‘Bias’ finding over robodebt investigation undermines faith in anti-corruption watchdog, legal expert says
Date: 2024-10-30
The federal anti-corruption watchdog’s conflict of interest is “really concerning” because it relates to “the person at the top”, Geoffrey Watson SC, a former counsel assisting to the NSW Independent Commission Against Corruption, has said.
On Wednesday, the Inspector of the National Anti-Corruption Commission released a excoriating review of the Nacc’s decision not to investigate robodebt corruption referrals, finding it to be “affected by apprehended bias”.
The report found that the Nacc commissioner, Paul Brereton, should have “removed himself from related decision-making processes and limited his exposure to the relevant factual information”.
Brereton had appointed a delegate to decide on the six robodebt referrals due to a perceived conflict of interest, which he did declare. The Nacc noted the report contained “no finding of intentional wrongdoing or other impropriety” while conceding the public’s disappointment in the decision was “regrettable”.
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Brereton had delegated the decision not to pursue an investigation into robodebt to a deputy commissioner “to avoid any possible perception of a conflict of interest”. In August, Guardian Australia revealed this was due to a “close association” relating to Brereton’s service in the army reserve.
But the Nacc inspector, Gail Furness, found that Brereton’s “involvement in the decision-making was comprehensive, before, during and after” a meeting on 19 October 2023 when the “substantive decision was made not to investigate the referrals”.
As a result, Furness concluded that Brereton “engaged in officer misconduct” – conduct “that is not unlawful but arose from a mistake of law or fact”.
Brereton accepted that it was a “mistake” to absent himself from the meeting only at the point at which a decision was made on robodebt. “Mistakes are always regrettable, but the most important thing is that they be put right,” he said.
Watson told Guardian Australia he hoped Brereton would think carefully about his future at the integrity body.
“It’s really concerning that it’s the person at the top,” he said. “I would really hope that Mr Brereton would think carefully about whether his continuing role is in the best interests of the Nacc.
“It’s obviously damaging for the reputation of the Nacc, because the body, entrusted with overseeing and regulating conflicts of interest in the public sector, seems to have been incapable of seeing and managing the conflict within its own ranks,” Watson said.
The Greens senator, David Shoebridge, said on Wednesday “it is hard to see how the NACC can survive and retain its credibility without immediate and unambiguous accountability”.
The attorney general, Mark Dreyfus, noted the report on Wednesday but declined to make any comment on whether he still had confidence in Brereton or whether there would be any consequences after the finding.
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The opposition leader, Peter Dutton, believed the public had “total trust” in the Nacc and its top commissioner, claiming the Albanese government was “searching around for a distraction” from the focus on the prime minister’s flight upgrades.
But the ACT independent senator, David Pocock, called for an independent statutory review into the Nacc to be brought forward.
“The inspector’s findings and what they say about the commissioner’s judgment are concerning, as is the way the Nacc has operated to date,” he said.
In minutes taken of the Nacc’s 19 October 2023 meeting, Brereton said he saw “no value” in the Nacc making corrupt conduct findings with no remedy.
“The commissioner stated that a corruption inquiry is usually a precursor to some kind of remedy elsewhere and the commission cannot provide a remedy itself,” the meeting’s minutes read.
“The conduct itself has already been exposed by the [royal commission] and that a remedy can either be provided through a criminal prosecution or APSC code of conduct proceedings.
“The commissioner stated that all the commission could do was make a finding that there was corrupt conduct and that he could not see where the commission could add value.”
Brereton also conceded there was a “real possibility” the Nacc might come to different conclusions to the royal commission and that was “not in the public interest”.
“The commissioner stated that having another a second inquiry into the same matters would not appear to add value in the public interest and would be unlikely to expose further instances of misconduct, noting the [royal commission] had been thorough,” the minutes said.
