The handling of the Robodebt scandal is an insight into far deeper problems in the National Anti Corruption Commission. David Shoebridge on the NACC Inspector’s report into the failure to investigate Robodebt.
This week the Inspector of the NACC delivered a brutal assessment of NACC’s decision not to investigate the Robodebt scandal. She concluded that the head of the NACC, Commissioner Brereton, engaged in “officer misconduct” in how he dealt with it and that the Robodebt scandal needed to be reinvestigated by the NACC.
Before delving into the mess that happened inside the NACC it is worth remembering this was not just any corruption referral. The Robodebt scandal was referred to the NACC by some 1,200 individuals as well as by the Royal Commission into the scandal. The Royal Commission sent the NACC a large body of confidential evidence concerning 6 people who it concluded may have engaged in corrupt conduct regarding Robodebt.
The Inspector found Commissioner Brereton failed to remove himself from the NACC’s handling of the Robodebt matter despite his admission that one of the 6 people referred by the Royal Commission was, in his words, “well known to me.” He later said he had a “close association” with her.
Conflict of interest
The Inspector’s report details how Commissioner Brereton declared his conflict of interest, purportedly delegated the final decision on Robodebt to a Deputy Commissioner, and then remained deeply involved in almost every aspect of the matter.
Because of the detail in the Inspector’s report we now know that Commissioner Brereton led the key discussions about the Robodebt inside the NACC, he sought internal legal advice about it and even settled the minutes of meetings held about it. He then topped it all off by authorising a misleading media release trying to explain why the NACC was doing nothing.
The Inspector concluded that this conduct was unlawful and that “a fair-minded observer might reasonably apprehend that the NACC Commissioner’s involvement might have impinged on the impartiality of the decision-making” process.
Thank goodness for this clarity from her. As a result of this blowtorch being applied there will now be another review by the NACC, which none of the existing senior staff can take part in, to see if it should investigate Robodebt.
Since the release of the Inspector’s report we have had both Labor and the Coalition rushing to the defence of Commissioner Brereton, saying the Inspector’s brutal correction is proof that “the system is working” and that the public had “total trust” in Commissioner Brereton. If only that was true.
This was not a one-off
When you look a little deeper into this mess you see that Commissioner Brereton’s actions were not a one off mistake, but an ongoing course of conduct that reflects poorly on his judgement and his ability to lead the National Anti-Corruption Commission.
You can get a clearer understanding of the deeply inappropriate involvement of Commissioner Brereton from the report by Alan Robertson SC that is annexed to the Inspector’s decision. The Inspector asked Mr Roberston to undertake an independent review of Commissioner Brereton’s handling of his conflict of interest. Critically Robertson found that Brereton led the discussion at the key meeting on 19 October 2023 where the NACC effectively decided to not investigate the Robodebt scandal:
- The Commissioner’s involvement in the decision-making under section 41 was comprehensive, before, during and after the 19 October 2023 meeting at which the substantive decision was made.
- The views the Commissioner expressed at the meeting on 19 October 2023 were not limited to policy questions concerning the referrals generally as the policy questions had a strong factual element specific to, amongst others, [Referred Person 1]. The discussion was framed by the issues raised by the Commissioner. The Commissioner settled the minutes of the 19 October 2023 meeting.
Before the key meeting Commissioner Brereton also sought internal legal advice on whether or not the appalling behaviour that underpinned the Robodebt scandal could even be considered as corruption by the NACC. The terms of his request are troubling, they included this assertion:
The complaint is that advice was given and decisions made which at best did not reflect and at worst deliberately concealed that the proposed course of action was unlawful. The motive appears to have been, not private benefit, but implementing the perceived will of the Government of the day. Whether this type of conduct by public officials attracts the definition of “corrupt conduct” may be novel.
This was the Commissioner not only speculating on the private motives of a person regarding who he had a declared conflict of interest, but also suggesting a line of argument that would have prevented the NACC from ever investigating that person’s behaviour at all.
Corrupt conduct by corruption authorities?
Thankfully the legal department said that unlawfully progressing the political agenda of the government of the day likely would amount to corrupt conduct, hardly a novel conclusion whatever Commissioner Brereton might think. Despite this Brereton made explicit reference to a standard legal qualification in the advice to tell other senior officers that the issue was ”not free of doubt” and the NACC could “take this uncertainty into account” when deciding what to do (or not do).
In June 2024, over six months after the key decision not to investigate was made, the NACC finally issued a media release informing the public of the decision. Commissioner Brereton authorised that release. One of the reasons given in the release for not investigating was: “There is no value in duplicating work that has been done by others, in this case with the investigatory powers of the Royal Commission, and the remedial powers of the APSC … the Commission cannot grant a remedy or impose a sanction (as the APSC can).”
The APSC is the Australian Public Service Commission. Commissioner Brereton had been advised during the course of the investigation that the APSC had no powers to grant a remedy or impose a sanction over any of the 6 referred persons who had all left the public service. This was also known to all other senior staff who were part of the 6 month long process of settling the media release. It made the media release both untrue and misleading.
Vindication for Robodebt victims elusive as NACC investigates itself
You would have thought that, given all of this, once the Inspector began her independent review of the NACC’s decision Commissioner Brereton would have reflected on his conduct and admitted error. However that was not the case, instead the instinct of Commissioner Brereton was to double down and seek to justify every step he took.
The initial submission to the Inspector from Commissioner Brereton and the NACC dated August 13, 2024, was a 24 page long self-serving justification of his ongoing involvement in the matter. It repeated much of the history set out above, but did not include the full scope of Commissioner Brereton’s involvement in the NACC’s assessment. It rejected any suggestion there was a problem with the handling of the matter, concluding:
“The Commission submits that upon inspection, you will find its decision involved a good faith exercise of discretion. At the core of that discretion are questions about how best to apply the Commission’s resources and prioritise its efforts … The decision was not taken lightly, but was considered, principled and ultimately made in what it considered to be the public interest based on the information available at the time. Public disappointment in a decision of the Commission, whilst regrettable, is also sometimes inevitable, but is not a breach of public trust.”
The fact that Commissioner Brereton didn’t understand that the core problem was his failure to manage his conflict of interest, even after the Inspector began her inquiry, is astounding. The NACC only changed its position in later submissions, reluctantly accepting there was a problem, after it was served with the Robertson SC report that so comprehensively demonstrated Commissioner Brereton’s failures.
A gem
Even when served with the final report of the Inspector the NACC’s media release on October 30, 2024, included this little gem:
The Commissioner considered that having regard to the nature of the relationship … an appropriate balance could be achieved by delegating the decision to an experienced Deputy Commissioner, and by excusing himself from the meeting when the decision was to be made so that it could be reached freely in his absence.
The Commissioner accepts that his judgment in this respect has been found to be mistaken and takes sole responsibility for the mistake … Our system requires that we accept such findings, even when we don’t entirely agree with them.”
If the same facts were presented in the future, would he make the same bad decision?
This is not Commissioner Brereton agreeing with the findings about his conduct, it is him grudgingly accepting the findings were made even though he disagrees with them. The question this poses is, if the same facts were presented in the future, would he make the same bad decision? The only logical answer is that he probably would.
We need the NACC to work, we need it to help restore confidence in government. This is why the Greens campaigned for over a decade to establish it.
However the system isn’t working if the most senior player in it is making his own rules and refusing to genuinely accept the umpire’s call. This means the NACC is in trouble.
Unlike both the government and the opposition I can‘t see any way for the NACC to retain its credibility without immediate and unambiguous accountability. This is not about just revisiting the Robodebt decision, it is now about Commissioner Brereton’s future.
NACC under fire as Commissioner Paul Brereton found guilty of misconduct
David is an Australian Senator for the Greens. His focus is on matters of high public interest including Defence, legal affairs, social justice and political integrity. He was a previously a member of NSW Parliament.