Corruption watchdog must review Robodebt decision after misconduct finding

The National Anti-Corruption Commission will reconsider its refusal to investigate the disastrous Robodebt scheme after a scathing report found ‘apprehended bias’.

National Anti-Corruption Commission chief and major general in the army reserve Paul Brereton.

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The National Anti-Corruption Commission will reconsider its refusal to investigate six individuals involved in the disastrous ­Robodebt scheme after a damning finding of “officer misconduct” against NACC comm­issioner Paul Brereton over his conflict of interest in the case.

The anti-corruption watchdog will ask an “independent eminent person” to review its decision against a Robodebt probe, which was found by NACC Inspector Gail Furness to have been infected by “apprehended bias”.

Mr Brereton appointed a delegate to decide whether the NACC should investigate the Robodebt scheme, after acknowledging a “close association” with one of the six individuals referred to it by the royal commission.

The identity of that person has not been revealed but is understood to be linked to Mr Brereton through his service in the army reserve.

Ms Furness found that Mr Brereton should have gone further than delegating the decision, by removing himself from related decision-making processes and limiting his exposure to the relevant factual information.

Instead, Mr Brereton’s involvement in the decision-making “was comprehensive, before, during and after the 19 October 2023 meeting at which the substantive decision was made not to investigate the referrals,” she found.

Gail Furness SC. Picture: AAP

“The NACC commissioner contributed to the discussion at that meeting, settled the minutes of that meeting and was involved in formulating the reasons for decision and also the terms of the media statement.”

A fair-minded observer might reasonably apprehend that Mr Brereton’s involvement could impinge on the impartiality of the delegated deputy commissioner, she said, though she made no finding against that delegate.

Ms Furness’s findings were based on advice from former Federal Court judge Alan Roberston SC, who was engaged to assist her.

The Robodebt royal commission found last year the scheme wrongfully recovered $750m from 380,000 ­people using an ­automated income averaging system, and that former prime minister Scott Morrison gave “untrue” evidence to the commission.

Ms Furness revealed that after the NACC announced in June that it would not investigate the Robodebt scheme she had received over 1200 complaints expressing “profound disappoint­ment” about that decision.

Many pointed out that Mr Brereton and “Referred Person 1” were known to each other, and that the NACC had breached the public trust by not investigating the royal commission’s referrals.

Attorney-General Mark Dreyfus is still considering whether to publicly release the “sealed section” of the Robodebt royal commission report, which recommends individuals for civil action or criminal prosecution.

Former prime minister Scott Morrison appears before the Robodebt royal commission

Mr Dreyfus said the government had accepted Ms Furness’s recommendation and would “continue to support the NACC as it undertakes its important work to deter, detect and prevent corrupt conduct”.

In a statement, the NACC announced it was in the process of engaging “an independent person” to decide whether it should investigate the Robodebt referrals. It stressed the Furness report contained no suggestion of actual bias and no finding of intentional wrongdoing or other impropriety and that under the NACC Act, any mistake of law or fact falls within the definition of “officer misconduct”.

“The commissioner declared, immediately and repeatedly, that he had a perceived (not actual) conflict of interest, arising from a prior professional, not personal, relationship with one of the referred persons,” the NACC said.

“The commissioner and that individual have never socialised other than at official functions, nor visited each other’s homes.”

Inaugural commissioner Paul Brereton makes the opening address of the National Anti-Corruption Commission in Canberra in July 2023. Picture: AAP

Mr Brereton accepted that his judgment had been found to be mistaken and took sole responsibility for the mistake, noting that “our system requires that we accept such findings, even when we don’t entirely agree with them”.

Peter Dutton backed Mr Brereton, saying the public had “total trust” in him and the government was looking for a “distraction”.