The eventual departure (in six weeks’ time) of Paul Brereton from the position of Commissioner of the National Anti-Corruption Commission (NACC) provides the Albanese Government with the opportunity to review and reform a body that has failed to live up to the expectations of most people who wanted the Federal Government to establish the Commission. It is unlikely to do so, not least because the Government did not share the aspirations for the NACC of most of those who urged its creation. David Solomon reports.
While the NACC has substantial investigative powers and staffing resources, it has operated essentially as a crime commission, rather than an anti-corruption commission.
Because it was limited in its ability to hold public inquiries – unlike its NSW counterpart, ICAC, the Independent Commission Against Corruption – its work has largely failed to generate public attention or interest.
A bias against holding public hearings – its legislation required all its hearings should be held in private unless the Commissioner was satisfied that ‘exceptional circumstances’ justified them being in public and doing so was in the public interest – meant most of its work went unpublicised. Mr Brereton said he always looked to see if those ‘exceptional circumstances’ existed and would justify a public hearing. But he found none.
The headlines it attracted were all about its failures, and particularly those of Brereton himself, its initial chairman, who while declaring a conflict of interest in relation to its first major inquiry, failed to isolate himself completely from the commission’s deliberations about that matter.
As it happened, that issue was one of very great public interest – Robodebt, the illegal automated system employed by Coalition governments between 2016 and 2020 to recover from more than half a million social welfare recipients’ debts that were wrongly assessed and sometimes non-existent. Former Quennsland Chief Justice Catherine Holmes, the Royal Commissioner appointed by the Labor Government into Robodebt, included a secret section in her final report to be provided to the NACC detailing why six people associated with the scheme should be investigated by the NACC.
Brereton declared a conflict of interest because he knew one of the six people named – he and she were both held the rank of general in the Australian Army. However the independent Inspector of the NACC found that Brereton had not removed himself from the decision-making process. A later inquiry by the Inspector found that the NACC should not have refused to investigate the conduct of the six persons referred to it by the Royal Commissioner. The NACC then reversed its decision. Eventually the NACC decided that only two of the six people referred to it had engaged in serious corrupt conduct.
Mr Brereton’s problems as Commissioner did not end with the Robodebt saga. Brereton had from 2026 to 2020 conducted an investigation for the Inspector-General of the Australian Defence Force into war crimes allegedly committed by Australian forces in Afghanistan. Last year it emerged that he was continuing to provide advice to the Inspector-General despite having said he would discontinue his association with that office on his appointment to the NACC. This news prompted a second investigation by the NACC Inspector into Brereton which is nearing completion.
Meanwhile the NACC has been proceeding with its work, which includes checking almost 8,000 referrals made to it, obtaining (so far) just 11 convictions – some for work inherited from the Australian Commission for Law Enforcement Integrity (which essentially was taken over by the NACC, along with much of its staff) for such matters as cronyism in recruitment, a secret commission, dishonesty in senior executive decision-making and the leaking of sensitive information about law enforcement investigation to criminal associates.
Followers of ICAC’s work might have expected more of the new, well-endowed anti-corruption agency.
However many in the Albanese government – and in the Parliament generally – were fearful of creating an investigative monster that, like ICAC, might devour some of its creators. They didn’t want to have the NACC tapping their telephones, searching their electronic communications and cross-examining them in public. They compromised the initial requirement that public investigative hearings could be held ‘in the public interest’ by introducing the ‘exceptional circumstances’ requirement.
The NACC legislation established a joint parliamentary committee which will have a hand in the appointment of a new Commissioner. It also has the power to report to parliament on ‘desirable changes to the functions, powers, procedures, structure and staffing’ of the NACC.
If ever there was a time for that kind of inquiry to be undertaken it should be now – not in five or 10 years’ time, when it will be more difficult to change the NACC.
Brereton’s departure provides the opportunity for the government to reconsider its mandate and for NACC’s new leadership to enhance its activities.
Like ICAC it should consider the corrupting influence of such activities as lobbying and pork barrelling and report on what reforms are necessary to properly regulate the former and eliminate the latter.
Not that ICAC’s two investigations of lobbying have produced meaningful reforms, but that is the fault of both Liberal and Labor governments in NSW that have been reluctant or unable to make the recommended changes, such as requiring all lobbyists (and not just a small proportion of them) to register and be properly regulated.
And once Brereton has gone, the NACC should reproduce the series of printed and audiovisual materials authored by ICAC several decades ago, about how conflicts of interest can be recognised and dealt with. They should be required reading for politicians and public servants, as well as officers of the NACC.
David Solomon is a former legal and political correspondent. He has degrees in Arts and Law and a Doctorate of Letters. He was Queensland Integrity Commissioner 2009-2014.