Commissioner Paul Brereton said one thing to his top NACC colleagues and another to the Attorney-General.
EXCLUSIVE
The head of the National Anti-Corruption Commission Paul Brereton made misleading statements to Attorney-General Mark Dreyfus over his management of conflicts of interest regarding the Robodebt referrals.
A three-page official letter from Brereton to Dreyfus, released by the NACC to Undue Influence, reveals that Brereton told Dreyfus he would “recuse” himself from decision-making in the matter.
In the letter Brereton tells Dreyfus — twice — that he told his senior NACC colleagues in a meeting on 3 July last year that should a matter affecting someone with whom he has had, or has, a close association come before the Commission, he would “recuse myself from decision making” and “allocate the matter to a Deputy Commissioner”.
In all, Brereton uses the word “recuse” four times in the letter.
Yet official minutes of that 3 July meeting — the first business day of the NACC — show Brereton told his colleagues only that he would “delegate decision-making”.
Brereton said one thing to his top NACC colleagues — and another to Dreyfus
The word “recuse” does not appear in any of the documents the NACC released under Freedom of Information regarding Brereton and his conflict of interest, other than the 11 August letter to Dreyfus.
Meanwhile, the phrase “delegate decision-making” does not appear in Brereton’s 11 August letter to Dreyfus, in which he declared “material personal interests” as head of the NACC, as required by law.
Brereton’s 11 August 2023 letter to Dreyfus – ‘recuse’ used four times. Source: NACC. Image rendered by The Klaxon.
The documents show Brereton said one thing to his top NACC colleagues and another to Dreyfus.
Brereton to Dreyfus on 11 August 2023
“As I declared at a meeting of the Statutory Officers of the Commission on 3 July 2023 … I would recuse myself from decision-making in respect of that matter, and allocate the matter to a Deputy Commissioner…”
“As I also declared at the meeting [on July 3] … I would recuse myself from decision making concerning [redacted name] and allocate the matter to a Deputy Commissioner.”
Brereton at the 3 July 2023 meeting
PB raised a potential conflict of interest … As a result, he advised that he would delegate decision-making in such matters involving persons well-known to him to a Deputy Commissioner.
PB advised that … he knows [redacted name] well. If [redacted name] is the subject of a referral, then he would not be involved in decision-making concerning [redacted name]”
(Bold emphasis added.)
The above extracts come from a NACC Freedom of Information release of documents to a prominent researcher and writer, who works as Jommy Tee, who requested access to: “All documentation held by the NACC associated with the Commissioner and conflict of interest issues in relation to the Robodebt Royal Commission referral.”
A less redacted version of the 11 August letter from Brereton to Dreyfus than that released under FOI was later released separately to Undue Influence by the NACC, and is shown above.
Minutes from the NACC Statutory Officers Meeting on 3 July 2023 are pictured below. There is no mention of “recuse”.
Minutes from 3 July 2023 NACC Statutory Officers Meeting. No mention of ‘recuse’. Document source: NACC FOI. Image rendered by The Klaxon.
The word recuse has a specific legal meaning, indicating a complete withdrawal from a matter by a judge. Brereton did not recuse himself in this legal sense.
Both Dreyfus KC and Brereton SC are legal veterans.
Brereton has been “a solicitor, barrister, senior counsel, judge and judge of appeal of the Supreme Court of NSW”, says the NACC.
Dreyfus spent 20 years working as a barrister. He was appointed Queens Council in 1999 and “appeared in a number of landmark cases in the High Court”, says the Attorney-General’s Department.
Brereton was intimately involved in the NACC Robodebt “decision” meeting on 19 October 2023, as shown by the red arrows. The period the Commissioner was outside the room is shown in green. Document source: NACC FOI. Screenshot markup: The Klaxon.
Despite having declared a conflict of interest regarding the Robodebt matter, Brereton did not properly recuse himself from the decision-making process as to whether the NACC would investigate the six officials referred to it by the Robodebt Royal Commission.
The FOI documents confirm that Brereton had a “close association” (his words) with one of the six people referred to the NACC, later revealed to be related to his service in the army reserve, and that the person was “well known” (his words) to Brereton. These details all point towards the person in question being Kathryn Campbell, as reported in our earlier articles.
The documents are now publicly available at the NACC’s FOI disclosure log, FOI 24/36.
Former judge of appeal of the Victorian Supreme Court, Stephen Charles KC, who has been provided with the FOI documents, said that when a judge in court proceedings “recuses himself because of a conflict”, that judge “does not — must not — take any further part in the proceedings”.
“Otherwise, any decision by the court is likely to be stained by his involvement and set aside for the judge’s bias,” Charles said.
In his 11 August letter to Dreyfus, under the heading “Relationship with [redacted]” Brereton writes:
In particular, as I also declared at the meeting of the Statutory Officers of the Commission on 3 July 2023 (prior to the publication of the report of the Robodebt Royal Commission report [sic]), [redacted] is one of those with whom I have had a close association [redacted] and if [redacted] were to be the subject of a referral to the Commission, I would recuse myself from decision making concerning [redacted] and allocate the matter to a Deputy Commissioner.
On 6 June this year, the NACC released its statement announcing it would not investigate the Robodebt referrals citing as one reason “the oppression involved in subjecting individuals to repeated investigations”. It said a specific corruption investigation into the matter “would not add value in the public interest”.
The NACC ended the statement as follows:
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 Commission will not be making further comment.
The word recuse is not used in the statement.
This is an edited version of an article first published at The Klaxon on 31.8.2024. Repetition of material published in earlier articles has been removed.
Missed our earlier articles in this series? Here they are:
29 Aug – ‘Recused’ NACC boss Brereton at Robodebt meeting
28 Aug – NACC’s year-long Robodebt decision: just two pages long
24 Aug – NACC boss breaks own integrity policy over Robodebt
21 Aug – When is a ‘recusal’ not a recusal?
1 July — Brereton’s NACC cloaked in military-grade secrecy
Republished from Undue Influence. substack.com, September 03, 2024
Michelle Fahy is an independent researcher/writer investigating the secretive links between the weapons industry and Australian government. Her work has appeared at Declassified Australia, Arena, Progressive International, and elsewhere. View her archive and support her mostly unpaid work at https://undueinfluence.substack.com/
Elizabeth Minter
Liz began her career in journalism in 1990 and worked at The Age newspaper for two 10-year stints. She also worked at The Guardian newspaper in London for more than seven years. A former professional tennis player who represented Australia in the 1984 Los Angeles Olympics, Liz has a Bachelor of Arts and a Bachelor of Letters (Hons).
Contributions to Pearls and Irritations
Your contribution will fund quality independent comment and analysis in Pearls and Irritations
Contribute
