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NACC commissioner engaged in officer misconduct, inspector finds
Judge Paul Brereton, the head of the National Anti-Corruption Commission, engaged in officer misconduct amid a decision not to investigate six referrals from the robodebt royal commission.
Naomi Neilson
Gail Furness SC, inspector of the National Anti-Corruption Commission (NACC), said an “independent eminent person” will reconsider Brereton’s decision after retired judge Alan Robertson found he made a mistake of law or fact during the investigation.
Instead of stepping aside, Brereton referred the decision making to a deputy commissioner, who would have known about the conflict of interest and was likely to have been influenced by the referred person’s exercise of powers during the robodebt controversy.
“From the standpoint of the third-party fair-minded observer, that observer might reasonably apprehend that the commissioner’s involvement might have impinged on the impartiality of the decision making of the deputy commissioner,” Robertson said.
“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. This was not done.”
Furness said the “main issue” to emerge during her investigation was the apprehended bias of Brereton, and she ultimately found the mistake amounted to “an error of judgement”. The report did not suggest actual bias or intentional wrongdoing by Brereton, nor did it criticise the deputy commissioner.
“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,” Furness said.
In response, Brereton said mistakes of law are a “professional inevitability” for judges, tribunal members and administrative decision-makers and has often found “judges of unquestioned competence, skill and integrity have made a mistake of law or fact”.
“Mistakes are always regrettable, but the most important thing is that they be put right. This mistake will be rectified by having the decision reconsidered by an independent eminent person,” Brereton said.
Attorney-General Mark Dreyfus thanked Furness for the report and said the government would continue to support the NACC “as it undertakes its important work to deter, detect and prevent corrupt conduct across the Commonwealth public sector”.
In a media statement released shortly after the NACC announcement, Greens Senator David Shoebridge said the findings were “another kick in the guts” to those impacted by the robodebt saga.
“Given these findings by the inspector, it is hard to see how the NACC can survive and retain its credibility without immediate and unambiguous accountability,” Shoebridge said.
“This is not about just revisiting the robodebt decision, it is now about commissioner Brereton’s future.”
Naomi Neilson
Naomi Neilson is a senior journalist with a focus on court reporting for Lawyers Weekly.
You can email Naomi at:
