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Mistake or misconduct? NACC Inspector’s damning findings

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The NACC needs to start again – from scratch – and this time the Commissioner must not be involved, writes Rosemary Sorensen.

WITH EXQUISITE CARE, the Inspector of the National Anti-Corruption Commission (NACC), Gail Furness SC, has completed her investigation into the decision not to investigate referrals from the Royal Commission into the Robodebt Scheme.

And – to the extent of the Inspector’s role – concluded that Commissioner Paul Brereton ‘engaged in officer misconduct’.

This outcome is the result of more than 1200 complaints about the NACC’s decision not to investigate the six people referred but not publicly named by the Robodebt Royal Commissioner, Catherine Holmes, 11 months earlier.

The Inspector, cannot investigate whether the NACC’s decision was correct — her role is to ‘investigate corrupt conduct of the NACC and complaints of agency maladministration or officer misconduct’.

Does misconduct imply an incorrect decision? That’s a good question.

The Inspector’s conclusion is expressed in a sentence the many parts of which take small steps towards a judgement:

‘In light of the findings and opinions expressed in the Robertson Report, which I accept, I recommend that the Commissioner delegate the function under s41(5) of the NACC Act, that is, to reconsider whether or how to deal with a corruption issue, namely the referrals from the Royal Commission into the Robodebt Scheme, to an appropriate person.’

In other words, the NACC needs to start again – from scratch – and this time the Commissioner must not be involved.

So, we have this absurd situation – one more in a torturous long line of absurd situations arising from the ill-conceived and even iller-applied Robodebt scheme – where an investigation into corruption was corrupted.

The Robertson Report – referred to by the Inspector – was written by Alan Robertson SC, who was engaged by Furness to look at ‘the management of the Commissioner’s declared conflict of interest in relation to one of the referred persons’.

This process involved looking at the way the newly minted and much-anticipated National Anti-Corruption Commission dealt with this high-profile case.

Not only did Brereton not appropriately manage his own declared conflict of interest – his stated “close association” with one of the six, likely to be a former government minister – the NACC’s media release announcing the decision not to investigate was found by Robertson, and then Furness, to be ‘misleading’.

Furness suggests that her role as Inspector was to ask: 

‘In light of the Commissioner’s declared conflict of interest, was the management option chosen appropriate and consistent with law?’

What we get, then, is a laying bare of a “management option” that is astonishing, given that the NACC is supposed to “enhance integrity” by ‘detecting and preventing corrupt conduct involving public officials’.

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You’d think – you’d hope – that it is meticulous itself in the way it proceeds.

The process, as outlined in the Inspector’s report, was not meticulous.

Having declared a conflict of interest in August July 2023, then in writing to the Attorney-General, Mark Dreyfus, Brereton said he’d ‘recuse [himself] from decision-making’ concerning that ‘Referred Person’ he knew.

At a meeting in October, however, when the “senior assessment panel” met to consider the referrals — draft minutes show that Brereton chaired the hour-long meeting and left the room for eight minutes of that time.

As found by Robertson: 

‘the Commissioner’s involvement in the decision-making was comprehensive, before, during and after the 19 October meeting at which the substantive decision was made.’

From that point, when the NACC decided they’d take no action against the six people referred to them by Royal Commissioner Catherine Holmes — it took another six months for them to announce that decision.

And even when they did so, they gave what the Inspector calls a “misleading reason”, by suggesting that they didn’t think it was worth duplicating work ‘that has been or is being done by others, in this case with the investigatory powers of the Royal Commission and the remedial powers of the APSC (Australian Public Service Commission)’.

These “remedial powers” were non-existent, as the public servants no longer worked for the public service.

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And, as for the suggestion in the media release that the NACC did not want to duplicate work – in a delicious sentence of rebuke – the Inspector concludes: 

‘Even though the wording of the reasons had occupied the time of the Commissioner, the Deputy Commissioners and a number of senior staff since 19 October 2023, that is for over six months, the media release still contained this misleading reason.’

There’s a section of the Inspector’s report that lists the substance of those 1200 complaints.

It’s an indictment of the National Anti-Corruption Commission that these complaints highlighted not just conflict of interest, but also unjust, unreasonable and inadequate justifications for the lack of action.

The consequences of what the Commissioner is saying is an “inevitable” mistake of law?

Well, “regrettable”, says Brereton, in a bizarre NACC statement where he says that he ‘accepts his judgment in this respect has been found to be mistaken’.

The important thing is that mistakes are put right, he says, which is kind of curious given that no one has yet been held to account for Robodebt.

The Commissioner said:

‘This mistake, will be rectified by having the decision reconsidered by an independent eminent person’.

Will it be the job of the Commissioner to find and appoint this independent eminent person?

While the NACC bangs on in their statement about the “mistake”, it’s important to go back to the Inspector’s conclusion —  she calls it “misconduct”.

 

Rosemary Sorensen is an IA columnist, journalist and founder of the Bendigo Writers Festival. You can follow Rosemary on Twitter/X @sorensen_rose.

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Mistake or misconduct? NACC Inspector’s damning findings

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