NACC boss Paul Brereton has a disturbing history of giving misleading information. How much more evidence of poor behaviour is needed for him to resign? Sarah Russell asks.
Brereton has misled Parliament, the Attorney General, the CEO of the National Anti-Corruption Commission (NACC) and the public. Senator David Shoebridge is on record saying:
It’s clear he cannot stay Commissioner without major impacts on trust in the NACC.
The NACC caused shockwaves in June 2024 when it announced its decision not to investigate for potential corrupt conduct of five public servants and one politician involved in the Robodebt scandal. The six individuals had been referred to the NACC by Catherine Holmes SC, the Robodebt Royal Commissioner. Holmes described the unlawful Robodebt scheme as an “extraordinary saga” of “venality, incompetence and cowardice”.
Corruption Commission’s Robodebt failure tells of deeper problems with the NACC
In a short media statement announcing its decision not to investigate the Robodebt referrals, the NACC announced that Brereton had “delegated” to a deputy commissioner the decision “to avoid any possible perception of a conflict of interest”.
Misleading the public
After receiving more than 1,200 complaints about the decision not to investigate those referred, NACC Inspector Gail Furness SC launched a review. The NACC Inspector is the independent watchdog who oversees the NACC to ensure it complies with the law and acts fairly.
Furness found that Brereton’s involvement in the decision-making not to investigate the Robodebt referrals was, in fact, “comprehensive”. She found that his behaviour constituted “officer misconduct”.
Misleading Parliament
The Joint Committee on the NACC provides parliamentary oversight of the NACC and its Inspector. At its first hearing on 22 November 2024 – the first opportunity for MPs to question Brereton after Furness had handed down her decision – Brereton gave two misleading statements to Parliament about the Robodebt referrals.
It was left to Inspector Furness, who appeared after Brereton, to correct the evidence given by the nation’s top integrity official, saying, “There were just two matters that arose this morning, factual matters, that I thought I might be able to assist the committee with.”
In his evidence, Brereton had dismissed as “highly speculative” the suggestion that the Robodebt referrals indicated a belief by Royal Commissioner Catherine Homes that corrupt conduct had potentially occurred, “There is nothing in the referral to indicate that a view had been reached that there was corrupt conduct for us to look at.”
Inspector Furness corrected Brereton’s evidence. “… I quote from the Honourable Holmes what she said in her letter seeking an extension … to provide the referral [to the NACC]. It was in order to refer individuals to the National Anti-Corruption Commission should she reach the view
their conduct may meet the definition of corrupt conduct under the NACC Act.
Another misleading statement made by Commissioner Brereton pertained to the legal advice provided by the NACC’s internal lawyers.
Commissioner Brereton had asked for legal advice “as to whether the conduct of the Referred Persons would come within the concept of corrupt conduct for the purposes of the Act”. The advice was that if the conduct was established against Referred Person 1, “in our view it would (lawyer’s emphasis) come within the concept of ‘corrupt conduct’ for the purposes of the Act”.
Commissioner Brereton cited that legal advice was correctly given to NACC colleagues at a meeting at which the Robodebt referrals were discussed in detail. However, in his evidence to parliament, Commissioner Brereton watered down the wording of the legal advice from “would” to “could”.
“The legal advice that we obtained from our lawyers was to the effect that, if proved, the conduct could (my italics) fall within the definition of ‘corrupt conduct’”.
Inspector Furness again had to correct Brereton’s evidence. “I think the commissioner … indicated that the advice could (my italics) constitute corrupt conduct; the advice was that it would (my italics) constitute corrupt conduct. I refer you to Mr Robertson’s report at paragraph 56, where he quotes from that legal advice.”
Hiding relationship
In the same parliamentary hearing, Brereton also misled the committee about the nature of his relationship with one of the six people referred to the NACC.
In documents that were released under Freedom of Information in August 2024, Brereton described that relationship as being a “close association” and that the person was “well known” to him. Yet in the parliamentary hearing, Brereton twice downplayed the relationship by describing the relationship as “professional”.
He stated: “I nonetheless recognised some might think my impartiality could be affected by my prior professional (my italics) association.
He also stated: “I had to strike a balance between my responsibility as the leader and … avoiding the perception that my prior professional (my italics) relationship could affect the decision.”
However, as noted by Alan Robertson KC, who wrote a report for Inspector Furness’ review, Brereton’s attempt to rewrite the nature of the relationship was “gloss”.
The conflict [of interest] existed in the terms it was disclosed,
“rather than in the terms of the gloss (my italics) in [47b] of the NACC’s submission to the Inspector dated 13 August 2024.”
Misleading the Attorney General
Documents released under Freedom of Information in August 2024 show that Brereton never used the word “recuse” or “recusal” when explaining to his NACC colleagues how he would manage his conflict. He said only that he would “delegate” decision-making.
Yet Brereton used the word “recuse” four times in a letter to then Attorney General Mark Dreyfus when explaining how he would manage the conflict of interest. This is quite extraordinary given that the evidence shows he did not “recuse” himself at all but remained heavily involved in the NACC’s internal discussions about Robodebt.
Although it is common for public servants to mislead the public, surely there should be consequences for the head of the nation’s leading integrity body who misleads an Attorney General.
Why did NACC decline to pursue the Robodebt scandal? Conflict of interests revealed.
Misleading his own CEO
The latest example of Brereton’s misleading statements occurred in a Senate estimates hearing earlier this week. Although Phillip Reid, the NACC CEO, denies being misled by Brereton, Reid had to apologise to MPs for giving misleading evidence about Brereton’s consulting for an independent defence watchdog, the Inspector-General of the Australian Defence Force (IGADF).
Senator David Shoebridge suggested that Brereton had misled Reed on two occasions.
“First of all, he misled you by saying it was infrequent, when in fact it’s been at least 22 occasions that he’s provided advice,” Shoebridge said. “And he, secondly, misled you when he said that it was always outside of the commission’s business hours, when in fact, on eight separate occasions, he’s provided advice to the IGADF during the business hours of the NACC.”
The public expects the head of the NACC to be beyond reproach. Instead, we have a Commissioner who fails to recuse himself from the decision-making process about a person with whom he has a close relationship, misleads the Attorney General and the NACC CEO and provides misleading statements to a parliamentary hearing.
On 11 December, Brereton is due to make his second appearance at the Parliamentary Joint Committee on the NACC. This would (or could) be a good time for Brereton to offer his resignation.
Enough is enough.
Fat Cats say what? Too much transparency caused Robodebt scandal
Dr Sarah Russell is a public health researcher. She is the Principal Researcher at Research Matters and Chair of Progressives of the Peninsula. She was formerly the Director, Aged Care Matters.