The establishment of the National Anti-Corruption Commission was one of Labor’s key election promises, with Anthony Albanese vowing to create a watchdog that would find, deter and prevent corruption. Since then the body, and its commissioner Paul Brereton, have come under fire after a decision not to investigate six people referred to the NACC by the robodebt royal commission, with the watchdog’s inspector finding Brereton engaged in misconduct.
So should we nix the NACC? To debate the question in today’s Friday Fight we have The Saturday Paper’s senior reporter Rick Morton to argue in the affirmative and Crikey’s political editor Bernard Keane to make the negative case.
For a Labor government that has under-promised and over-delivered when it comes to disappointment, it’s fair to say the National Anti-Corruption Commission (NACC) has been exhibit A of a dud government. In particular, the failure to decide that robodebt was a case worthy of NACC resourcing crystallised the universal perception that this was not a body that even perpetrators of the most egregious misconduct need be wary of.
Labor seemed determined to nobble it from the outset by insisting that it secure bipartisan support for what was an election commitment. Negotiating a deal on the NACC with Peter Dutton meant a prohibition on public hearings, though, in the end, we got an approach to public hearings less restrictive than Victoria’s IBAC, but significantly tighter than the NSW ICAC. Public hearings are a key weapon in the anti-corruption armoury, which is why politicians hate them so much.
The NACC legislation also enables an attorney-general to interfere with and censor NACC investigations — and we’ve seen rotten attorneys-general in previous governments motivated by the desire to prevent exposure of misconduct committed by their party.
But there’s no issue with the NACC’s remit. The definition of corrupt conduct in its legislation is expansive and is only limited by the requirement that the NACC may investigate conduct “if the commissioner is of the opinion that the issue could involve corrupt conduct that is serious or systemic”. That’s broader than NSW ICAC’s remit, with the only limitation being what the commissioner thinks is “serious or systemic”.
And what the commissioner thinks, it’s fair to say, is where many of the NACC’s problems start.
The big flaw in the NACC isn’t its legislation, but the man charged with implementing it, Paul Brereton. Judging by his remarkable public address recently, Brereton is motivated by an abiding fear of “stigmatising someone as corrupt” — and if that’s the case, he’s in the wrong job.
Stigmatising people as “corrupt” is the very point of the NACC. It is — as Brereton himself says — a key “guardrail” institution, and yet Brereton seems more worried about the hurt feelings of those investigated. Remarkably, as Rick Morton recently reported, Brereton’s concern for hurt feelings even allegedly extends to allowing some of the perpetrators of robodebt to view and edit the NACC’s statement about its decision not to investigate those perpetrators — an action that, if true, further strengthens the case for Paul Brereton to resign forthwith.
As we know, Brereton’s conduct in relation to the robodebt decision was inappropriate: the inspector of the NACC — who appears to have no trouble performing the role assigned to her by the National Anti-Corruption Commission Act — found Brereton engaged in officer misconduct under the act for not properly distancing himself from the decision to not investigate robodebt.
Quite why Brereton didn’t immediately resign on receipt of Gail Furness’ report isn’t clear. Brereton himself seems to be stuck in a cycle of perpetually trying to explain away and justify his misconduct, first devoting a large chunk of a public address to the issue, and then explaining to Senate estimates that he disagreed with Furness’ findings. Problem is, it doesn’t matter whether he disagrees or not; the findings stand, and they furnish an ample basis for his immediate resignation.
It’s worth noting, however, that the NACC decision not to pursue robodebt — now under review following Furness’ forensic demolition of the original decision — was based not on the narrowness of the NACC’s remit, or even on Brereton’s timid, hyper-sensitive interpretation of it, but was a resourcing decision: should the NACC devote what would undoubtedly be significant resources to investigating a matter that had already been the subject of a royal commission?
The question is a valid one — after all, Catherine Holmes’ report is one thousand pages of carefully detailed analysis of the entire history of robodebt and how key decisions in the establishment of an unlawful scheme were made. But with $65 million in annual funding from the government and a headcount expected to reach 260 this year, the purported difficulty of NACC to undertake a major investigation — especially given the failure of the Australian Public Service Commission to undertake any meaningful punitive action against the perpetrators of robodebt — is highly questionable and again reflects on the timidity and misjudgment of Paul Brereton.
Under better management, and a new commissioner prepared to use the full remit provided by the NACC act (including on public hearings, which the commission can hold if they determine they’re in the public interest and to which a loosely defined set of exceptional circumstances apply), the NACC could start to fulfil some of the expectations so thoroughly dashed by Brereton. In decades to come, its inauspicious start should become a footnote to a history of exposing wrongdoing and serving up cases for the Commonwealth Director of Public Prosecutions.
Read the opposing argument by Rick Morton.
