Berejiklian inquiry day eleven as it happened: ICAC hears former NSW premier rejected advice to cut off Daryl Maguire

The background to the inquiry

Almost a year later, on October 1 this year, the ICAC announced it was expanding its investigation to consider whether Ms Berejiklian had been in a position of conflict between her private interests and public duties or engaged in conduct “liable to allow or encourage corruption” by him. The announcement prompted Ms Berejiklian to announce her resignation from politics.

As part of this expanded inquiry, the ICAC is investigating two “case studies” involving multimillion-dollar grants or promises made to organisations in Mr Maguire’s electorate when Ms Berejiklian was treasurer (from April 2015) and later premier (from January 2017). She has denied all wrongdoing.

The ICAC heard the following evidence today.

Maguire told Berejiklian to get a ‘private phone’

Mr Maguire texted Ms Berejiklian on July 9, 2018, that he was “chatting with my friends on [encrypted messaging app] WeChat now” and she should download the app. He also told her she needed to “get a private phone”.

The messages were sent four days after he told the then premier in a tapped phone call that he had been summonsed to give evidence at the ICAC in a separate inquiry, and warned her that the ICAC “could be taping your conversation with me right now”.

Ms Berejiklian responded to the message about downloading WeChat with the following: “Ok I’ll try! What about WhatsApp? That’s easy too.”

She told the ICAC that she made no changes to her communication methods and that Mr Maguire may have been telling her to do this for “privacy reasons” unrelated to the ICAC.

She had responded with “Ok. Is everything ok” when he told her to get a private phone.

Mr Maguire replied that had “got the bugbears on the rum [sic]“. When she asked him what that meant, he replied: “Means I got more info and data than them”.

Ms Berejiklian told the ICAC she had “no idea” what the messages meant.

Mr Maguire texted again: “They can read texts but not the little green man, it leaves no trace.”

Asked if this referred to the WeChat icon, Ms Berejiklian said it could have but she had never used the app. She said she did not get a private phone.

Berejiklian grilled about her suspicions

Ms Berejiklian has been grilled repeatedly over the past two days about whether she had any suspicions at any stage that Mr Maguire had engaged in corrupt conduct, including after he told her in the tapped phone call on July 5, 2018, that he had been summonsed to give evidence at an earlier ICAC inquiry into the former Canterbury Council.

Under section 11 of the ICAC Act, a NSW minister and other public officials have a duty to report to the corruption watchdog any matter that the person suspects on reasonable grounds concerns or may concern corrupt conduct.

Ultimately, no corruption findings were made against Mr Maguire as a result of that earlier inquiry, although he admitted during his evidence on July 13, 2018, that he had discussed a plan to broker land deals for a property developer and split the commissions with a local councillor. No money changed hands.

The ICAC recommended in March this year that the NSW Director of Public Prosecutions consider charging him with the offence of giving false or misleading evidence to the corruption watchdog during the 2018 inquiry.

Ms Berejiklian told the ICAC repeatedly that she had “no knowledge” of wrongdoing by Mr Maguire and didn’t think she had any information that could have benefited the ICAC. He had told her in the call about his dealings with some developers, but Ms Berejiklian said she didn’t know them and wasn’t even given their last names.

“Clearly this body had all that knowledge and information,” she said. “There was nothing that I could recall; nothing I retained. I’m not sure what I would have reported.”

The ICAC has heard Mr Maguire told Ms Berejiklian in a 2017 phone call that he believed he could make $1.5 million from a land deal. But Ms Berejiklian said she may not have been listening and Mr Maguire often spoke about “pie-in-the-sky” proposals that did not come to fruition. As it transpired, Mr Maguire did not receive the $1.5 million.

Berejiklian accused of lying by ex chief of staff’s barrister

Ms Berejiklian told the ICAC today that her then chief of staff, Sarah Cruickshank, told her in July 2018 that she should have nothing more to do with Mr Maguire, but she didn’t take her advice.

Ms Cruickshank told the ICAC last week that the then-premier called her on July 13, 2018, after the then NSW Liberal MP Daryl Maguire had given evidence at the earlier ICAC inquiry into Canterbury Council, and told her she had been in a “historical” relationship with Mr Maguire that ended before she became premier in January 2017.

Ms Berejiklian told the ICAC in October last year that the relationship continued well into her time as premier. She said today that she did not recall telling Ms Cruickshank that the relationship was historical only.

Ms Berejiklian said Ms Cruickshank told her after the conversation “not to have anything further to do” with Mr Maguire.

“I did not take that bit of advice, obviously,” she said.

Ms Cruickshank’s barrister, Hugh White, put it to Ms Berejiklian that she was “not being honest” about what she told Ms Cruickshank about the duration of the relationship.

Ms Berejiklian said Ms Cruickshank “is someone of enormous integrity” and “I appreciate that she had a different recollection”.

Berejiklian rejects conflict of interest

One of the key issues in the inquiry is whether Ms Berejiklian breached the ministerial code of conduct by failing to disclose her relationship with Mr Maguire when the government signed off on millions on dollars in grants or promises for his electorate of Wagga Wagga.

Ms Berejiklian said she “completely reject[ed]” the proposition that the relationship affected the way in which she carried out her public duties.

“That was always separate to my public responsibility ... I stand by that ever so strongly,” Ms Berejiklian said.

Next steps in the inquiry

The next steps are for the lawyers representing parties at the ICAC to prepare written submissions relating to the evidence. The ICAC considers those submissions in preparing its final report, which sets out its findings about the evidence and the parties at the centre of the investigation.

The ICAC may also make recommendations in its final report about whether the NSW Director of Public Prosecutions should consider criminal charges in relation to any of the targets of the inquiry. These recommendations are not always made.

Ms Berejiklian has a team of high-powered barristers acting for her, including Sydney barristers Bret Walker, SC, and Sophie Callan, SC.

Ms Callan was the prosecutor in the recent trial of former NSW Labor ministers Eddie Obeid and Ian Macdonald, and Mr Obeid’s son Moses. All three men have received prison sentences for their role in a conspiracy to commit misconduct in public office relating to a lucrative coal exploration licence over the Obeid family’s Bylong Valley farm.

As a guide to the length of time the ICAC may take to issue a report in the current inquiry, the watchdog has not yet issued its report in Operation Aero, which started public hearings in August 2019 into political fundraising by the NSW Labor Party. Public hearings ended in December that year.

That inquiry featured allegations that a Chinese billionaire and property developer Huang Xiangmo delivered $100,000 in cash in an Aldi plastic bag to then party boss Jamie Clements in 2015, contrary to a ban on political donations from developers. Both men have denied that this happened and no findings have been made to date.

This is Michaela Whitbourn signing off on the ICAC blog. Thank you for reading.

Ms Berejiklian said she didn’t dispute Ms Cruickshank’s recollection for a second, and that two people could have different recollections of the exact nature of a conversation.

She said she wanted the “world to know” that in terms of integrity, professionalism and obligation, “you can’t go past Ms Cruickshank”.

“Ms Cruickshank, without question, is someone of enormous integrity,” Ms Berejiklian said.

She accepted that Ms Cruickshank told her to stop communicating with Mr Maguire in 2018.

Evidence relating to this exchange is significant to Ms Cruickshank because she has told the ICAC that she would have taken further steps if she had known the relationship was ongoing and not historical.

ICAC Assistant Commissioner Ruth McColl, SC, asked Ms Cruickshank last week if Ms Berejiklian had “lied” to her.

Ms Cruickshank said: “That’s your word, Commissioner, but, yes, I, I did not know what ... the premier had said last year.”

Pressed about whether there was “any other description of it than a lie”, Ms Cruickshank replied: “No, there probably isn’t. I’m just uncomfortable using the word. But I accept the word.”

Ms Cruickshank said that if she had known the relationship was ongoing she would have “sat down with [the premier] ... and gone through whether or not there were implications for things she had done”.

She said she would have told Mr Maguire that Ms Berejiklian should not be involved in decision-making in relation to his proposals and she should be kept at arm’s length.

But Ms Cruickshank also said this was about “optics” and she had not seen evidence of Ms Berejiklian favouring proposals from Mr Maguire.

Mr Maguire suggested at least one project, a stadium, was being blocked by bureaucrats and Ms Berejiklian said: “I can overrule them”.

Ms Berejiklian said there was nothing unusual about a government spending money to retain a seat during a by-election.

Asked by counsel assisting the ICAC, Scott Robertson, whether Ms Berejiklian was interested in funding projects for political reasons without necessarily being concerned about their merits, she said: “I don’t think they’re mutually exclusive.”

A $20 million plan for a new recital hall for the Riverina Conservatorium of Music could have had “very huge benefits” for the community, Ms Berejiklian said.

Asked if there was a comparative analysis undertaken about whether the money was best spent on this project in Wagga Wagga or in another part of the state, Ms Berejiklian said: “When it’s a by-election you’re only focusing on that seat.”

She was also asked whether she was interested in funding the conservatorium plan to help in building a legacy for Mr Maguire.

“No, this was about keeping the seat. I think Mr Maguire’s legacy was not relevant then,” Ms Berejiklian said.

She appears to be increasingly annoyed by the line of questioning.

“Clearly it had community support. You look for announcements which are going to cause the community to feel favourably about your new candidate,” Ms Berejiklian said.

She said that some members of staff did not support the project while others did. She is asked to identify someone who did support it but cannot remember specific names.

“I thought it was a worthy project,” Ms Berejiklian said.

Asked about concerns raised at the time that the Wagga Wagga poll was turning into a “buy-election”, Ms Berejiklian said that “most by-elections unfortunately come down to” what announcements are made.

The ICAC has heard that the $20 million promised to the conservatorium was made by way of a “reservation”, which is conditional, rather than a guaranteed grant. The money has not been paid to date because NSW bureaucrats subsequently identified deficiencies in the business case for the plan.