Perceptions of bias: The National Anti-Corruption Commission and Robodebt

Government, Politics

Perceptions of bias: The National Anti-Corruption Commission and Robodebt

Nov 5, 2024

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From the outset, a question mark hovered over whether Australia’s federal National Anti-Corruption Commission would serve the purpose of shedding light on corruption in the public sector. The enacting legislation that brought it into existence, for instance, limit public hearings to “exceptional circumstances”, a reminder that transparency was going to be heavily conditioned.

Its first major decision, handed down on June 6, was not expected to be controversial. The Commission had, after all, been charged with enhancing the “integrity in the Commonwealth public sector by deterring, detecting and preventing corrupt conduct involving Commonwealth public officials”. Surely, referrals concerning six public officials identified in the Royal Commission into the Robodebt Scheme would have been appropriate subject matter for investigation? The automated debt assessment and recovery program, had, in the words of the Royal Commission report, used “patently unreliable methodology as income averaging, without other evidence, to determine entitlement to benefit”. From its inception as a pilot program in 2015 till its conclusion in May 2020, vulnerable Australians were subjected to what could be described as a form of administrative hounding and bureaucratic terrorism.

The answer from the NACC regarding the referrals caused shock, signalling what William Partlett of the Centre for Public Integrity described as “a departure from a long history of anti-corruption oversight in Australia.” While the Commission was aware of the impact of the scheme “on individuals and the public, the seniority of the officials involved, and the need to ensure that any corruption issue is fully investigated” it felt that “the conduct of the six public officials in connection with the Robodebt Scheme has already been fully explored by the Robodebt Royal Commission and extensively discussed in its final report.”

In refusing to act on the referrals, the NACC had, in the stinging assessment from former NSW Supreme Court Judge Anthony Whealy KC, now chair for the Centre for Public Integrity, “betrayed a core obligation and failed to fulfil its primary duty.”

What followed was fascinating if slightly ludicrous. The inspector of the NACC, Gail Furness, found herself being called more or less from the outset of her tenure to investigate the very entity that had been created to expose maladministration and corrupt conduct after receiving 900 complaints about the NACC’s own alleged corrupt conduct. (That number would eventually exceed 1,200.) In the mess of not pursuing the Robodebt officials, it also transpired that Commissioner Paul Brereton had delegated, rather than recused himself, from the process given a conflict of interest. By merely delegating the role of reaching the final decision to a Deputy Commissioner, however, Brereton had not entirely precluded his role in the process.

The Report of the Inspector, released on October 30, produced a change of heart in the NACC as a matter of “public interest”. Furness noted “expressions of profound disappointment in the NACC’s decision” and concluded after receiving the opinion of former Federal Court judge Alan Robertson SC that Brereton had “engaged in officer misconduct” as defined by section 184(3) of the National Anti-Corruption Commission Act 2022 (Cth), “being conduct that is not unlawful but arose from a mistake of law or fact.” In Robertson’s own words, Brereton’s steps “to manage his conflict of interest […] arose from a mistake of law, as natural justice required the Commissioner not to participate in the decision-making with respect to [Referred Person 1].”

Furness also found that the NACC had been “misleading” in a media statement that the Australian Public Service Commission (APSC) “had remedial powers and could impose a sanction in relation to the persons referred.” It was not possible to do so given that 5 of the individuals referred to were no longer in the employ of the public service and the sixth was never in the public service.

In the view of the Inspector, one recommendation was in order: “that the Commissioner delegate the function under s. 41(5) of the NACC Act, that is, to reconsider whether or how to deal with the corruption issue, namely the referrals from the Royal Commission into the Robodebt Scheme, to an appropriate person.”

The Commission accordingly made an announcement to that effect. Commissioner Brereton had made a mistake involving “a misapprehension […] of the extent to which a perceived conflict of interest required him to be isolated from the decision-making process.” His “participation in some steps in the process meant that a reasonable observer could possibly think that he Commission’s decision could possibly not be impartial.”

The NACC was, however, at pains to note that the Inspector’s Report made “no suggestion of actual bias and no finding of intentional wrongdoing or other impropriety. It expressly makes no criticism of the Deputy Commissioner who made the decision under delegation.”

Publicly, Commissioner Brereton’s conduct has drawn harsher criticism from political quarters. Greens Senator David Shoebridge found it baffling that he “sought legal advice on Robodebt looking for the opinion that it was permissible for public servants to act unlawfully to implement the Government desire for a Robodebt scheme.” Crossbench Senator David Pocock has called for an independent review of the Commission to be brought forward. “The Inspector’s findings and what they say about the Commissioner’s judgment are concerning, as is the way the NACC has operated to date.”

Brereton tried to pour some oil on the water regarding his erroneous decision. “As an appellate judge, I often found that judges of unquestioned competence, skill and integrity had made a mistake of law or fact.” How often, one is prompted to ask? In any case, this did not bother Brereton, who suggested that mistakes were regrettable matters “but the most important thing is that they be put right.”

The NACC has been given a second chance to do just that. But the waters around the integrity body have been muddied regarding perceived notions of impartiality in the decision-making process. The push for greater transparency in the body itself, a position championed by crossbenchers Pocock and Senator Jackie Lambie, has been given greater urgency.