Gladys Berejiklian has, she says, “tried to be as frank as possible” about her relationship with Daryl Maguire, while not being frank at all. Although entitled to her privacy in theory, she’s placed herself in Bill Clinton territory — clinging to semantics for political (and potentially legal) safety.
The problem is that everything hangs on whether she was not just in a “close personal relationship” with Maguire — as she has been describing it — but an “intimate personal relationship”.
Asked specifically about this, Berejiklian tiptoed. The question was whether she had breached the ministerial code by not declaring Maguire’s pecuniary interests herself when she was in an intimate personal relationship with him.
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No, because the ICAC was very careful in the definition they used in terms of close personal relationship. They were careful, and I’ve not been accused of any wrongdoing.
For those still clinging to belief in the “he done her wrong” defence Berejiklian has been playing, look closely. Her answer was pure sophistry.
The ministerial code of conduct lives in the regulations made under ICAC’s enabling legislation. In other words, it is a law rather than just a policy with teeth.
The code imposes strict obligations on ministers in relation to conflicts of interest, gifts, relationships and the disclosure of such. Critically, it extends the umbrella that sits over each minister’s own conduct and interests to those of their “family members”, as if the family members’ interests were actually the minister’s.
The purpose, obviously, is to pre-empt avoidance of disclosure by using family proxies (for example, putting assets in your spouse’s name).
The definition of “family member” includes “any other person with whom the minister is in an intimate personal relationship”. The word “intimate” is not defined.
A minister must disclose all potential conflicts of interest. This includes where a possible decision or action to be taken by the minister could confer a private benefit on them or a family member. It is also obligatory to publicly disclose the pecuniary interests of the minister and their family members.
If Maguire and Berejiklian were in an intimate personal relationship at any time, then she had major compliance obligations under the code of conduct, and did not comply with any of them. The code provides for sanctions for breaches (ordinarily imposed by the premier), but a substantial breach of the code is also capable of constituting corrupt conduct under the ICAC Act.
That’s why the extreme care in the language she is adopting. It is not coyness about her privacy; it is the difference between legal innocence and a world of potentially dire consequences.
So what actually does “intimate” mean? The dictionary definitions are “closely acquainted, familiar, private and personal”. That sounds a lot more casual than requiring a shared bed, actual sex and pillow talk.
Who knows what a court might think, but I’d guess it would apply a test adverting to the underlying purpose of the ministerial code: to protect the public interest in ensuring the integrity of ministers of the Crown. That would suggest a qualitative test. A sexual relationship may not be intimate, but a platonic one could easily be.
Stepping back from the legality, it’s obvious that we are right down in the weeds — just like Clinton was when he responded to a question from a congressional inquiry: “It depends on what the meaning of ‘is’ is.”
If Berejiklian’s claim to the moral authority to continue as premier hinges on the definition of a single undefined word in a code of conduct whose spirit is far more important than its language — as is clearly now the case — she is as far removed as she could possibly be from where she stood only a few days ago.