gladys berejiklian
NSW Premier Gladys Berejiklian (Image: AAP/Joel Carrett)

“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.