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 Crikey’s political editor Bernard Keane to make the negative case and The Saturday Paper’s senior reporter Rick Morton to argue in the affirmative.
The National Anti-Corruption Commission (NACC) is already dead. The wound, self-inflicted. The funeral, extended. Worse still — as its commissioner Paul Brereton took to the very first parliamentary hearing into the watchdog to say that, actually, he has lots of friends who told him he is doing a good job — the agency now courts ridicule.
Be nice and spare us criticism, Brereton told the only NACC scrutiny body with open hearings, or else the public really will lose trust in our work.
He really said that.
Much has now been made of the NACC’s handling of the six referrals made by robodebt royal commissioner Catherine Holmes — a former chief justice of the Queensland Supreme Court — which after 11 months of dithering went precisely nowhere. I’ve chronicled for The Saturday Paper the absurd contortions involved in the non-investigation decision itself and the subsequent excuses made by commissioner Brereton as to why he remained so “comprehensively” involved throughout despite a declared conflict of interest with Referred Person 1.
These are voluminous and now serve as the backdrop against which serious structural questions of Brereton’s NACC emerge.
Brereton told the parliamentary hearing on November 22 that internal legal advice he instructed be provided for the “robodebt six” showed there could be a corruption issue, but that the agency figured there would be no value in any investigation. He was corrected not an hour later by the inspector of the NACC Gail Furness SC who said, in fact, the legal advice was explicit: there would be corruption issues identified on the same facts.
These are no small things. No doubt Brereton misspoke, without having the legal advice before him, but this goes to a greater problem: the commissioner of the anti-corruption commission does not seem to know — or wilfully attempts to redefine — what corruption actually is.
A former New South Wales Supreme Court judge, Brereton notched a trifecta for legislative redefinitions in public fora in the week leading up to the parliamentary joint committee into the NACC. At a conference in Adelaide, in the foreword to the agency’s annual report and before MPs in questioning, he insisted that corruption was “typically” or mostly a perversion of public office engaged in for a “private benefit”.
He says it over and over again, almost as administrative incantation.
The NACC Act does not require corruption of the cash-in-a-brown-paper-bag kind. It is much broader. None of the four main definitions of corruption include this caveat and the law includes a specific clause to refute it: “Conduct involving a public official may be corrupt conduct even if the conduct is not for the person’s personal benefit.”
A breach of public trust, for example, can occur “even if [public officer holders] don’t gain any advantage for themselves or someone else”.
That is why the NACC legal advice was so certain.
At the hearings, deputy commissioner Nicole Rose repeated another erroneous claim about why the agency failed to act on robodebt.
“Of course, we could find people corrupt, which has meaning in itself, but there would be no other individual remedy,” she said.
As Centre for Public Integrity fellow and University of Melbourne Law School Associate Professor Will Partlett told me this week, it’s a “problematic” line.
“It shows that the NACC leadership either do not understand their statutory responsibility or refuse to play it,” he says.
There is no other function of the NACC. It exists solely to expose serious or systemic corruption by labelling it so.
Robodebt was both.
By his own admission, Brereton said there was value in the NACC making findings of fact and corrupt conduct. He agreed the legal advice said it could be found (sic: would). Brereton’s errors of judgment, as the inspector called them, have now infected the entire agency.
Internal documents never show deputy commissioner Rose raising concerns about the conflict of interest process. She follows her boss’ firm view on narrowing the remit of the law. Another deputy, Ben Gauntlett, who declared a conflict with Person 1 but was allowed to handle the question of what to do with Person 6, the referred former Coalition minister, is similarly “tainted”, to borrow from Geoffrey Watson SC.
Above all is Brereton who doubles down and demands confidence from scrutiny bodies. He accepts the findings of a former federal court judge that he engaged in officer misconduct on a technicality but does not agree with them.
He invites confusion and discord.
Poorly written and hopelessly compromised legislation is rendered worse — more consequential — under his leadership.
DING DING DING! DING! DING! DING! THE CRIKEY EDITOR INFORMS MORTON HE HAS NOW OFFICIALLY PASSED THE MAXIMUM WORD COUNT
In its current form, the NACC is a friend to the status quo and no vehicle for transparency or accountability.
It should be razed and rebuilt.
Rick Morton is The Saturday Paper senior reporter and author of the book Mean Streak about the robodebt scandal.
Read the opposing argument by Bernard Keane.
