The national anti-corruption watchdog head has been found to have engaged in misconduct when the body decided not to investigate six people associated with the illegal robodebt scheme.
The inspector of the National Anti-Corruption Commission reviewed its decision not to pursue six people mentioned in the robodebt royal commission report, finding commissioner Paul Brereton didn’t recuse himself after a conflict of interest.
A review of the decision not to investigate the robodebt referral should be done by an appropriate person, the watchdog’s inspector Gail Furness recommended.
Furness engaged, former Federal Court judge, Alan Robertson to help with reporting on the legal facts of the case, and determining whether there was a real or perceived conflict of interest in the decision.
He found that while deputy commissioner Nicole Rose made the decision, Brereton was still involved in discussions on the matter.
This created the perception of bias in the decision.
Robertson found this amounted to “officer misconduct” by Brereton. There were no findings against Rose.
He said the commissioner’s knowledge and involvement of the matter was “comprehensive”.
“The strategy to manage the risk should have been not only to designate a delegate but to remove the commissioner from related decision-making processes and limit his exposure to the relevant factual information,” he said.
“To say the commissioner had an advisory role in this matter is not a sufficient description of his involvement.
“If it was sufficient, it would give added point to, rather than allay the apprehension of [a] third party fair mined observer.
“To conclude otherwise would be to substitute form for substance.”
The NACC has responded by saying it will reconsider the robodebt investigation. A press release said the NACC will appoint an “independent person” to lead the decision.
“The commission decided, without waiting for the conclusion of the inspector’s investigation, that that possibility required in the public interest that its decision be independently reconsidered, as the inspector had foreshadowed recommending,” it said.
“The commission will provide further information when the appointment of the independent eminent person has been finalised.”
Furness handed homework to the NACC in June, asking them to turn over documents used to make the decision. This included the sealed section of the robodebt final report.
This was prompted by the receipt of over 1,200 complaints about the decision.
She broadly categorised these concerns as:
- Commissioner Paul Brereton’s conflict of interest
- Ignoring or disregarding the robodebt royal commission’s final report
- Failure to hold those involved accountable
- Lack of justice for robodebt victims
- Inadequate rationale not to investigate
- Lack of timeliness
Furness emphasised her role is to investigate the conduct of NACC officials, not review the merits of their decisions.
This means most of the report deals with real and perceived conflicts of interest. It shows two deputy commissioners also declared possible conflicts of interest.
Acting deputy commissioner Jaala Hinchcliffe declared a conflict arising from her time as deputy commonwealth ombud. She recused herself from the investigation.
Deputy commissioner Ben Gauntlett declared he had met one of the people under investigation several years ago. He was not recused from the investigation.
Brereton said he accepted the inspector’s findings.
“Mistakes of law or fact are a professional inevitability for judges, tribunal members and administrative decision-makers,” he said.
“Throughout my judicial career, I was, like every other judge, from time to time reversed on appeal for a mistake of law or fact. As an appellate judge, I often found that judges of unquestioned competence, skill and integrity had made a mistake of law or fact.
“Our system requires that we accept such findings, even when we don’t entirely agree with them. This is no different.”
