Berejiklian v Independent Commission Against Corruption

The proceeding concerned an application for judicial review of findings of "serious corrupt conduct" made by the Independent Commission Against Corruption (ICAC) against the former Premier of New South Wales. The applicant challenged the ICAC's report, which adopted credibility assessments made by a person who had presided at public inquiries. A key aspect of the challenge related to the presiding officer's appointment as a consultant to the ICAC after her term as Assistant Commissioner expired but before the report was finalised.

The court was required to determine several legal issues. These included whether the assistance provided by the presiding officer as a consultant in the preparation of the report fell outside the limits of her authority, and whether the ICAC could validly adopt credibility assessments made by the presiding officer after her appointment as Assistant Commissioner had expired. Further issues concerned whether there was any evidence to support the finding that the applicant was influenced by her private interest in maintaining a close personal relationship, and whether such a non-pecuniary personal relationship could constitute a "private interest" giving rise to a conflict of interest and public duty. The court also considered whether the applicant, as a parliamentarian and Minister of the Crown, had a legally enforceable positive duty to act only according to what she believed to be in the public interest, and whether the ICAC made findings about the merits of funding proposals. Finally, the court examined whether the ICAC's finding of partial conduct required a finding that, but for an unacceptable reason, the conduct would not have occurred, and whether the term "dishonest" in section 8(1)(b) of the *Independent Commission Against Corruption Act 1988* (NSW) required the person to realise their conduct was dishonest according to the standards of ordinary people.

The court reasoned that the presiding officer's role as a consultant was distinct from her prior role as Assistant Commissioner and that her assistance in the preparation of the report was within the scope of her authority as a consultant. The court found that the ICAC was entitled to adopt the credibility assessments made by the presiding officer. Regarding the conflict of interest, the court held that a non-pecuniary personal relationship could constitute a private interest capable of giving rise to a conflict. The court also considered the applicant's duties as a parliamentarian and Minister, and the nature of a finding of partial conduct. The court ultimately dismissed the amended summons.