Before the last election in 2022, the Labor opposition promised to establish an integrity commission that would have a broad jurisdiction and strong investigative powers including the capacity to hold public hearings when it was in the public interest to do so.

This had been widely supported in the community, including by an open letter sent to the then Prime Minister, Scott Morrison, in December 2018, signed by 34 judges (including myself). Three former chief justices of the High Court (Sir Anthony Mason, Sir Gerard Brennan and Murray Gleeson AC) had also expressed their support for commissions being entitled to hold public hearings.

When the new Labor Government’s Attorney-General, Mark Dreyfus QC, was about to put the Bill to establish the NACC before Parliament in June 2022, the Opposition requested an amendment to Sec. 73, which would have permitted the Commissioner to hold public hearings if it was in the public interest to do so; the Opposition wanted to substitute a provision from the flawed Victorian IBAC legislation which limited public hearings to “exceptional circumstances”. This provision, unique to Victoria, had been strongly criticised by IBAC’s first two commissioners (Stephen O’Bryan QC and Robert Redlich AM QC), both of whom had said publicly that the ability to hold public hearings is critical to the ability of an anti-corruption commission to expose and combat corruption.

Transparency International Australia defines “corruption” as the “abuse of entrusted power for personal, private, or political gain,” and the Coalition, which had been in government from 2013 to 2022, had so deplorable a record for corruption and misconduct that TIA in its Corruption Perceptions Index had dropped Australia’s ranking from seventh in the world in 2012 to 18th in 2022. So the last thing the Coalition, now in opposition, would have wanted is for the NACC to hold a series of public hearings in relation to its misbehaviour while in government.

The amendment to the NACC’s power to hold public hearings to exceptional circumstances was a disastrous reduction in its capacity and no one is surprised that more than 12 months after its establishment in mid 2023, little or nothing has been heard since of the NACC’s investigations.

One of the most significant areas of governmental misconduct in the last decade was the Robodebt scheme which ran from 2015 to 2019. This was investigated by Catherine Holmes AC SC, who was appointed by this government to investigate Robodebt in August 2022, but not the question of whether any persons had been guilty of corrupt conduct. Holmes completed her report in July 2023, but delayed delivery of it until the NACC had been established in order that she could refer to it questions contained in the final volume of her report, which was sealed.

These matters were then considered by the NACC, which decided on 16 April 2024 not to investigate the Robodebt referrals from Commissioner Holmes.

A series of documents obtained from the NACC under FOI show that Commissioner Brereton at the outset concluded he had a personal conflict of interest and, at a meeting on 3 July 2023, he raised it, saying he would delegate decision-making to a Deputy Commissioner. On 11 August 2023, Commissioner Brereton wrote to Dreyfus disclosing that he had a close association with a person and saying he would recuse himself from decision-making concerning that person. It can reasonably be assumed that the person concerned was Kathryn Campbell, a major-general (like Brereton) in the Army Reserve, and a long-term and close friend of Brereton.

The documents also show that Commissioner Brereton took the view that he remained entitled to take part in discussion of the Robodebt referrals and make comments on them, and that this continued until the decision was finally taken in April 2024 not to accept the referrals from Commissioner Holmes.

It is well-accepted law that when a judge decides that he or she has a conflict of interest and that it is necessary to make a recusal from a proceeding, the judge must then take no further part in that proceeding. Commissioner Brereton asserts, (and has done so by letter on 5 September 2024), that this is not directly applicable to a decision of the Commissioner whether or not to commence an investigation. 

In my opinion, there is no justification whatever for this assertion and it is simply wrong. Where a person, in a position such as Commissioner Brereton’s, has a conflict of interest, the purpose of recusal is to prevent others being exposed to that person’s favourable (or unfavourable) view, to assure the outside world that natural justice or fairness has been maintained in the decision whether or not to commence an investigation. In the present case, Commissioner Brereton’s continuing presence, and making of comments on the Robodebt referrals until the moment of the final decision, completely undermined his acknowledgement of the conflict of interest and his supposed recusal. In other words, his “recusal” was without consequence, and would not have prevented him approving the investigation of one of his enemies.

NACC’s primary task is to investigate and report publicly whether nominated persons have or have not been guilty of corrupt conduct. It was no answer to say that these people have already been investigated. What had not occurred was a determination by the only body with the jurisdiction to do so whether the conduct in question constituted “corrupt conduct.” By refusing to act, NACC betrayed its core obligation and failed to fulfil its primary duty.

In the light of the foregoing, it is strongly arguable that the government may not have picked the right person for the job as Commissioner of the NACC.

Commissioner Holmes’s task remains incomplete. If the NACC will not examine the referrals in the final sealed volume, the Attorney-General should now seek her approval to unveil the final volume and release the contents to the public so that we all may know the full extent of Commissioner Holmes’s conclusions in relation to her critically important investigation.

This will also reveal the nature and extent of NACC’s failure to act.

https://johnmenadue.com/the-naccs-refusal-to-consider-robodebt/

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