A report by the oversight body for the National Anti-Corruption Commission, has found the NACC Commissioner Paul Brereton made a mistake of law or fact amounting to ‘officer misconduct’, in his handling of referrals from the Robodebt Royal Commission.
The NACC Inspector investigated the commission’s decision not to take up referrals of six people by the Royal Commission.
Robodebt was an automated debt recovery scheme initiated by the coalition government between 2015 and 2019, which the Royal Commission found was unlawful and something people should never have been subjected to.
The issue for the NACC Commissioner was his handling of a declared conflict of interest relating to one of the six people referred by the Royal Commission, someone Brereton said he “knows well”.
In her report, NACC Inspector Gail Furness SC says Brereton dealt with the conflict by delegating the decision of whether to investigate the referrals to a Deputy Commissioner.
Furness found Brereton should have gone further. “[T]he NACC Commissioner should have not only designated a delegate but removed himself from related decision-making processes and limited his exposure to the relevant factual information. This was not done,” she said.
The Inspector concluded that Brereton’s involvement in decision-making was “comprehensive”, before, during and after the decision not to investigate the referrals.
She made no finding against the Deputy Commissioner, but found that “a third-party, fair-minded observer might reasonably apprehend that the NACC Commissioner’s involvement might have impinged on the impartiality of the decision-making of the delegated Deputy Commissioner”.
“By participating in the decision-making in the way he did, the NACC Commissioner made a mistake of law or fact,” she said.
Based on section 184(3) of the National Anti-Corruption Commission Act 2022, this was found to be ‘officer misconduct’.
The Inspector recommended the NACC delegate the Robodebt referrals question to an “appropriate person”, something the NACC has accepted.
In a statement, the NACC said it was already in the process of engaging a person to independently reconsider the decision but also defended its actions.
“The Inspector’s Report contains no suggestion of actual bias and no finding of intentional wrongdoing or other impropriety.”
The NACC also said the referrals were received in its first week of operation and while its policies and procedures were still being established.
“There was a fine balance to be struck between the Commissioner’s responsibility for, and involvement in, managing the affairs of the Commission and issues that would have lasting implications for it on the one hand, and on the other, avoiding the perception that a prior professional relationship with one of the referred persons might influence the decision.”
The Commissioner said he accepts that his judgment was mistaken. “Mistakes of law or fact are a professional inevitability for judges, tribunal members and administrative decision-makers,” said Brereton.
“This mistake will be rectified by having the decision reconsidered by an independent eminent person. Meanwhile, the Commission is focussed on its 29 current corruption investigations and 31 preliminary investigations.”