Pearls and Irritations

It hasn’t even finished its first year of operations, but those who were hoping for big things from the National Anti-Corruption Commission and its chair, Justice Paul Brereton would be wise to temper mightily their hopes and expectations of what it might achieve.

An indicator, if only one of them, came on June 6 when the commission decided not to take up a reference given it by the Robodebt royal commission, touching the conduct of six public officials (almost certainly including at least one coalition minister.)

It delegated the decision to a deputy commissioner, to avoid any perception of a conflict of interest. Announcing the decision, the commission said it was conscious of the impact of the Robodebt scheme on individuals and the public, the fact that senior officials were involved, and the need to ensure that any corruption issue was fully investigated.

However, it said with a certain world weariness, the conduct of all six had been exhaustively covered by the Robodebt inquiry. It was unlikely that significant new evidence would emerge.

Ignoring the fact that the referrals were made by Catherine Holmes, the royal commissioner, with a view to following up loose ends, including questions of criminality, malfeasance and breach of public codes of conduct, NACC thought there was no point in having a fresh investigation. It would be just duplicating work already done, with the risk of coming to different conclusions.

Catherine Holmes was very scathing and tough about many of the (still unnamed) officials about whom she made referrals to bodies such as the public service Commission, NACC and the Law Society, but the still undisclosed final chapter of her report was not put there for fun, but to put in train consequences for failures falling well short of what the public expected. The seven most serious ones, asking whether serious corruption was involved for referral to the Director of Public Prosecutions, has just been abandoned.

It is all a one with the general disdain shown the public by the Public Service Commission, which has dealt with its referrals at a snail’s pace and no visible enthusiasm. A year from Holmes’ report, four unnamed people have been found to have breached public service codes of conduct and been made subject to unspecified sanctions. That was in February. Earlier this month, senate estimates were told that another three had faced the PSC star chamber.

Public in the dark about who is being punished for Robodebt

The PSC and its Commissioner Gordon de Brouwer apparently intend that the public will never be the wiser about those who were found liable and those who appear to have escaped scott-free, of what exactly the charges were and what was rejected, and what penalties they were made to suffer. This is in line with the PSC approach to charges made against former Home Affairs secretary, Mike Pezzullo, where the public has no explanation for why he was dismissed. One consequence of this, now that Pezzullo is seeking to resume a role in public affairs, is that he can make uncontradicted claims minimising any breach of duty involved.

The initial fact-finding in the Pezzullo case was made by a former PSC commissioner, Lynelle Briggs, and in the case of the PSC Robodebt referrals, by another former PSC commissioner, Steve Sedgwick. Both are public servants of impeccable integrity. But it is no disrespect to them to adopt the words of any number of judges doubting whether “justice” can be administered behind closed doors. It is not, moreover, only the accused and the person sitting in judgment that must be under scrutiny, but also those making the charges, who purport to represent the public interest. I do not believe that the public interest has been represented and have no confidence in the “justice” delivered in secret.

Neither Briggs nor Sedgwick can be criticised for any outcomes. Their reports underwent a further (undetailed) moderation by people in the commission then referral to appropriate public service heads. These are not required, it appears, to give any public findings of fact or reasons for their decisions, or, apparently, the identities of the public servants who let the nation down and cost it $4 billion.

It is not justice for the victims, adding to the catalogue of unaccountability, a lack of transparency, crude and cruel administration, and illegality that Robodebt was all about. The scandal and the lack of proper accountability, now involves the present public administration, and invites questions about whether the PSC and public service discipline model is fit for purpose.

The NACC should have taken up the reference. It too suffers from the perception of operating in secret, by rules the public is not allowed to know, and with consequences and reasoning it will not usually be able to inspect.

If one reads the uninformative statements from the commission since it began operations on July 1 last year, one might think that it had already put a number of matters before the courts and was knee deep in “ongoing” inquiries. But the matters coming before the courts have been largely rats-and-mice cases that were left over from the (also secretive, unaccountable and ineffective) law enforcement integrity apparatus.

The NACC has found no occasion for “teaching moments” at which it can use matters coming before it to tell public officials and the public about integrity in public administration. It has issued no reports, before or after successful prosecutions, apart from some media statements. It has conducted no public hearings.

It has issued a few pamphlets and educational materials, but these are of a standard inferior to those issued over the years by far more vigorous state anti-corruption bodies, particularly the NSW ICAC.

The commission is constrained by a cynical deal made by prime minister Anthony Albanese and Attorney-General Mark Dreyfus with opposition leader Peter Dutton, which had the affect of seriously winding back its power and, it is now clear, its effectiveness. Labor always had the numbers to get a tough NACC Bill through both houses of parliament, not least because Greens and Independents, including the teals, had played a stronger role than Labor in bringing the legislation forward.

Albanese is said to have calculated that if he could make the coalition a party to the legislation, if with a bit of “compromise”) the legislation would be more likely to endure a change of government. One concession was to require closed hearings (in limited circumstances the NACC can hold public hearings.) Reports from hearings are not disclosed to the public until after the completion of any consequential judicial proceedings when corruption findings have been made.

It was always the assumption that the fact of any NACC inquiries would not become public until after investigators had established, by private inquiries, whether there was fire behind the smoke of gossip and innuendo. If this prima facie point has been reached, the NSW model then sees open hearings held, and officials, and people accused of corruption, questioned in public. This has had the effect of putting a spotlight on poor administration, and causing administrative and cultural change even as hearings were continuing. Successful prosecutions, often years later, were almost incidental to the publicity effect.

The problem is that Labor has persuaded itself that open hearings run a serious risk of unfairly damaging the reputations of worthy Labor politicians, even before they face the courts. Think, for example, Eddie Obeid, Ian MacDonald, Joe Tripodi and Brian Burke, all of whom have, over the years had close friends and allies in federal Labor. In some cases, investigations into worthy schemes, such as the privatisation of Sydney Water at the behest of Liberal Party donors, have foundered before getting to the point of making adverse criticisms of anyone, allowing them to claim exoneration. Arthur Sinodinos is of this number – never criticised by ICAC itself, though the subject of a lot of criticism and made to look venal and unattractive as the facts came out.

Still others have claimed that ICAC inquiries have destroyed the reputations and careers of prominent people whose offences, if offences they were, were minor compared with the damage caused to them. Gladys Berejiklian and Nick Greiner are commonly held to be examples of this, though both were allegedly involved in abuses of power, one in appointing a political partisan to a public service post, the other in spending public funds for purely political purposes.

Nothing much has changed, and even less is intended to be changed, after Robodebt inquiry

One good public interest reason for revisiting many of the matters left undone by the Robodebt aftermath is that there has just emerged a new case which casts doubt on the idea that public service lawyers have reformed themselves in the wake of stringent criticisms by commissioner Holmes.

Public service lawyers claim that they are fully professional lawyers, answerable for their professional conduct to legal regulators and bound, on legal matters by service-wide professional principles, including the duty to be a model litigant. Robodebt showed lawyers allowing themselves to be intimidated by public service masters, to have connived in methods of avoiding serious gaps in the law to come into the open, and to have passively participated in schemes for avoiding facing important questions, never finalising adverse draft legal opinions, and declining to run appeals if there was a chance that tribunals would confront Robodebt lack of legal authority.

It was suggested that the legal regulators should examine the conduct of some of the in-house departmental lawyers for adherence to professional standards. It was a task that the regulators shirked — yet another way by which it can be said that the Robodebt report is full of unfinished business, in an environment where no public institution has the will or the desire to vindicate the public interest.

On Wednesday June 5, a Victorian Supreme Court judge dealt with a matter in which government lawyers for the Attorney-General’s department, for Home Affairs and the Australian Federal Police had collectively failed to fulfill a duty imposed on them both by the law and model litigant rules. It was a national security matter in which police and Home Affairs were trying to keep a convicted man behind bars, long after he had served his sentence, and it seems, had renounced terrorism.

Home Affairs were supporting their case with some computerised predictive systems. But they did not tender, as the law required, information which had the practical effect of discrediting these tests, based on university research. Almost everyone involved in the case had at some stage discussed the damning material, and most seemed to recognise the need to produce it. Advocates for the Attorney-General’s department had several conferences with their “client” – Home Affairs – at which the duty was raised. Some in Home Affairs had tried to get the report rewritten so it did not need to be produced.

The excuses of AG’s lawyers were, to a point, accepted by the judge, but it is not so clear that they will deserve to escape censure once it emerges, as it will, that this failure to produce was not an unfortunate incident of a particular case, but one repeated in case after case, in each of which there were lawyer-client discussions. The judge was much more sceptical of excuses for the “oversight” coming from Home Affairs lawyers. The AFP was only indirectly involved, but it was aware material was being withheld. Its legal people were not apparently as enthusiastic about a “duty of fairness” to produce factual and opinion material unhelpful to its case as they showed themselves to be in the Bruce Lehrmann case.

Home Affairs has long been under criticism for its approach to litigation, and non-stop efforts to pretend that the legal regime it manages falls outside of the mainstream of the common law. It has also had the reputation of having had, under Pezzullo, the sort of management system in which disagreement with the party line has been strongly discouraged – just the sort of environment as in the Robodebt departments. Lawyers felt intimidated by public service superiors, had a marked tendency to see the public interest as being the corporate interests of the department. Many failed in their professional obligations as lawyers, whatever brownie points they were getting for protecting the interest of managers.

The Attorney-General, Mark Dreyfus, now agrees that the non-disclosure of the report was a serious breach of the disclosure obligation. But we cannot thank him, or his department, for our knowledge of this. The independent national security legislation monitor, whose job is to independently review the operation, effectiveness and implications of national security and counter-terrorism laws, came across the material by accident.

In June 2020, Dr Emily Corner and Dr Helen Taylor from the ANU produced a (commissioned) report for Home Affairs which tested the reliability of terrorism risk assessment instruments. It asked whether such tests accurately classified offenders, or over or underestimated the risk they posed. The Corner report showed the theoretical and empirical evidence base in the test’s documentation was of poor quality, and predominantly composed of “theoretical assertions, secondary citations of literature reviews, and media articles.” It tested for only 14 per cent of variable factors statistically associated with movements towards radicalisation and violent extremism. Its predictive capacity was poor.

But the department kept using the material and did not disclose that it had material tending to undermine its reliance on the tests. [In much the same way, the department ignored for years evidence showing that measuring bone width for proof of age was inherently very unreliable.]

The monitor began making a fuss, and lawyers for the man in question demanded the reports of which they had been unaware. Slowly, and with great reluctance the department disgorged other reports tending to the same conclusion. Some were produced only at the last moment. There is simply no doubt they should have been disclosed. No one now argues otherwise. There is little doubt that Home Affairs was scheming to avoid disclosing them.

The judge was very critical, calling it a serious interference with the administration of justice. He was aware of similar non-disclosures by the AFP minister in other matters. He has referred the non-disclosures to the current national security monitor so that he can decide what further investigations are necessary to get to the bottom of the matter.

If the monitor conducts the inquiry, he has the advantage that man of the lawyers involved have now signed affidavits explaining the particular facts which explained their overlooking their obligation in the particular case. These explanations (with apologies) do not explain why the same obligations were “overlooked” in many other cases.

Some people are excited at the prospect of the inquiry because some of the legal documentation came from the office of ministers, including Peter Dutton. No doubt there will be efforts to associate him with attempts to railroad the appellants. It might, but the case bears the hallmarks of departmental misfeasance, perhaps out of anxiety to please the minister.

Alas from the NACC’s point of view, an investigation by the monitor will almost certainly be under the blanket, and the public will not get a look in. That’s not the monitor’s fault, of course. Just another example of how the Attorney-General and his department has sewn things up so that the public has no idea of how they are trampling on human rights.

It would be far far better if the NACC took the matter over, linking it with the Robodebt inquiry, and the question of whether in-house lawyers are out-house lawyers, at least as far as respect for the public interest is involved. Heaven knows, it is time for Commissioner Brereton to come into the daylight and justify some of the money, and the hopes, vested in him. Let’s hope it does not take the time, and for such limited results, as the war crimes inquiry.