The decision by National Anti-Corruption Commission (NACC) leadership not to investigate those found to be responsible for the Robodebt scandal is a slap in the face for victims, Sarah Russell writes.
Public disaffection with the National Anti-Corruption Commission’s (NACC) secrecy and failure to prosecute corruption is on the rise as the Government and Opposition voted against an amendment yesterday by senators Jacqui Lambie and David Pocock to lift the blanket secrecy over Commission hearings.
Adding fuel to the fire, the NACC’s finding that there was no corruption in its investigation of Paladin was described by independent MP Zali Steggall as “staggering”.
Yet the writing was plainly on the wall, as Freedom of Information disclosures, mostly ignored until now, show serious issues with the Commission’s integrity and processes, particularly in relation to its failure to investigate perhaps the greatest scandal which enveloped the last government, Robodebt.
Robodebt was a massive $1.8 billion failure of public administration. Its 500,000-plus victims and the broader public had a right to expect that the NACC consideration of the Royal Commission referrals would be beyond reproach.
Yet documents detailing NACC’s internal processes, which the NACC was forced to release under FOI, are damning. The documents, which question the NACC’s integrity, have been on its website for several weeks.
But where is the public outrage?
No surprise the Labor/Coalition duopoly just voted down @DavidPocock’s & Jacqui Lambie’s amendment to the #NACC Act to lift the secrecy blanket over hearings.
Why have the old parties again voted against public interest transparency? Permanent governing class interests! #auspol https://t.co/YnESq7PrzF pic.twitter.com/dahPTxQWsQ
— Rex Patrick (@MrRexPatrick) October 10, 2024
On June 6, the NACC released a two-page statement announcing it would not be pursuing the six public officials but would instead “focus on ensuring lessons learnt”.
The statement noted that ‘the conduct of the six public officials … had already been fully explored by the Robodebt Royal Commission’ and that ‘a further investigation’ was unlikely to produce ‘significant new evidence’.
However, the conduct had not been fully explored because
the Royal Commission’s terms of reference did not include the power to investigate corruption.
Limited terms of reference
Former NSW Supreme Court judge Anthony Whealy KC, now chair of the Centre for Public Integrity, said the Robodebt Royal Commissioner Catherine Holmes did not have the jurisdiction or capacity to make findings on whether persons referred to the NACC had engaged in corrupt conduct.
Whealy said that in refusing to act on the six referrals, the NACC had
betrayed its core obligation and failed to fulfil its primary statutory duty.
The NACC also said it was undesirable to conduct ‘multiple investigations’ into the ‘same matter’. The Australian Public Service Commission recently concluded its inquiry, but it could only investigate five of the six individuals. The sixth person is believed to be a politician, so he or she has not been subjected to ‘multiple investigations’.
The Inspector of the NACC, Gail Furness, recently announced an investigation into the NACC’s refusal to consider the referrals after receiving about 900 complaints, many of which alleged corrupt conduct or maladministration by the NACC itself.
The non-recusing recusal
According to ($) Jason Koutsoukis in The Saturday Paper, the NACC statement revealed that the Commissioner, Paul Brereton, had recused himself. However, the statement did not use the word ‘recuse’. The statement said ‘delegate’: ‘In order to avoid any possible perception of a conflict of interest, the Commissioner delegated (my italics) the decision in this matter to a Deputy Commissioner.’
Stephen Charles AO, former Victorian Court of Appeal judge and a previous board member of the Centre for Public Integrity, stated: “When a judge in court proceedings recuses himself because of such a conflict, that judge does not – must not – take any further part in the proceedings; otherwise any decision by the court is likely to be stained by his involvement and set aside for the judge’s bias.”
Brereton’s response was extraordinary. He claimed that the term ‘recuse’ doesn’t mean what it does at law or in common usage, but rather, that it means only that a conflicted person is not the ultimate ‘decision maker’ in a case.
Why did NACC decline to pursue the Robodebt scandal? Conflict of interests revealed.
Although Brereton did not declare the exact nature of his ‘conflict of interest’, it is widely believed to be his longstanding relationship with Kathryn Campbell, the former head of the Department of Human Services, who was heavily involved in establishing and implementing the unlawful Robodebt scheme. Brereton and Campbell served together over many years as senior officers in the Australian Army Reserve.
NACC integrity policy failures
NACC’s Integrity Policy outlines a number of strategies to ‘mitigate or manage risks’ relating to referrals of people with whom NACC employees have a close association. Two key strategies for managing such a conflict of interest include ‘limiting exposure to the relevant information’ and ‘removing the employee from related decision-making processes’.
By not doing either of these things, Commissioner Brereton failed to adhere to NACC’s guidelines for managing conflicts of interest.
The NACC meeting minutes show Brereton remained present throughout the majority of a senior assessment panel meeting. According to Stephen Charles, it appeared Brereton considered he was “entitled to be present” in the NACC’s Robodebt discussions. MWM understands that Brereton only left the room towards the end as the decision was made.
🚨NACC finds no corruption in Paladin investigation. Please read the facts. They are staggering. This finding highlights that the watering down of the NACC legislation between the Govt & Coalition has made it ineffective.Act clearly needs amending. #auspol https://t.co/atx2kzGf7O
— 🌏 Zali Steggall MP (@zalisteggall) October 10, 2024
The NACC has refused to disclose which Deputy Commissioner was delegated as the final decision-making, claiming that revealing the identity of the decision maker would likely place them at risk of being targeted and potentially subject them to abuse, harassment and threats.
Quite a statement, given how the victims of Robodebt were treated and the fact that Deputy Commissioners are paid more than $600,000 a year.
The extraordinary secrecy is also not something you’d expect from such highly paid staff at an independent agency tasked with exposing systemic corruption in the Commonwealth public sector.
NACC investigating itself
The NACC legislative setup includes the role of an Inspector, “independent of the NACC and whose role is to oversee the operations and conduct of the NACC to ensure it complies with the law and acts fairly.”
The Inspector of the NACC, Gail Furness SC, will be conducting an investigation into the matter of why and how the NACC decided not to pursue those responsible for Robodebt. To many, it seems absurd that the NACC launched what seems like an investigation into itself, and it provides no comfort to the victims of Robodebt.
The hope that the NACC would provide a mechanism for justice and holding power to account has been dashed. It seems transparency and accountability have again left the building.
The Robodebt victims deserve better.
* Main pictured top row from left: Paul Brereton, Ben Gauntlett, Nicole Ross. Bottom row: Kylie Kilgour, Philip Reed, Gail Furness
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.