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The finding of corruption against former NSW premier Gladys Berejiklian raises challenging questions about how such matters are handled in different jurisdictions across the country – Victoria in particular.
What would happen if a Victorian premier faced equivalent allegations?
Credit: Marija Ercegovac
On Thursday, the NSW Independent Commission Against Corruption (ICAC) found NSW’s former premier Gladys Berejiklian and former Wagga Wagga MP Daryl Maguire both engaged in serious corrupt conduct.
It found Berejiklian had breached public trust over conflicts of interest relating to her personal relationship with Maguire, including in her role in the allocation of government grants for projects in Maguire’s electorate, and in failing to notify ICAC of her suspicion that Maguire had engaged in activities which concerned, or might have concerned, corrupt conduct.
What would have happened in Victoria?
It is unclear whether an investigation would have been launched at all. A difference between ICAC and IBAC is their jurisdiction and the fact that the Victorian watchdog has to meet a higher threshold before commencing an investigation.
Had an investigation proceeded, and equivalent evidence presented, the outcome would likely have been different.
That is because corruption is defined differently in the two states. The NSW definition is broader and includes conduct of a public official involving dishonesty or a breach of public trust or for instance, alleged breaches of the NSW ministerial and MPs’ codes of conduct.
The Andrews government increased the jurisdiction of IBAC in 2016, but the definition of corruption is limited to conduct that would constitute a relevant criminal offence.
Notable in the Berejiklian matter, is that while ICAC found she had engaged in corrupt and serious corrupt conduct, it did not refer her to prosecutors in relation to a criminal offence. It did, however, recommend referral of Maguire and two of his business associates.
It seems likely therefore that in Victoria, Berejiklian’s conduct would not have been found to be, officially, corrupt.
What about public examinations?
In 2021, ICAC controversially examined Berejiklian in public. Innocent or guilty, it would be difficult for any leader to politically survive the humiliation of even being called publicly before an anti-corruption commission.
Would a Victorian premier have had to face such a public grilling?
The answer is unclear. In NSW the decision about whether or not to hold a public inquiry simply requires that two of three ICAC commissioners agree such an examination is in the public interest.
In Victoria, politicians and officials only face public interrogation when there are “exceptional circumstances”. What exactly that means is unclear but legal and integrity experts view the “exceptional circumstances” condition as setting an unjustifiably higher bar for public examination.
Premier Daniel Andrews has been privately interviewed by IBAC in relation to multiple investigations – including for Operation Sandon, about allegedly corrupt land deals.
In no IBAC case to date have Andrews or his ministers been found to have engaged in corrupt behaviour under Victorian law. Whether they should have been publicly examined – morally if not legally speaking – is debatable given the massive political cost endured by such a public grilling.
The Albanese government’s new national anti-corruption commission has adopted a lower threshold for investigations more in keeping with NSW than Victoria. But with public examinations it has adopted Victoria’s ‘exceptional circumstances’ test.
Integrity experts, the Coalition and Greens are pushing for changes to give IBAC more teeth in line with NSW’s ICAC, including widening the definition of corrupt conduct and lowering the threshold for public hearings.
On Thursday, Centre for Public Integrity research director Catherine Williams, repeated the call for reform of Victoria’s IBAC, saying there was much to learn from this latest NSW ICAC report.
“It’s a reminder that our IBAC legislation remains deficient,” said Williams. “Not all corruption involves the commission of a criminal offence. IBAC’s jurisdiction must be expanded to bring it into line with best-practice around the country.”
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