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The National Anti-Corruption Commission has ignored referrals from a royal commission to investigate six public servants over the disastrous robodebt scheme. By Jason Koutsoukis.
How the NACC ‘betrayed its core obligation’
The National Anti-Corruption Commission has betrayed its core obligation and failed to carry out its primary statutory duty by refusing to investigate six public officials referred by the robodebt royal commission, according to former New South Wales Supreme Court judge Anthony Whealy.
Amid growing disquiet on the cross bench over the performance of the federal anti-corruption body, Whealy criticised the decision not to allow public hearings except in exceptional circumstances and expressed alarm at the level of secrecy surrounding the commission.
“I was severely disappointed and disturbed to see that the power to hold public hearings had been very seriously limited by the addition of the requirement that there be exceptional circumstances,” says Whealy, who is now chair of The Centre for Public Integrity. “That was something that had never been raised in consultations we had with the attorney-general, where we had a good deal of agreement about what the body should look like and what powers it should have.
“In the main, the new body has been strangely silent since its formation. There have been a few announcements, but not very much, and no positive indication as to what the body is doing. In other words, it seems to be surrounded by a wall of relative secrecy.”
Whealy said the decision not to investigate the robodebt royal commission referrals left him feeling bitterly disappointed.
The NACC announced on June 6 it would not investigate the referrals because the conduct of the six public officials had already been explored by the Royal Commission into the Robodebt Scheme and that further investigation was unlikely to produce significant new evidence.
A former assistant commissioner to the NSW Independent Commission Against Corruption, Whealy added that unlike royal commissioner Catherine Holmes, the NACC had the unique and specific jurisdiction to make findings on whether people referred to it had engaged in corrupt conduct or should be otherwise dealt with within the meaning of the legislation.
“Commissioner Holmes did not have that jurisdiction or that capacity. It was beyond her jurisdiction to make any finding of corrupt conduct. Hence, it was that she made a very specific referral to enable the NACC to carry out its statutory functions,” Whealy says.
“In fact, she delayed her report for a week to make sure that the NACC was open for business … It simply is no answer to say, as they did say, ‘These people have already been investigated.’ Of course they’d been investigated, but 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, the NACC betrayed its core obligation and failed to carry out its primary statutory duty. And that is a grave concern. None of the reasons given were compelling. Indeed, they could be described as fatuous. So there must be a reason that they didn’t take it any further.”
In its June 6 statement announcing that it would not be investigating the six officials referred to it by the robodebt royal commission, it was also revealed that Commissioner Paul Brereton had recused himself from the decision.
“In order to avoid any possible perception of a conflict of interest, the Commissioner delegated the decision in this matter to a Deputy Commissioner,” the statement said.
Whealy served alongside Brereton in the NSW Supreme Court and says he has always had a high regard for him. That hasn’t lessened his criticisms of the federal anti-corruption body.
“All I can say is that the NACC was born under unfortunate circumstances,” Whealy says. “With its limitations on public hearings, it seems to have carried out its function so far with a substantial veil of secrecy, and when it came to the first real test, the ability to look seriously at very poor behaviour by senior public servants, it squibbed the task on a fatuous basis, which seemed to me to be at odds with its core function.”
Attorney-General Mark Dreyfus told The Saturday Paper: “I have confidence in the National Anti-Corruption Commission and its leadership. The Commission is independent. It cannot be directed by Government. This means anyone can make a referral to the Commission and it is then entirely a matter for the NACC what it chooses to investigate.”
The Inspector of the National Anti-Corruption Commission oversees the operations and conduct of the NACC and has announced she will investigate the commission’s decision not to proceed with the robodebt investigation.
In a keynote address to the Australian Public Sector Anti-Corruption Conference in Darwin on July 31, Commissioner Brereton said that in its first year of operation the NACC had received 3189 referrals of suspected corrupt conduct, about 90 per cent of which were excluded because they did not concern a Commonwealth public official or did not raise a corruption issue.
Of 29 preliminary investigations, seven had been completed, all resulting in a conclusion that no corruption issue arose, Brereton said. Of the 26 corruption investigations it had opened, nine corruption issues had been referred to other agencies for investigation.
“In 252 cases which passed triage, we decided to take no further action,” Brereton said. “One of our investigations has already resulted in an individual being charged with soliciting a secret commission. We also progressed seven active investigations that were commenced by the former Australian Commission for Law Enforcement Integrity. Of them, three have resulted in convictions and one in a committal for trial.”
Recent “controversies” such as robodebt, Brereton said, illuminated the challenges that could confront public servants in an environment where they were expected to be responsive to government.
“Corruption involves subverting the public decision-making process to serve a private or collateral purpose,” he said. “So equipping decision-makers to exercise their functions ethically, in an environment where there can be many pressures, is vital. Rather than reinvestigating what has already been exposed, we are addressing this both through our prevention and education work, and through investigating similar types of behaviour elsewhere.”
According to Anne Twomey, professor emerita at the University of Sydney, it was difficult to know or judge how the NACC was performing largely because its functions take place behind closed doors.
“While I understand why some people take the view that it is fairer to all involved for it to operate this way, I think it does so at a cost to public confidence because people cannot see what it is doing and how rigorous it is in fulfilling its functions,” Twomey says. “It may well be that it is operating extremely well – but it’s just not possible to judge in the absence of publicly available information.”
Even though the publication of annual reports and other information regarding the outcomes of investigations will make clearer how the NACC is performing, Twomey says the reporting of outcomes remains incredibly restrictive.
“I don’t think it is fair to attack the NACC on the basis of its performance when it is starting from scratch,” Twomey says. “I do think it is fair to criticise the excessive secrecy provisions in the legislation around the holding of public hearings and the publication of reports of outcomes.”
Megan Motto, chief executive of the Governance Institute of Australia, agrees that it is vital the NACC be transparent and clearly express the reasoning behind its decision-making processes.
“We know from our Ethics Index that Australians believe accountability and transparency are essential to ensure ethical conduct while corruption is the No. 1 concern in relation to unethical behaviour,” Motto says. “The ability to ‘blow the whistle’ to a body such as the NACC is critical on an interim basis until there is an independent whistleblower protection authority in place.”
William Stoltz, a lecturer at the Australian National University’s National Security College, believes there is an argument to be made that more secrecy might help the commission do its work.
The NACC’s decision not to examine robodebt, he believes, is a prime example of why referrals should be kept secret so they could be considered free of pressure.
“We should aim to avoid people misrepresenting or weaponising the referrals process for political or other purposes,” Stoltz says. “For example, a decision not to progress a referral shouldn’t be regarded as indicating innocence, and nor should the existence of a referral against a public official be regarded as a mark of guilt.”
Samuel Griffith Society executive director Xavier Boffa said any talk of reform to the NACC was premature and more likely to be ideological than evidence-based.
“While some of our rule of law concerns with the initial NACC proposal were addressed through the legislative process, Australians must remain vigilant that the NACC does not devolve into a kangaroo court that compromises the rule of law by engaging in theatrical public show trials,” Boffa says.
“Rather than expecting to be hearing frequently about the NACC’s work in the press, we should expect the commission to be working diligently and responsibly to perform its educative, advisory and oversight functions in a manner consistent with established rule of law principles.”
This article was first published in the print edition of The Saturday Paper on September 7, 2024 as "Robodebt refusal ‘a betrayal’".
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