NACC decision not to investigate Robodebt referrals will be revisited by ‘eminent person’

The National Anti-Corruption Commission’s controversial decision not to investigate referrals from the Robodebt Royal Commission will be revisited by an independent person.

The embarrassing turnaround comes after the NACC’s inspector, Gail Furness, found NACC Commissioner Paul Brereton had not adequately excused himself from the decision not to investigate the six referrals. The inspector received an opinion from a retired judge.

Brereton knew one of those referred professionally and so delegated the decision-making, but was still involved in the process, according to the inspector. Under the relevant act, his behaviour was “officer misconduct”.

The inspector said she had received more than 1,200 complaints about the decision not to investigate those referred.

“There were, across the complaints, expressions of profound disappointment in the NACC’s decision,” she said in her report.

More generally, the NACC, which has been operating more than a year, has been criticised for the high level of secrecy surrounding it, making it difficult to judge how well it is performing.

The NACC said in a Wednesday statement the mistake involved Brereton’s misapprehension “of the extent to which a perceived conflict of interest required him to be isolated from the decision-making process” about whether to investigate the referrals.

“The opinion [from the retired judge] was to the effect that the Commissioner’s participation in some parts of the process meant the decision was affected by apprehended bias,” the NACC statement said.

“Apprehended bias means that a reasonable observer might think that the Commissioner’s decision might not be impartial.”

The NACC is in the process of engaging an “independent eminent person” to look at whether there should be an investigation into those referred.

The names of the six are in the secret section of the Robodebt royal commission report and have not been made public. There is continued pressure for the release of this section, and the government is considering whether to do so.

In its statement the NACC stressed the Inspector’s report “contains no suggestion of actual bias and no finding of intentional wrong doing or other impropriety”.

It said the royal commission’s referrals were received in the NACC’s first week, when it was establishing processes for its work generally.

The statement said Brereton had declared immediately and repeatedly that he had a perceived (though not actual) conflict of interest because he had a previous professional relationship with one of the people referred. It was not a personal relationship.

Brereton decided it would be appropriate to delegate the decision whether to investigate to a deputy commissioner, and to excuse himself from the meeting when the decision was to be made, the statement said.

But the inspector said Brereton “should have not only designated a delegate but removed himself from related decision-making processes and limited his exposure to the relevant factual information.

"The NACC Commissioner’s involvement in the decision-making was comprehensive before, during and after the 19th October 2023 meeting at which the substantive decision was made not to investigate the referrals.”

Brereton said he took sole responsibility for the mistake. “Mistakes are always regrettable, but the most important thing is that they are put right. This mistake will be rectified by having the decision reconsidered by an independent eminent person”.

Crossbench senator David Pocock called for the independent statutory review of the NACC to be brought forward.

He said the NACC’s purpose was “to rebuild public trust in politics and public institutions” but “I am concerned that it has not delivered on this mandate and in particular that it lacks transparency”.

“The Inspector’s findings and what they say about the Commissioner’s judgement are concerning, as is the way the NACC has operated to date,” Pocock said in a statement.

“I believe that the independent statutory review of the NACC should be brought forward so we can better examine these issues and look to refine the NACC’s operations if required.” The review is due in 2027.