“It’s not an illegal practice.” That’s NSW Premier Gladys Berejiklian’s last line of defence, and it may be the one that does her in. Because it’s a lie.
We now know that before the last state election the Berejiklian government repurposed a $252 million fund — originally set aside to help local councils deal with its abandoned merger policy — as an undefined slush fund for grants to councils for “community development” projects.
We also know that 95% of that money went to councils in Coalition-held seats (which make up 51% of the total). No guidelines were published; most councils didn’t know the program existed; some received grants and were then asked to apply for them (eg Hornsby Council, which copped $90 million).
And we know that despite her continuing protestations that the program was managed by the Office of Local Government, the premier had her hands all over the funding decisions. According to evidence from the OLC to a parliamentary inquiry, of the $252 million, $142 million was “allocated by the premier”.
Finally, there’s the small matter that all the documents relating to the allocations were shredded by her office.
Berejiklian says none of that involves illegality. Let’s test that proposition.
First, there’s the NSW ministerial code of conduct, already problematic for Berejiklian in the context of her not-intimate personal relationship with Daryl Maguire. The code has legal force in that a breach of its provisions can be found by the Independent Commission Against Corruption (ICAC) to be “corrupt conduct” — not a crime in itself, but a serious thing.
The code’s preamble sets the tone, providing among other things that “ministers have a responsibility to maintain the public trust … by performing their duties with honesty and integrity, in compliance with the rule of law, and to advance the common good of the people.”
Contrast Berejiklian’s description of her conduct as “not something the community likes … but it’s an accusation I will wear”.
On the question of the public interest, the code is specific: “A minister, in the exercise of their official functions … must not act improperly for their private benefit or for the private benefit of any other person.”
The premier openly admitted the money was spent on pork-barrelling, to buy votes. That is by definition not for the public interest, but for the private benefit of her own party.
The code also says that “a minister must not knowingly breach the law”. Which brings us to the question of criminality, specifically the ancient common law offence of “misconduct in public office”. These are its elements:
- A public official
- In the course of or in relation to his public office
- Wilfully and intentionally
- Culpably misconducts himself.
It’s rarely invoked (most recently in NSW, former ALP ministers Eddie Obeid and Ian Macdonald were convicted of the offence). There is no limit to the available sentence a court can impose, but it will usually mean jail time because it’s viewed so seriously.
The key elements are the big words: wilfully, intentionally, culpably. There has to be an element of corruption, a deliberate act contrary to duty. The beneficiary of the misconduct does not have to be the wrongdoer, however.
It would be a novelty for a minister to be prosecuted, let alone convicted, for this offence in the context of rorting taxpayers’ money for purely political gain. However, it’s important to distinguish common or garden-variety pork-barrelling, which all governments do, from what happened with this scheme.
The money was literally thrown away, with no process for application, assessment or decision-making. It was spent on a purpose entirely different from that for which it had been appropriated from the state Treasury. And no attempt was made to even pretend that it was being spent fairly, proportionately or for genuine public purposes.
The government used our money to buy its reelection. In pub test terms, that’s theft. In legal terms, it’s not a stretch to suggest that it was corrupt, wilful, intentional and culpable.
Apart from that very major potential crime, there’s the question of the shredded documents, being investigated by the authorities and likely to have contravened the State Records Act, which mandates the “safe custody and proper preservation of state records”.
And there’s the illegality of the entire scheme, on which some of the councils who missed out are seeking advice with a view to mounting a class action. As noted, the funds were appropriated for one purpose but then spent on a completely different one.
Much as Berejiklian’s state of hubristic offhandedness suggests she’s decided the public interest and hers are the same thing, governments are still bound by law to spend public money only as parliament allows. The entire program implementation was quite likely unlawful.
So — entertaining as is the premier’s spectacular personal reinvention as a bad, bad girl who doesn’t even care if we know that she smokes behind the bike shed — this spectacle is not merely a rare admission by a politician that they’ve been behaving politically.
Berejiklian protests that her government’s conduct has been naughty but not illegal. I think she’s wrong.
Let’s see charges brought then – who would make that happen? Corruption of this sort is out of control in Australia.
Yes, charges are necessary.
The Attorney General is a colleague. A writ of mandamus would command his attention.
There are several problems with proceeding by class action.
First, the Councils who got nothing may struggle to establish an entitlement to anything.
Next, the Councils may be encouraged to settle privately, minimising any impact on future corruption.
And every NSW taxpayer and voter may be entitled to become a party to a class action as it was their money spent.
Absolutely. Bradley’s analysis is clear and persuasive, but what’s needed now is to remove and punish the guilty. Who has both the means and the will to even begin the process? Berejiklian’s own party will defend the guilty to the bitter end, or at least until the political cost becomes truly unbearable. The NSW Nats are equally unlikely to turn on her for following their basic business model of outrageous rorting. NSW Labor, all too conscious of the glass house it occupies, will be very reluctant to throw stones no matter how egregious things are. NSW voters will, based on previous experience, remain fixed in their tribal loyalties no matter what. The media will, mostly, give cover to Berejiklian either directly or by providing distractions. NSW ICAC is in a precarious position because it is wholly dependent on Berejiklian and her ministers for as long as they are the government.
It is odds-on Berejiklian will carry on regardless. When corruption is this far out of control, that’s exactly the point – there is no control.
$500,000,000 ($250,000,000 for Shredderjiklian and $150,000,000/Female Facilities and Water Safety Stream + $100,000,000/Sports Rorts) from tax-payer pockets to fund their vote buying spree for re-election of Coalition federal and NSW state governments?
That’s around $20 from each and every one of us, from babies to the aged in care – to pay for their attempt to try to influence enough of us to vote for them, to buy votes to win government.
The Empress has no clothes.
That was better left unsaid. 😉
It’s ridiculous. She was clearly the biggest crook in her relationship. Money from the public needs to go to where it’s most needed even if it’s the opposition’s seat. Who knows if they actually did that they may win THAT seat at a future election
What Eddie Obeid apparently tried to get away with with his mining land deals and quay food franchises pales into small change compared with what Gladys has admitted she gave away to her electorate mates to buy votes with taxpayer funds. Eddie got jail. Gladys argues it is all above board? What planet does she live on?
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