Cracks in the NACC. Brereton protected while corruption remains hidden

The National Anti-Corruption Commission (NACC) is engulfed by missteps and scandals, further diminishing trust and confidence in the Labor Government. John Adams reports.

Not a week can go by without a new negative media story coming out about the NACC, either concerning the conduct of its Commissioner, Paul Brereton, or questions about its operations and the lack of major results.

In July 2023, the NACC opened its doors to major fanfare and high hopes after years of scandals involving Commonwealth Ministers and senior public servants, resulting, according to several surveys, in trust in government falling to all-time lows.

Given this context, the policy objectives of the NACC were not just to operationally detect and root out corrupt conduct, but also to strategically lift trust and confidence in the Commonwealth’s political and bureaucratic institutions.

However, after 28 months of operation and public expenditure of more than $140m, the NACC has had the complete opposite effect, as a public chorus of concern and criticism continues to grow louder across a wide cross-section of stakeholders.

Deafening silence at flawed process. NACC and the Robodebt investigation.

Commissioner Brereton misbehaving

Part of the consternation stems from the contemporary and historic behaviour of the NACC Commissioner, which includes:

• his direct and indirect actions, which sought to protect senior Commonwealth officials from findings of wrongdoing (whether as part of the Afghanistan War Crimes Inquiry or Robodebt);
• his ongoing conflicts of interest with the Australian Defence Force and the Department of Defence; and
• misleading the Federal Parliament, resulting from concealing critical information from the NACC and its Chief Executive Officer.

While some, such as leading public integrity expert, Geoffrey Watson SC, have suggested that the NACC’s troubles stem from its timid leadership team, the NACC’s problems go far deeper.

“The NACC needs to change. I have had first-hand experience of the way in which these organisations depend upon the leadership team if they are to be effective. The leadership needs to be positive and dynamic. Especially at a time when it is establishing itself and exploring its jurisdiction, the leadership needs to be bold and fearless.

“Instead, the current leadership of the NACC is timid and negative. Among the papers it produced are comments by its commissioner expressing a reticence to make a decision because if the NACC made an adverse finding, it would be challenged in court. Well, that is true, but it is not a reason not to pursue the crooks corrupting our system. The leadership should be welcoming challenges and meeting them head on.”

Alarmingly, significant evidence is emerging from across multiple preliminary investigations that the NACC is deliberately avoiding collecting critical evidence from material witnesses and is thus actively, and in some cases purposely, concealing corrupt conduct.

Preliminary vs corruption investigations

Under the National Anti-Corruption Commission Act 2022 (NACC Act), the NACC may conduct a ‘preliminary investigation’ rather than a ‘corruption investigation’.

Both of these forms of investigation commence after the NACC has completed its initial triage screening process.

Formally, section 41 of the NACC Act states that the purpose of a preliminary investigation is to confirm the existence or nature of a corruption issue or to assist the Commissioner to decide whether or how to deal with a corruption issue.

In plain English, the purpose of a preliminary investigation (or assessment), according to public comments made by NACC Deputy Commissioner Kylie Kilgour in July 2025 in a published podcast, is to determine whether the NACC has a “viable hypothesis of corrupt conduct” which is of a serious or systemic nature.

What a ‘viable hypothesis’ objectively means in practice, and how long it takes the NACC to determine whether a viable hypothesis exists, is difficult to know.

What we do know is that during the course of a preliminary investigation, the NACC is able to:

• issue legal notices to produce, compelling Commonwealth agencies to hand over specified documents; and,
• conduct voluntary interviews.

However, when such a viable hypothesis is established, the NACC can move to a formal corruption investigation, either conducted:

• solely by the NACC;
• jointly between the NACC and another Commonwealth agency (or agencies); or
• solely by the responsible Commonwealth agency.

In the case of Operation Pelican (which occurred in early 2024), the NACC was able to establish an official corruption investigation at lightning speed (i.e., within days) whereas in other cases, a NACC preliminary investigation can drag out for over 76 weeks.

Flawed preliminary investigation process

Nevertheless, what has become clear is that in the context of preliminary investigations, the NACC, in particular cases, is:

• refusing to speak to complainants to ensure it has a clear understanding of the alleged corrupt conduct and associated submitted evidence;
• actively discouraging complainants from submitting additional relevant evidence;
• obtaining documents from particular Commonwealth agencies or relevant individuals through notices to produce;
• conducting superficial (non-critical) assessments of the submitted documents;
• accepting the claims of Commonwealth agencies or senior Commonwealth officials without any in-depth interrogation or critical assessment; and
• refusing to test the claims of Commonwealth agencies or senior Commonwealth officials with material witnesses who are in a position to point out deficiencies in the submitted claims.

The net effect of the NACC’s approach is to purposely avoid collecting material evidence in circumstances where the Commissioner (and the NACC more broadly) wishes to shield a Commonwealth official (e.g., the Prime Minister) from a corruption finding.

In addition, it seems the NACC is accepting the statements and assurances of senior Commonwealth Ministers and senior departmental or agency officials,

without any further scrutiny or investigative work.

This pattern can be witnessed in one high-profile referral to the NACC, where Geoff Shannon was the victim of a one-sided, rigged investigation by the Australian Securities and Investments Commission (ASIC) and subsequent malicious criminal charges brought by the Commonwealth Director of Public Prosecutions (CDPP).

CommBank’s Matt Comyn, ASIC face mal-prosecution claims from Unhappy Banking founder Shannon

The criminal charges against Shannon were not only dismissed by the Magistrates’ Court, but ASIC was admonished by the judge, and costs were awarded against the Commonwealth. The NACC’s approach was to simply obtain ASIC’s file of evidence, together with ASIC’s internal communications and communications with the CDPP.

The NACC dismissed Geoff Shannon’s referral after an initial assessment and preliminary investigation, which spanned 76 weeks, on the basis that material obtained by the NACC contained “no indication that the investigators acted dishonestly, or for an improper purpose”.

However, the question is,

when will a Commonwealth official ever self-confess in writing to being dishonest or to knowingly act improperly?

NACC Inspector failure

For months now, protests and appeals have been made to the NACC Inspector, Ms Gail Furness SC, regarding the NACC’s assessment and investigative approach, especially in the context of another high-profile referral involving very senior Commonwealth officials, which is currently before the NACC.

While the NACC Inspector claims she has no legal jurisdiction to dictate to the NACC how it should conduct its assessment and investigative work, the Inspector is charged with ensuring that the NACC is free from corrupt conduct, agency maladministration and officer misconduct.

This includes, according to the NACC Act, ensuring that:

• the NACC acts reasonably;
• the NACC acts without improper motives; and
• the NACC’s work is free from errors of fact or law.

However, according to recent testimony provided to the Senate Legal and Constitutional Affairs Legislation Committee, the NACC Inspector has not, outside of Robodebt, completed any investigations or audits into the NACC’s assessment or investigative work.

Thus, the Inspector is not in a position to provide any assurance as to the quality and robustness of the NACC’s work and whether the NACC is deliberately deploying flawed methodologies with the express purpose of concealing corrupt conduct of high-ranking Commonwealth officials.

A public policy failure

The NACC under the current Commissioner is a catastrophic public policy failure. Not only has it achieved few meaningful results, squandered significant public resources and lost the confidence of significant sections of the Australian people, but it has taken active steps to

prevent the collection of material evidence in circumstances involving high-ranking Commonwealth officers.

The whispers on social media that the NACC is effectively a cynical decoy that gives the appearance of an anti-corruption agency, but in reality operates as a protection racket for elite public Commonwealth officials, appear to have more credibility by the day.

Rather than take active steps to ensure the NACC’s credibility remains intact, the NACC Inspector continues to shield the NACC from legitimate criticism through correspondence of dismissive, deflective legalese rather than through the product of a bona fide investigation or audit.

With the NACC’s credibility in tatters and little prospect of recovery, only a dramatic intervention by Parliament can prevent a further disillusionment with Australia’s political and bureaucratic institutions.

Tension mounts at the NACC as Robodebt re-run looms