Legal experts have labelled Scott Morrison’s latest attacks on the New South Wales corruption watchdog “disgraceful” and “stupid”, as the Liberal party ramps up efforts to have Gladys Berejiklian contest the federal seat of Warringah.
On Monday, the prime minister doubled down on his previous comments in parliament last week when he called the Independent Commission Against Corruption a “kangaroo court,” and accused it of trying to “publicly humiliate” the former NSW premier.
“Gladys was put in a position of actually having to stand down and there was no findings of anything,” Morrison said on Monday, in advance of any possible findings by Icac. Berejiklian resigned voluntarily in September, in line with her own ruling that an MP who is a substantial subject of an investigation must stand aside.
“I don’t call that justice. What I saw was a pile on,” Morrison said.
Icac is investigating whether Berejiklian failed to declare a conflict of interest due to her secret relationship with the then MP for Wagga, Daryl Maguire, when she was involved in awarding lucrative grants to community Maguire’s electorate as treasurer and later as premier. Berejiklian has denied any wrongdoing and Icac is yet to hand down its findings.
There’s growing speculation the former NSW premier will put her hand up for Liberal preselection to run against Zali Steggall in the northern Sydney electorate, after the independent won it from former prime minister Tony Abbott in 2019.
The chair of the Centre for Public Integrity and former NSW supreme court judge, Anthony Whealy, criticised Morrison for dismissing the serious issues raised by the Icac inquiry.
“Even those who admire Berejiklian for many of her qualities when she was premier, realise there has to be a serious inquiry into the situation that arose … in unloading millions of dollars of public money into the Wagga electorate at the same time she was in a relationship with the member for Wagga,” he said.
“For Morrison to dismiss that as being of no significance, is to trash integrity and accountability in the most terrible fashion,” he said.
For he part, Berejiklian insisted before Icac that Maguire was treated just like any other MP and that she did not consider she needed to disclose the relationship, which was a personal matter.
Whealy said calling it a kangaroo court showed the prime minister “had no idea what NSW Icac legislation says, because it is not a court at all.”
“It’s an investigative body that is precisely the same as a royal commission. No one suggested that the royal commissions into banking or trade unions, or aged care were kangaroos courts and they were conducted in public,” he said.
“To accuse Icac in this way, is to blatantly misunderstand its nature or it’s a wilful refusal to acknowledge what its true function is,” he said.
Former judge of the Victorian court of appeal Stephen Charles SC said Morrison’s comments were “disgraceful”.
“I thought that what they indicated that he was hoping the former premier would stand against Zali Steggall and that Icac’s activities were interfering with his wishes.”
Barrister Geoffrey Watson, who was counsel assisting Icac in its investigation of Labor MP, Eddie Obeid, said Morrison was “trivialising” Icac’s investigation when he accused it of simply investigating her personal relationship.
“It’s not that he’s said it’s a kangaroo court, that’s just stupid. It’s that he said it was an investigation into who was her boyfriend. That’s a trivialisation of an investigation into whether there had been compliance at the highest level with a code of conduct. You set the standards from the top,” he said.
“But what I found really awful was he suggested that Icac had pursued this as a politically motivated agenda – and that was quite improper, and he should apologise to the people and Icac for that remark,” he said.
The Law Council of Australia has called for “moderation in the debate over the proposed federal anti-corruption commission” after Morrison’s “kangaroo court” comment last week.
“Respect for legal institutions underpins the administration of justice in Australia. The structure and powers of any commission are important topics for discussion, but any commentary must be tempered by fairness and balance,” Law Council of Australia president, Dr Jacoba Brasch QC, said.
Morrison has made much of the fact that Berejiklian has not been accused of criminal conduct.
But University of Sydney professor of constitutional law, Anne Twomey said the definition of corrupt conduct was much broader in NSW than that of criminality.
“So you can be found to have engaged in corrupt conduct if you have misused your public office by acting in a manner that is dishonest or partial, by misusing public information or those sorts of things she said.”
“I have noted what they are trying to do is to redefine the meaning of corruption so that corruption is only when you have committed a criminal offence,” she said of the federal government.
Twomey said that there was no legal bar to Berejiklian running for federal parliament while an investigation by Icac was yet to make findings. Section 44 of the constitution prevents a person holding public office if they have been convicted of a criminal offence that carries a sentence of one year or more.
“She hasn’t been convicted of anything and as far as I know Icac is not contemplating that,” she said.
Charles agreed there was nothing stopping her from standing for federal office.
“However, it is dangerous for those who choose to put her forward for election because there is always the prospect that she might get an adverse finding and that would be seriously disadvantageous.”
Berejiklian has not yet declared any intention to run for the Federal seat.
However Whealy said it would be hard to see the consistency between Berejiklian deciding she should step down of her own volition because of an ongoing inquiry into her integrity and then immediately stand as the member for Warringah.
“There is no imperative from a legal point of view not to stand, but politically it would be damaging for the Liberal party and for her personally because of the outstanding conclusion of the investigation, which on its face is quite a serious matter,” he said.