By David Crowe
Integrity experts have called for the resignation of Australia’s first federal anti-corruption commissioner after a damning review of his agency’s controversial decision not to pursue federal officials over the unlawful robo-debt scheme.
The National Anti-Corruption Commission will now appoint an outside expert to revisit its decision in June to reject further investigations into robo-debt officials, clearing the way for an investigation into whether they were guilty of corruption.
Inaugural National Anti-Corruption Commission chief Paul Brereton has been rebuked.Credit: AAP
In a report released on Wednesday morning, National Anti-Corruption Commission Inspector Gail Furness concluded that the commissioner, Paul Brereton, disclosed a conflict of interest in relation to the robo-debt matter but said he should have withdrawn from the matter completely, resulting in a finding of “officer misconduct … that is not unlawful but arose from a mistake of law or fact”.
Two integrity experts said Brereton should resign because he had engaged in misconduct and had failed to manage a conflict of interest, while another said he should be “chastened” over the official review into his handling of the matter.
The review by Furness, who has the power to examine the commission’s work, also triggered a broader debate about whether the corruption watchdog was fulfilling its mission less than 18 months after it began its work.
The conflict of interest is said to centre on Brereton’s acquaintance with Kathryn Campbell, the secretary of the Department of Human Services during much of the robo-debt scheme, although the review released on Wednesday redacted the name of the “referred person” who triggered the concerns.
Robo-debt royal commissioner Catherine Holmes found in July last year that 526,000 people were asked to repay money they did not owe and that six federal officials should face further investigation, leading her to refer six individuals to the NACC.
The NACC announced in June it would not pursue the referrals. Brereton, acknowledged he had a conflict of interest because he had a close association with someone who had been referred.
Furness concluded that Brereton disclosed the conflict of interest and delegated a decision on the referrals to a deputy, but then remained involved in discussions including the final meeting that ruled against further investigation.
“I found that, in light of the conflict of interest, the NACC Commissioner should have not only designated a delegate but removed himself from related decision-making process and limited his exposure to the relevant factual information,” she wrote.
“This was not done. I found that the NACC Commissioner’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.
“The NACC Commissioner contributed to the discussion at that meeting, settled the minutes of that meeting and was involved in formulating the reasons for the decision and also the terms of the media statement.”
Furness said natural justice or procedural fairness required Brereton to avoid participating in the robo-debt decision, and she said this was an error of judgment rather than a matter of mere procedure.
“I concluded that the NACC Commissioner engaged in officer misconduct,” she said, adding that this was not unlawful but arose from a mistake of law or fact under Section 184 of the legislation that set up the NACC.
Attorney-General Mark Dreyfus noted the call by the NACC to appoint an outsider to review its decision, but did not comment on whether the peak agency erred in its initial decision.
Former NSW Supreme Court judge Anthony Whealy, who chairs the not-for-profit Centre for Public Integrity, said the inspector’s report showed misconduct by Brereton.
“I think we’ve got to draw a distinction between unlawful conduct by a commissioner and this type of misconduct, which is reprehensible but not necessarily [deserving] of termination,” he said.
“The commissioner recognised a conflict, but he didn’t deal with it as appropriately as he should have. What he should have done was to recuse himself altogether from any aspect of the decision-making. And he didn’t do that.”
Whealy said the positive lesson from the review was that the oversight of the NACC worked well and Brereton should be “chastened” by the findings, which should lead to better decisions on any future conflicts.
Melbourne Law School associate professor William Partlett, a fellow at the Centre for Public Integrity, was more critical of Brereton for not removing himself entirely from the robo-debt referrals decision.
“The commissioner of an anti-corruption commission should be completely above reproach, and the fact that the inspector has made that finding, I think, is not a good position for him to be in,” Partlett said. “I think he should resign for that reason.”
Barrister Geoffrey Watson, a former counsel assisting the NSW anti-corruption commission, also said the NACC commissioner should step down.
Watson said the NACC should have acceded to the royal commission’s referrals.
“This was the most terrible breach of public trust in living memory. It’s different to ordinary corruption. In ordinary corruption, the issues are money and power. Here, lives were lost,” he said.
All three integrity experts said the NACC should act on the referrals from the royal commission into robo-debt and reverse its June decision, with Whealy saying the commission had a duty to do so.
“The NACC is the only body with the jurisdiction to determine whether any of this behaviour constituted corrupt conduct under the NACC legislation – no-one else could do that,” he said.
“Catherine Holmes couldn’t do it. That’s why she referred it. So I think myself that none of the reasons given for not pursuing the investigation were of any substance. The NACC should go ahead and investigate these matters.”
Watson said the robo-debt program not only concerned federal money and public trust but had been linked to the deaths of people who were wrongly asked to repay money, highlighting the need for the NACC to pursue the referrals.
Partlett said the robo-debt failure was a breach of public trust.
“The fact that the NACC did not investigate something of that nature suggests that it does not understand that role that it should be playing.
“That suggests that we need new leadership at the NACC.”
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