National Anti-Corruption Commissioner Paul Brereton takes full responsibility for the NACC’s failure over Robodebt investigations. Photo: NACC.
The independent Inspector of the National Anti-Corruption Commission has found Commissioner Paul Brereton acted inappropriately in the Commission’s decision not to investigate anyone over the illegal Robodebt Scheme.
Gail Furness SC has delivered the report of her investigation into the NACC’s gobsmacking decision not to pursue any of the six people referred to it by the Royal Commission in the Robodebt Scheme.
The Inspector found Commissioner Brereton to have failed to act properly after declaring a conflict of interest in relation to one of the referred persons he apparently knows well.
“I concluded that the NACC Commissioner engaged in officer misconduct as defined in section 184(3) of the National Anti-Corruption Commission Act 2022 (Cth NACC Act), being conduct that is not unlawful but arose from a mistake of law or fact,” Ms Furness said.
While the Commissioner had declared the conflict, he did not remove himself from the decision-making process even though he had designated a Deputy Commissioner to decide whether to investigate those who had been referred.
Instead, his involvement was “comprehensive” throughout the process.
“I concluded that a third-party, fair-minded observer might reasonably apprehend that the NACC Commissioner’s involvement might have impinged on the impartiality of the decision-making of the delegated Deputy Commissioner,” Ms Furness wrote in her report.
“My conclusion is based on an apprehension of partiality rather than actual partiality. I make no finding against the delegated Deputy Commissioner.”
The Inspector recommended the NACC appoint an appropriate independent person to reconsider its decision not to pursue the Robodebt referrals.
The NACC’s response was ‘strategically leaked’ to friendly media by someone hoping to get ahead of the release of the Inspector’s report on Wednesday (30 October).
The Commission officially released the statement following the Inspector’s report being handed down.
“The National Anti-Corruption Commission has decided to have an independent eminent person reconsider its decision not to investigate the Robodebt Royal Commission referrals,” its statement said.
“With the release today of the Report of the Inspector, the Commission can now announce that it is appointing an independent person, who will decide whether or not the Commission should investigate the Robodebt referrals.
“In the course of the Inspector’s investigation of the Commission’s decision, the Inspector provided to the Commission an opinion of a retired judge who found there had been a mistake of law or fact in the process by which its original decision was made.
“The mistake involved a misapprehension by the Commissioner of the extent to which a perceived conflict of interest required him to be isolated from the decision-making process.
“The opinion was to the effect that the Commissioner’s participation in some parts of the process meant the decision was affected by apprehended bias.
“Apprehended bias means that a reasonable observer might think that the Commission’s decision might not be impartial. In other words, the Commissioner’s participation in some steps in the process meant that a reasonable observer could possibly think that the Commission’s decision could possibly not be impartial.
“The Commission decided, without waiting for the conclusion of the Inspector’s investigation, that that possibility required in the public interest that its decision be independently reconsidered, as the Inspector had foreshadowed recommending.
“The Commission is in the process of engaging such a person.”
The NACC points out that the Inspector’s report contains “no suggestion of actual bias and no finding of intentional wrongdoing” or other impropriety.
It also makes an extra effort to note that under the NACC Act, any mistake of law or fact falls within the definition of ‘officer misconduct’.
“The definition captures a very wide scope of conduct, including some which would not usually be called ‘misconduct’,” it states.
“In this case, the finding of ‘officer misconduct’ is not a finding of wrongdoing, it is a finding of ‘conduct that is not unlawful but arose from a mistake of law or fact’, which the Inspector describes as ‘an error of judgement’.”
Commissioner Brereton said he accepted the report’s findings and that his judgement in this respect has been found to be mistaken.
He takes sole responsibility for the mistake.
“Mistakes of law or fact are a professional inevitability for judges, tribunal members and administrative decision-makers,” he said in a statement.
“Throughout my judicial career I was, like every other judge, from time to time reversed on appeal for a mistake of law or fact.
“As an appellate judge, I often found that judges of unquestioned competence, skill and integrity had made a mistake of law or fact.
“Our system requires that we accept such findings, even when we don’t entirely agree with them. This is no different. 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.”
The illegal Robodebt scheme caused extensive grief and trauma, with some recipients reported to have taken their own lives after receiving false debts.
The Royal Commission referred six people to the NACC for prosecution.
In June, the NACC refused to investigate those referred.
Original Article published by Chris Johnson on Riotact.
