Lawyers for ICAC have defended claims by Gladys Berejiklian it acted beyond its authority in releasing findings the former NSW premier engaged in serious corrupt conduct.
The commission in June found the former premier breached public trust by refusing to report her covert liaison with disgraced Liberal MP Daryl Maguire.
She has since filed a judicial review in the NSW Court of Appeal seeking to overturn these findings.
ICAC's barrister Stephen Free SC on Monday rejected submissions that former judge Ruth McColl, who was appointed assistant commissioner to help with the inquiry, did not have the authority to prepare the report into Ms Berejiklian.
While Ms McColl's appointment as assistant commissioner expired in October 2022, she was kept on as a consultant for another eight months before the report was published.
Ms Berejiklian's lawyers have argued a consultant would not have been authorised to put out a report.
But Mr Free said the former judge had been brought on to preside over hearings where Ms Berejiklian gave evidence and the report was published as findings of ICAC's chief commissioner.
"Having someone like Ms McColl preside at a public inquiry as an assistant commissioner under delegation but not make a report is precisely what the (ICAC) Act contemplates," Mr Free told three judges in court.
“There can be no doubt about the status of this report."
In its report, ICAC found one scenario constituting "serious corrupt conduct" included Ms Berejiklian sitting on a cabinet committee considering multi-million-dollar funding arrangements pushed by Maguire to benefit his Wagga Wagga electorate.
Between 2016 and 2018, as treasurer and then premier, Ms Berejiklian was involved in approving or supporting allocations of $5.5 million for the Wagga-based Australian Clay Target Association and $10 million for the Riverina Conservatorium of Music.
Earlier on Monday, Ms Berejiklian's barrister Bret Walker SC argued ministers would always have personal relationships with family, friends and others.
Assuming these types of relationships always meant impropriety was a black, depressing and utterly unrealistic view of human life, Mr Walker told the court.
"Our ministers are not members of enclosed religious orders. If they were, by the way, the religion would be the attachment,” he said.
Mr Walker said there was no evidence Ms Berejiklian's wish to maintain or advance the relationship with Maguire played a role in her decision-making.
There was evidence of lobbying by the local member of parliament but this was "utterly different" to a conflict of interest, he said.
The barrister quarrelled with ICAC's findings that Ms Berejiklian had breached her duty by merely failing to tell the public the Wagga Wagga MP was her boyfriend.
Something could not be a conflict of interest if simply disclosing it would remove that conflict, he said.
Mr Walker argued the commission failed to examine whether the clay-shooting and conservatorium proposals would have been green-lit without Ms Berejiklian's relationship with Maguire.
Members of the expenditure review committee who had political but not personal connections with Maguire had also given their approval, he said.
It was not ICAC's role to overturn parliament's decisions and examine whether certain proposals were in the public interest, Mr Walker argued.
"It won't be a substantial breach simply because ICAC thinks there shouldn't be a conservatorium in Wagga Wagga," he said.
The commission stopped short of recommending criminal charges against the former premier, citing "formidable" obstacles to prosecution.
Given this concession, Mr Walker questioned how the commission could have been satisfied his client deliberately and conscientiously breached her duties.
Following the report's explosive release, Ms Berejiklian stated publicly she had always worked her hardest in the public interest.
The hearing continues on Tuesday.
