‘Secret identity’: Call for NACC head Paul Brereton to name corrupt officials

The national anti-corruption watchdog is under fire for shielding the identity of a corrupt public servant who lied and abused her position to get her sister’s fiance a plum government job.

National Anti-Corruption Commission commissioner Paul Brereton. Picture: Martin Ollman/NewsWire

You can now listen to The Australian's articles. Give us your feedback.

You can now listen to The Australian's articles.

Some of Australia’s most senior legal figures and former judges are calling for changes to force the national anti-corruption watchdog to reveal the names of corrupt officials in the wake of an investigation that kept secret the identity of a corrupt Home Affairs officer.

The National Anti-Corruption Commission has come under fire over its first finding of misconduct against a public official, after commissioner Paul Brereton shielded the identity of a ­senior public servant who had lied and abused her position to get her sister’s fiance a plum government job.

In one text, the woman, identified only by the pseudonym “Joanne Simeson”, had boasted “I’m the boss so they will do whatever I say”.

Concern over the NACC’s velvet-gloved treatment in the case comes as the commission begins its third year of operation, an anniversary overshadowed by its failures to investigate the Robodebt scandal and the $2.4m commonwealth payout to former Liberal staffer Brittany Higgins.

Anthony Albanese pledged to deliver “a powerful, transparent and independent National Anti-Corruption Commission – one with teeth”.

But despite a budget of well over $100m a year and more than 260 staff, the commission’s performance has been lacklustre.

The NACC’s refusal to investigate six public officials referred by the Robodebt Royal Commission for possible corruption led to a finding of “officer misconduct” against Mr Brereton over a conflict of interest.

That decision was overturned after an independent review but alarm over the NACC’s lack of transparency and accountability has only been heightened by its subsequent handling of the “Joanne Simeson” case.

The hearings were held in secret and although described by Mr Brereton himself as “a paradigm example of nepotism” that constituted significant and serious corrupt conduct, the woman was not identified nor recommended for prosecution.

The woman resigned from the public service before she could be sacked. Mr Brereton said that had she remained an Australian Public Service employee he would have recommended she be terminated. He also said she had suffered the loss of her career and adverse ­impacts on her family – which he described as “significant repercussions of her conduct”.

Former NSW Supreme Court judge Anthony Whealy says the failure to reveal names of corrupt officials ‘defeats the idea of what the NACC is about’. Picture: AAP

Mr Brereton argued that naming her would make others ­involved in the case more identifiable, and that she “did not occupy high-profile positions that would ordinarily justify greater public accountability”.

A number of prominent legal figures, many of whom were instrumental in the establishment of the NACC, questioned how the woman – who was in a very senior role at Home Affairs – could be said not to have occupied a ­position requiring a high level of accountability.

Former NSW Supreme Court judge Anthony Whealy KC said the failure to reveal names of corrupt officials “defeats the idea of what the NACC is about … otherwise it doesn’t act as a deterrent at all and I cannot, for the life of me, understand why the leadership of the NACC can’t see that clearly”.

Mr Whealy – who is also a former ICAC assistant commissioner – said if the NACC approach ­continued, there would be “a strong imperative to change the legislation.”

One improvement would be to get rid of the requirement that public hearings should be held only in “exceptional circumstances” – a clause inserted by the Albanese government – which had led to undue secrecy in the way NACC was operating, he said. The commission has never held a public hearing.

“Another way would be to require them to justify – and I mean justify in capital letters – why a name is not disclosed, otherwise it should be disclosed,” Mr Whealy said.

Former Queensland Court of Appeal judge Margaret White told The Australian that anonymising the official’s name “doesn’t serve any useful function … it’s very weak”.

Former Queensland Court of Appeal judge Margaret White suggests the NACC legislation could be amended. Picture: Emma Murray

Professor White suggested the legislation could be amended to put greater onus on the commission to identify officials who had been found to have acted corruptly, by reversing the use of the “extraordinary circumstances” test.

“You could take the words that are already there, which cause those of us who care about these things a bit of grief. You could say, must – must – identify the person who’s been found to be corrupt, unless there are extraordinary ­circumstances not to. Why not turn that one on its head?”

Prominent barrister and Centre for Public Integrity director Geoffrey Watson SC told The Australian he didn’t understand why the NACC felt it was appropriate to keep the official’s identity secret. “In the report they seemed to suggest that the matter wasn’t sufficiently serious to name her, yet that’s impossible to reconcile with the fact that to even investigate and report upon it, they had to find that it met the statutory requirement of serious and systemic,” said Mr Watson, who has also served as counsel assisting the NSW ICAC.

Prominent barrister and Centre for Public Integrity director Geoffrey Watson SC says NACC commissioner Paul Brereton must ‘sit down and rethink his role’.

“The NACC is an organisation which should be the leader in transparency and accountability,” he said. “In terms of transparency, they have denied it. In terms of accountability, they seem to have let the person who they say committed serious corruption get away with no penalty.”

Mr Watson said it was necessary to have suppression powers in order to protect whistleblowers and witnesses “but it’s a curious feature of this matter that the person who committed the serious corruption escapes any impact – that’s just a puzzle to me”.

He said there should be no need to change the legislation because the commissioner already had ample discretion to act.

Former WA Supreme Court and Federal Court judge Michael Barker KC says there needs to be a statutory review of how the NACC’s reporting system is working where public hearings are not being held

“The difficulty here is not the statute, it’s the person who’s interpreting it – the commissioner. He’s just got to sit down and rethink his role,” he said.

Former WA Supreme Court and Federal Court judge Michael Barker KC said there needed to be a statutory review of how the NACC’s reporting system was working where public hearings were not being held.

“Sunlight is still the best disinfectant, and yet we don’t know who’s actually done what. It leaves it for people around the corridors, and probably journalists know who all these people are but the general public won’t know.

“It seems odd to have an organisation that has very little public profile, doesn’t name people and I can’t help but think that it’ll reduce its effectiveness. I mean, those people will be very pleased to go home and not have their names in The Australian.”