A stunning email dug up in a freedom of information request revealed that commissioner Paul Brereton was involved in drafting a public announcement about the robodebt referrals, despite earlier findings that he made a mistake of fact or law during the investigation.
In a media release published online in mid-February, the National Anti-Corruption Commission (NACC) said it would investigate six referrals received from the Royal Commission into the Robodebt Scheme to determine whether they engaged in corrupt conduct.
The remainder of the release offered little to no information about the referrals, opting instead to press home the fact that NACC does not publish reasons for commencing an investigation to preserve confidential information, investigative pathways and reputations.
However, a freedom of information request won by the Greens revealed a very different version of this release, which included the disclosure that independent reconsideration delegate, Geoffrey Nettle AC KC, had decided the six referrals “[raise] a corruption issue”.
Having found the robodebt scheme was a “crude and cruel mechanism, neither fair nor legal”, the July 2023 final report – penned by commissioner Catherine Holmes AC SC – made 57 recommendations, including for the strengthening of public service accountability and improving the oversight of decision making.
An additional, sealed chapter was sent to various Commonwealth agencies, including the NACC, with a recommendation for the referral of individuals for civil action or criminal prosecution.
Greens Senator David Shoebridge alleged the original media release was deliberately hidden by NACC in what he dubbed “secretive, anti-transparency behaviour that undermines public confidence”.
“What makes this even more outrageous is these revelations only came to light through a hard-fought freedom of information battle that the Greens took up with the NACC,” Shoebridge added.
“An anti-corruption body fighting to keep key information secret really isn’t worthy of the name. The institution continues to privilege the powerful persons accused of misconduct at the expense of many Australians whose lives were harmed by robodebt.”
The amended media release included “suggestions” from NACC commissioner Paul Brereton AM RFD SC, who had been found to have unintentionally engaged in “official misconduct” for a failure to recuse himself from the original referral investigation.
A decision published late last year by retired judge Alan Robertson found Brereton should have removed himself because of a “close association” he had with one of the referred people. The connection was from a prior professional relationship and was never personal.
Instead of stepping aside, Brereton referred the decision to a deputy commissioner, who would have known of the conflict of interest.
“From the standpoint of the third-party fair-minded observer, that observer might reasonably apprehend that the commissioner’s involvement might have impinged on the impartiality of the decision making of the deputy commissioner,” Robertson said.
Shoebridge alleged Brereton’s involvement in the February media release – months after the findings went public – was “unacceptable and further destroys public trust in the NACC”.
“This is on top of commissioner Brereton’s serious conflict in continuing to retain a position of Major General in the Defence Force while heading a commission that is reviewing some 120 defence referrals,” Shoebridge added.
“Australians deserve better. They deserve an anti-corruption commission that operates in sunlight, not shadow, and can recognise a conflict of interest when it is staring it in the face.”
Naomi Neilson is a senior journalist with a focus on court reporting for Lawyers Weekly.
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