One of the last election’s key themes is having an uncomfortable renaissance. Integrity is, again, the issue de jour.
There’s a synergy between two of this week’s biggest political issues: the potential implications of politicians receiving corporate favours and the National Anti-Corruption Commission’s handling of the robodebt royal commission referrals.
The through-line is conflicts of interest and how they should be managed versus how they often are.
The retired judge Alan Robertson SC’s findings about the process that led to the Nacc’s decision not to investigate the six as-yet unnamed individuals referred to it by the royal commissioner, Catherine Holmes SC, should alarm anyone who believes reality should match rhetoric on matters of integrity and corruption.
In a slightly understated legal manner, Robertson excoriates the Nacc – primarily its commissioner, Paul Brereton – for operating on the apparent belief that simply declaring a conflict of interest was enough to obviate the risk of it distorting the decision-making process.
“There is a real difference between saying that a person will not be the decision-maker and the person will not be involved in decision making about an individual,” Robertson writes in his report to the Nacc inspector, Gail Furness.
“The issue is one of substance rather than form, consistent with the objective nature of the question through the eyes of the third party observer.”
In a statement, Nacc noted the report contained “no finding of intentional wrongdoing or other impropriety”. Brereton accepted his judgment in this respect “has been found to be mistaken and takes sole responsibility for the mistake”.
It’s reminiscent of the old thing about justice being done and being seen to be done – except it’s in reverse. In essence, he’s saying conflicts of interest not only need to be seen to be declared, they require action beyond mere declaration to ensure they don’t infect the course of deliberations. Robertson and Furness found Brereton failed on the latter.
Furness commissioned Robertson to examine the entrails of the Nacc’s robodebt decision after being deluged by public complaints. Robertson finds that Brereton made repeated conflict-of-interest declarations that he knew Person 1 well. Variously, he pledged not to be involved in “decision-making” or in “any decisions” concerning Person 1 and said that should a matter potentially affecting their interests arise, he would “recuse” himself. That last assurance was made in writing to the attorney general.
Robertson finds that Brereton’s practise did not match his assurances.
He notes the particular declaration Brereton made to his Nacc colleagues was caveated.
“However, I will retain an overall interest in the policy questions that arise concerning these referrals generally, because those questions – particular [sic] the scope of ‘corrupt conduct’ – will necessarily have ongoing ramifications for us,” he wrote to them in a conflict declaration email on 7 July last year, the day after receiving Holmes’ referrals.
In his now public report, Robertson reproduces excerpts from the minutes of meetings that laid significant groundwork for the eventual decision not to proceed. At the key meeting on 19 October last year, the minutes record Brereton as promising to “listen to the discussion and then leave”. He appointed one of his deputies as the decision-maker and is recorded as saying he would “make some general observations” before leaving.
The minutes show he then led a discussion in which he suggested they initially “park” the issue of Person 6 – the only referred person who was not a public servant – and discuss the other five as they were all in the same category. He then went on to detail internal legal advice – which Robertson found contained details he should not have accessed – on whether the conduct Holmes had identified was within the scope of “corrupt conduct”. The advice had found it was, but this was “not free from doubt”.
Brereton, the minutes reveal, warned any corruption finding from the Nacc would probably face legal challenge. He raised the risk of the Nacc finding no misconduct and contradicting the royal commission, suggesting that reaching different conclusions was “not in the public interest”. He said the royal commission had been thorough and the Nacc was unlikely to find more.
But it’s the argument he is recorded as making next which is perhaps most astonishing.
The minutes say Brereton noted that a corruption inquiry was usually “a precursor to some kind of remedy elsewhere” and that the commission couldn’t provide a remedy itself. The royal commission had already exposed the conduct, and a remedy could be provided through a criminal prosecution or Australian Public Service Commission (APSC) code-of-conduct proceedings.
“The Commissioner stated that all the Commission could do was make a finding that there was corrupt conduct and that he could not see where the Commission could add value,” the minutes say.
Let’s just sit with that for a second. The Nacc had been operating for five days when Holmes’ referrals were received in July last year. It took three months to get to the point of making a decision and would take months more to draft a press release and announce it. This was the first high-profile matter the newly constituted Nacc had to decide on and its commissioner was arguing there was no value in the anti-corruption commission investigating possible corruption – which is the entire reason it exists.
The minutes record that he then said if the Nacc decided to take no further action, it would need to make a public statement, and it might be difficult to explain that they were proceeding to investigate Person 6 but not the others.
The minutes indicate Brereton then stayed listening to the ensuing discussion before leaving while the others made their decision.
Initially, it was to take no further action against the five public servants, flagging consultations with the APSC about its intended course.
But later that day, the deputised decision-maker emailed a colleague saying she believed the decision should be the same for all six. Robertson noted a similarity between the reasons ultimately given for the decision not to investigate and the arguments Brereton had made.
The APSC subsequently conducted its own separate investigation into two former departmental secretaries, Kathryn Campbell and Renée Leon, and made findings against them. In August this year, just a month before those findings were announced, the Albanese government passed retrospective legislation to ensure the APSC had the power to do what it was doing – investigate people who were no longer public servants.
In relation to the Nacc, Robertson’s job wasn’t to adjudicate on the robodebt decision itself, but on the process that led to it. He found the law required action be taken as a result of the commissioner’s disclosures and the absence of it amounted to “officer misconduct”. Furness determined it wasn’t just a procedural mistake but an error of judgment that affected procedural fairness.
“To state otherwise is to seek to minimise the seriousness of the finding and, again, to minimise form over substance,” Furness writes in her conclusion, endorsing the finding against the leader of the national integrity body.
On Furness’s recommendation, the referrals decision will now be revisited, the decision-making power delegated to “an appropriate person”.
The core principle here – that simply declaring is not enough – is applicable to the handling of conflicts of interest elsewhere.
For example, the parliamentary registers of members and senators’ interests, where politicians declare major assets and gifts received, real or in kind, are designed to aid transparency and prevent corrupt behaviour. But the entries are mostly basic and frequently outdated and omit any context that might more effectively allay concerns about propriety – or generate them. Besides the media, nobody really polices the disclosures, and there is no penalty for transgression besides shaming.
Perhaps it’s also time for an independent examination of that process to see if it’s working as intended.
Because the only thing worse than having no process to guard against corruption is having one that does it in name only.
Karen Middleton is Guardian Australia’s political editor
