NACC dropped its investigation into Brereton while lesser mortals are relentlessly pursued. Paul Begley on systemic corruption within the NACC.
Scouring through Inspector Gail Furness’s rationale last week for discontinuing her investigation of former NACC Commissioner Paul Brereton, a reader could be forgiven for suspecting that Attorney-General Mark Dreyfus may have found it somewhat amusing that the man he appointed in March 2023 to a five-year position heading up Australia’s much anticipated National Anti-Corruption Commission was desperately keen to retain his titles of Major-General of the ADF Reserves, Colonel Commandant of the Royal NSW Regiment and the University of NSW Regiment, and Inspector General of the ADF.
Inspector Furness alluded at some length to the Attorney General’s letter appointing Brereton. It anticipated a likelihood that the soldierly roles of the Major-General and Colonel Commandant contained the potential for conflicts of interest with his new job, and warned him to manage them.
The largely ceremonial military titles have the ring of a grown man still in awe of toy-soldier honorifics that may have captivated him in pre-pubescence but that he has not outgrown as the years have passed. His attachment to the titles recalls a male character from one of Martin Boyd’s Langton novels, whom Boyd characterised as a ‘pickled boy’.
Were his continuing fondness for impressive sounding honorifics attaching to himself seen as a character flaw at the time of appointment, Dreyfus may in hindsight have regretted failing to demand that Brereton relinquish his soldierly titles as a condition of accepting the NACC appointment.
War crimes report
A sign of what might have been a red alert three years before Brereton’s NACC appointment was a 2020 independent panel inquiry that put on display his reluctance to demand full accountability for the murder of 39 Afghan prisoners and civilians during Australia’s engagement in the Afghanistan war.
Nineteen Australia soldiers were found in Brereton’s Report to have been responsible for those war crimes but Brereton stopped short of naming the top brass who oversaw that engagement, a decision which reportedly caused ‘anger and bitter resentment’ among serving and former members of the special forces.
One of the considerations of Furness in deciding not to continue her investigation of Brereton over the ADF connection was that she claimed the investigation was a personal rather than a systemic matter, which was therefore made superfluous by his resignation.
It was a rationale assisted by her allusion to the NACC chief executive having made a recent change to Rule 16 of the Public Governance, Performance and Accountability Rule 2014, which now requires the commissioner and deputy commissioners to jointly and severally share with each other any matters of interest that might materially affect the affairs of the commission.
A predilection for secrecy
That rule change was deemed by Furness to be an amendment that dealt in future with Brereton’s past predilection for secrecy which became apparent when it was revealed that none of the statutory officers with whom he worked closely on the NACC were aware of his continuing ADF connection.
The amended rule now guarantees transparency within the NACC hierarchy and the offender who occasioned the rule change is gone. So, nothing to see here of a systemic character.
From a strictly legalistic perspective, the Inspector might conclude, as she did, that nothing is now in play that is systemic, hence an investigation of the former NACC Commissioner at public expense is no longer warranted.
That said, looking at what is meant by the word ‘systemic’ from a broader perspective,
the malaise that has dogged the NACC since its inception has been cultural.
The question of culture
The culture is one in which systemic reliance on decisions founded on fine legalistic distinctions has prevailed over a sense of mission that robustly pursues wrongdoing among public officials and fearlessly brings wrongdoers to account, including wrongdoers who come before it with impressive titles.
That cultural malaise was strikingly apparent when the NACC was asked to investigate the ‘Robodebt Six’ in July 2023. The Robodebt Royal Commissioner had referred the six individuals to the NACC for “civil action or criminal prosecution”.
Yet in June 2024 the NACC found flimsy legalistic reasons set out over a one-page press release which avoided taking up the royal commissioner’s referral of the powerful offenders.
The matter was further compounded by the deputy commissioner who wrote the press release claiming that Commissioner Brereton had recused himself from the decision because of a conflict of interest. That was false. He was involved in the decision-making from beginning to end, as Inspector Furness found to her credit.
To her credit also, Furness reversed that decision in 2025, and the NACC was told to try again. But the cultural malaise prevailed. Again. The NACC chose to conduct its repeat investigation in secret and published a hairsplitting rationale by a deputy commissioner that ensured the offenders with the most prestigious titles were free to walk away unscathed.
Robodebt
The context in which the NACC’s legalistic culture persisted needs to be seen against the 470,000 citizens whose lives were shattered by the Robodebt scheme. Pursued by debt collectors for debts they didn’t owe and publicly accused by powerful government ministers of being fraudsters who would be hunted down and jailed, those 470,000 people were regarded as guilty until they could prove their innocence.
The unlawful scheme reversed the onus of proof on those who received letters of demand and, as an added mark of cruelty, deprived them of access to public officials who could quickly assist them to establish the fact that they owed no money. Unsurprisingly, an unknown number saw their position as hopeless and took their own lives.
By contrast, the NACC provided standard counselling assistance to the individuals referred to it by the royal commission, with former Senator Rex Patrick discovering through FOI that the instigator of the illegal scheme, Scott Morrison, had been given legal assistance to the tune of $461,445 to defend himself over Robodebt matters.
Against that cultural backdrop, the decision by Inspector Furness to abandon the investigation into complaints about Brereton are a continuation of the systemic malaise in which
titled individuals in positions of power are shown leniency while lesser mortals are relentlessly pursued.
Citing cost to the taxpayer as a reason to discontinue the Brereton investigation, is in that context derisory.
Kicking down
The short history contained within the NACC’s ‘success’ stories consists of lesser lights in the public service being named, shamed and convicted of corrupt behaviour, while the names of those in more senior ranks are suppressed and hearings in which they are involved are held in secret.
The Operation Bannister report on two public servants was a case in point. Brereton investigated the awarding of uncontested lucrative Home Affairs contracts to Paladin Holdings for what amounted to sub-par offshore services that involved two members of the Senior Executive Service within Home Affairs in the awarding of the contract.
Those senior executives were referred to pseudonymously as Ms Anne Brown and Mr Carl Delaney. Brown was related to the Paladin principal who subsequently gifted her $200,000 which enabled her to purchase a house. Delaney was subsequently appointed to the Paladin board.
Brereton found no evidence of corruption and the public was no wiser as to the identities of Brown or Delaney.
A dictum among experts in public governance integrity is that perceptions of corruption are as damaging to public trust as actual corruption. In dropping her investigation into Brereton, Inspector Furness has regrettably added her contribution to the widespread perception of Australia’s ill-fated anti-corruption saga as a travesty.
NACCered from the start. What will Brereton’s departure change?
Paul Begley worked in public affairs roles for three decades, most recently as general manager of government and media relations with the Australian HR Institute.