. We do not have a justice system. The legal system is there for those that can afford it. Anyone who has attended the AAT will tell you going unrepresented is a major mistake. In my opinion the legal system is a blight on democracy.

  10. Avatar

    On another note, remember how the MSM went for the jugular on Dan Andrews “amnesia” but have adopted soft-lined misdirection to help Gladys in her case.

    Imagine what else they’d learn if they started digging into her history and actions with even a shred of the zeal they used (and are using) to try and ruin Dan…

    Predictably, no consistency.

  11. Avatar

    “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.”

    In other words cheat and know full well you are doing it.

    So why is a pair of balanced scales used to symbolised justice?

    In today’s world of litigation, it would be better replaced with the scales appearing lop sided and way out of balance. It’s more honest.

    Is the truth still relevant at all ? Or is it just being a ‘smart’ lawyer and getting your client of the hook through a fake performance, all that matters in courts these days?

  12. Avatar

    The Alan bond of politics. NSW has always been a cesspit of corruption– that will never change.

  13. Avatar

    The NSW Premier is not on trial with ICAC NSW???? she made a bad choice with

    her partner, but then who hasn’t and she is single so nobody should keep talking about a secret relationship…

  14. Avatar

    Ah.! ….. the Alan Bond excuse, ” I don’t remember” .
    Or maybe plausible denial.!
    If it looks, smells, walks, talks, tastes and act like a lying PORKY………….
    It’s definitely a Pig with lipstick on it.!
    What say you.????

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