Documents reveal the National Anti-Corruption Commissioner Paul Brereton had a conflict of interest and recused himself from proceedings related to the Robodebt scandal. Or did he? Michelle Fahy and Elizabeth Minter investigate.
The decision by the National Anti-Corruption Commission not to investigate the six public servants over the Robodebt scandal appears to have been “infected by the bias of Commissioner Justice Paul Brereton and, if so, should now be disregarded”, says Stephen Charles AO KC, a former judge at the Victorian Court of Appeal and a former board member of the Centre of Public Integrity.
Robodebt Royal Commissioner Catherine Holmes recommended in a sealed section of her final report that the public servants be referred to the NACC for civil action or criminal prosecution.
Documents released under Freedom of Information to Jommy Tee (researcher, writer and MWM contributor) reveal significant mismanagement by Commissioner Brereton of a major conflict of interest underlying the NACC’s decision not to investigate the Robodebt referrals,
raising serious concerns about the viability of Justice Brereton remaining as the NACC’s top official.
The documents show that within three days of the NACC commencing operations, Commissioner Brereton had declared a potential conflict in a top-level meeting because one of the referred individuals was “well-known to him.”
Early drafts of the minutes from the meeting show that Brereton was not going to be involved “in the consideration of the material.” By the final draft, however, the wording was significantly watered down to Brereton not being involved in the “decision-making.”
In a letter to Attorney General Mark Dreyfus the following month, Brereton said he would “recuse myself from decision-making concerning [an undisclosed person].”
RoboDebt Royal Commission: Kathryn Campbell must be first to go
The recusal that wasn’t
Brereton uses the word “recusal” numerous times when explaining his management of his conflict of interest, but the evidence shows he did not undertake an actual “recusal”.
The Oxford English Dictionary defines recusal as “the withdrawal of a judge, prosecutor, or juror from a case on the grounds that they are unqualified to perform legal duties because of a possible conflict of interest or lack of impartiality/” In other words, the person steps away entirely from the matter and has no further involvement.
Stephen Charles states: “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.”
In an email on 16 August 2023, Commissioner Brereton wrote that notwithstanding his position of conflict, it is “important and appropriate that I be aware of what is happening.”
Furthermore, at a meeting on 19 October 2023, Commissioner Brereton referred to his previously disclosed conflict relating to [an undisclosed person] and then stated that: “he would not be the decision maker for the matters,” but that he would “make comments as the matter was discussed.”
According to Charles: “The documents show that Commissioner Brereton believed that, notwithstanding his position of conflict, it was ‘important and appropriate’ that he be ‘aware of what is happening’.” Brereton also stated that “it is perfectly normal to receive and read evidence and then not take it into account because it is not admissible, etc.”
Charles continues: “It can be assumed from these comments that Commissioner Brereton believed that since he would not be the ultimate decision-maker, he was entitled to be present during discussions of whether the NACC should receive and act on Commissioner Holmes’s matters and also make comments, thus intervening in the discussion.”
“If this is a correct assessment of the Commissioner’s views and the manner in which NACC made its decision not to act on the Robodebt matters, they are contrary to well-established legal principle and simply cannot be justified.”
NACC’s decision was infected by the Commissioner’s bias and should now be disregarded.
In explaining Brereton’s ongoing involvement, the NACC said that the Commissioner had “a legitimate and important interest in the legal, policy, systems and resourcing issues raised by the Robodebt royal commission referrals.”
“The conflict was managed by delegating responsibility for making the decision to an experienced deputy commissioner, who had no conflict,” the NACC said.
Robodebt Royal Commission
On 7 July 2023, Robodebt Royal Commissioner Catherine Holmes presented her report on Robodebt, which included a sealed chapter that recommended a number of individuals be referred for civil and criminal prosecution.
When announcing its decision on the Robodebt matter, a statement from the NACC on 6 June 2024 revealed that its top official, Commissioner Paul Brereton, had declared a conflict of interest in relation to Robodebt, but the NACC and Brereton refused to provide any details about it.
It is widely accepted that the former head of the Department of Human Services, Kathryn Campbell, who was heavily involved in establishing and implementing the unlawful Robodebt scheme and subject to extensive questioning at the Royal Commission, is one of the six people referred to the NACC.
We have reported on the relationship between Commissioner Brereton and Kathryn Campbell, who served together over many years as senior officers in the Australian Army Reserve, both attaining the rank of major general. Our report included photos of the two together, originally published by independent journalist Shane Dowling.
One reason the NACC gave for not pursuing the matter was because of “the oppression involved in subjecting individuals to repeated investigations.”
The FOI documents confirm that Brereton had a “close association” with one of the six people referred to the NACC, later revealed to be related to his service in the army reserve, and that the person was “well known” to Brereton. These details all point towards the person in question being Kathryn Campbell.
The NACC’s decision on Robodebt is being investigated by NACC inspector Gail Furness.
Robodebt and Robododger: PwC’s consulting operation revealed
Conflict of interest
The documents obtained through FOI show Commissioner Brereton flagged his potential conflict of interest on July 3, three days after the NACC opened for business. Four days later, he formally advised NACC colleagues of his conflict.
Email sent by Paul Brereton, 7 July 2023. Recipient names were redacted by the NACC. (From FOI document 7.)
By 16 August 2023, Commissioner Brereton has decided he should not be the decision maker in any of the Robodebt matters, but believes it is “appropriate” that he be kept abreast of the investigation.
Extract from an email sent by Paul Brereton, 16 August 2023. Recipient name was redacted by the NACC. (From FOI document 10.)
On 19 October 2023, Commissioner Brereton again referred to his conflict of interest but said he would make comments as the matter was discussed.
From the minutes of a NACC Senior Assessment Panel, Thursday 19 October 2023 at which Commissioner Brereton was chair. (From FOI document 16.)
As reported by the ABC and elsewhere, Robodebt was a “massive failure of public administration”, an “extraordinary saga” of “venality, incompetence and cowardice” and a “human tragedy”. Its 500,000-plus victims, and the broader Australian public, had a right to expect that the NACC’s consideration of the matter would be beyond reproach.
The monster that ate hope: Robodebt was a tragedy 40 years in the making
Michelle is an independent writer and researcher, specialising in the examination of connections between the weapons industry and government. She writes for various independent publications and on Substack on Undueinfluence.substack.com.
A 30-year veteran of the mainstream media, Liz was the editor of MWM until June 2021. Liz began her career in journalism in 1990 and worked at The Age newspaper for two 10-year stints. She also worked at The Guardian newspaper in London for more than seven years. A former professional tennis player who represented Australia in the 1984 Los Angeles Olympics, Liz has a Bachelor of Arts and a Bachelor of Letters (Hons).