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DANIEL:

From Schwartz Media, I’m Daniel James, this is 7am.

When the Royal Commission into the Robodebt Scheme handed down its findings, the commissioner went to great lengths to refer six individuals to the newly established National Anti-corruption commission for investigation.

What followed outraged many, particularly the victims of the scheme. The NACC announced that it would not act on the referrals.

The decision received so many complaints that the decision itself has been investigated.

Yesterday, that investigation found that not only should robodebt be revisited, but that the head of the NACC engaged in officer misconduct.

Today, senior reporter for The Saturday Paper Rick Morton, on what this means for the integrity of Australia’s corruption watchdog.

It’s Thursday, October 31.

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DANIEL:

Rick, I think I know you to be, well, somewhat of a cool headed guy. Thoughtful rather than do someone who could turn in a bad turn. But you've expressed a lot of anger over the decision from the National Anti-Corruption Commission earlier this year not to investigate robodebt.

RICK:

Yeah, thank you for that kind assessment. I'm not sure it's true because I feel myself growing increasingly mad about the state of the world. But the NACC, you know, I was of the opinion that they completely abdicated their responsibility into seriously assessing six referrals from the Robodebt Royal Commission relating to five public servants and one presumably minister, about their role in this kind of systemic failure and to judge whether that involved corrupt conduct or not. And they just decided there was nothing to see here and they didn't want to look into it.

DANIEL:

So let's look at the decision. What did the NACC say exactly when they decided not to look into it?

RICK:

So they released a public statement, the only public statement they've made about it, not even one page long. And they essentially said that the royal commission already did a thorough investigation. They fully explored the conduct involved and said that they didn't want to create unequal outcomes if they were to come to a different opinion based on whether, you know, corrupt conduct was found and also that there'd be no value, no public interest value in the National Anti-Corruption Commission, making an adjudication of whether there was corrupt conduct.

And by the way, let's just refer everything to the Australian Public Service Commission, which is doing an investigation and they've got sanctions. They can apply and you know, they'll look into it. Now, we now know that that public statement was misleading and has been judged as such by the independent inspector of the NACC. So essentially they were saying we don't have a role to play.

DANIEL:

Which caught many people out by surprise because people thought the NACC was set up to explore this exact type of thing.

RICK:

It's, it's right there in the legislation. You know, there are four levels of conduct that can attract a term of corruption, including, you know, breach of public trust. And of course, this was the very first decision they made in public and they had it handed to them on a platter and they sat on it 11 months, they sat on it, and then they came up with this suggestion that not only are they not investigating, they've done an assessment, but there's no investigation. And also, you know, they say, apart from saying that someone acted corruptly, there's not anything we can do, which is precisely the raison d’etre; that's why they exist.

DANIEL:

And so now there's been an investigation into that decision not to pursue robodebt by the NACC. Can you tell me what the investigation into that decision found?

RICK:

Yeah. So we we finally, you know, hear in July this year from the NACC and they put out their statement saying nothing to see here. There were, you know, eventually 900, at least 900 individual complaints from members of the public to an office called the Inspector of the National Anti-Corruption Commission, which is held by Gail Furness SC, who is also the inspector of the New South Wales Independent Commission Against Corruption. It is the only body outside of a parliamentary committee that oversees, you know, appointments to the NACC and can in its own conception, investigate issues of corruption or misconduct as they were carried out by officers of the NACC.

And so it's the watchdog of the watchdog, essentially. And Gail Furness decided to open an investigation because there was sufficient merit to looking at whether the commissioner of the NACC, former court Justice Paul Brereton, should have removed himself from all decision making in relation to a conflict of interest that he had declared in relation to a person we’ll call referred person number one, a public servant who Mr. Brereton. Commissioner Brereton has variously told Gail Furness he knew well, they had a close involvement and they were well known to each other. It's a position that he has attempted to walk back from publicly by saying, you know, this wasn't a close personal relationship, it was somebody he knew in a former professional life.

That statement in and of itself was roundly rejected by another former Federal Court judge Howard Robertson, SC, who was engaged by Gail Furness to do kind of a parallel investigation that she could rely on in her investigation of NACC, are you following? And so Allan Robertson said that Commissioner Brereton was glossing over the fact that he knew referred person number one well, and that it wasn't enough to say that it was a former professional relationship, because that's not what he told Gail Furness.

And so what we're seeing now is the outcome of that investigation and whether Commissioner Brereton did more than he should have and involved himself more than he should have in the decision to not do anything about the six people referred by the Robodebt Royal Commission.

DANIEL:

After the break - can the corruption watchdog repair its already tarnished image?

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DANIEL:

So Rick, this investigation into the NACC’s decision not to follow up on referrals from the Robodebt Royal Commission, it's recommended that that decision be revisited. Do we know what happens from here?

RICK:

I mean, they have to now engage an independent, eminent, independent person. Of course, the NACC gets to choose who that person is to re-examine their referrals. We know that they had internal legal advice, which certainly seemed to agree that there were corruption issues and that there could be findings made. But that legal advice also went so far as to say that there were gaps in the documentary evidence that meant they were not free from doubts that the findings made by the royal Commission were serious and well supported in some cases. But it was easier to disprove in other cases, or at least argue.

And one of the reasons why they declined to do anything the first time around is that the people who were subject to those findings, such as referred person number one and the other five would likely litigate and fight every single decision along the way. And they would want to re-examine witnesses, they would want to cross-examine, make submissions, which, of course, is all their right. And so they should have been able to test these things. And of course, not only did they not do that, they wrote to the six people to say, we're not looking into this any further. Here's the public statement we're going to make. Do you want to say anything about it? And only one person took them up on the offer and it was referred person number one, the person about whom the commission had to make a conflict of interest disclosure. And their lawyers referred person number one as lawyers change the language in the public statement issued by the NACC in several quite important editorial ways.

They don't like the idea that they say that the commission, the royal Commission, had fully exposed the conduct of individuals. And so that got changed to canvassed and then later it got changed to explored. And then they wanted to make some watering down changes to the language later on about, you know, beyond considering whether the conduct in question amounted to corrupt conduct. They essentially tried to just tamper that down and Commissioner Brereton accepted those changes. The commissioner of the National Anti-Corruption Agency was giving people who they had made, we now know, on a flawed assessment process, a decision to not investigate for corruption. And we have internal correspondence from the commissioner himself to the deputy commissioner saying let's not get hung up on the corruption issue. And they're giving that to the people who are the subject of that potential investigation and allowing them to water down the language, not the facts, but the language in the public statement that is issued under the banner, the imprimatur of the NACC.

DANIEL:

So what sort of powers does the NACC have to deal with robodebt that no other body has?

RICK:

So the NACC doesn't really have a role beyond finding that there is corrupt conduct. And I think there's a normative value in that of actually applying the label corrupt conduct to people who have done the wrong thing. There might not be any enduring kind of civil or criminal penalty, but that is something that you don't need to scrub for your name. And I know for a fact that it's something that the people involved in Robodebt really do not like being reminded of, of their role in this. And absent any other findings in any other justice, this was really the best course of action.

But again, none of that is an argument for an institution whose sole remit is to investigate and assess corrupt conduct, to decide that they don't feel like doing it. And particularly under such a flawed process where, as Gayle Funness points out and Allan Robertson, her reviewer points out, there is a huge difference between saying, I've got a conflict of interest and I'm not going to be the decision maker and saying I'm not going to be involved in any of the decision making around this.

And what happened was that there is a matter of minutes in that October meeting where Brereton stepped out of the room when the, quote unquote decision was made. But he was involved comprehensively before, during and after. And I think we have a serious problem when we think that the NACC just can't do anything and therefore we shouldn't care that they abrogated their responsibility. And then why have them? We're paying a lot of money for it.

DANIEL:

So this was the first decision of the NACC. It blew its integrity out of the water in the minds of a lot of people. What does the decision mean for the commission moving forward? Can it regain some sort of semblance of credibility after this?

RICK:

I honestly don't think they can. They've torpedoed their credibility and they they did it, you know, almost single handedly. Mind you, they had a lot of help from what was essentially a bipartisan two party political project to create a toothless tiger, not just toothless, but the tigers arthritic. It's got osteoporosis. Like it's just it's not doing well. And it's in no one's best interests if you're a politician to have a truly effective accountability body.

And what we saw was, you know, the Coalition and Labor with decision making over who gets to be appointed to this body. I think the Coalition were given quite a lot of say in some of the commissioners. Brereton was a consensus commissioner by all accounts. And the legislation that underpins the Act allows an act to do most of its work in secrecy, which, you know, certain types of lawyers and barristers and judges love because they're they think that the law is perfect, of course, and quite above the hoi polloi and anyone who might, you know, terrible, icky journalists like myself who might have questions of propriety because what would we know?

But of course, we got lucky in this case, you know. You know, Brereton put out a statement saying, you know, I made an error of judgement. Judges make errors all the time. That's why we have appeal processes and all the rest of it. But what happened in this case was that he made a significant error and that amounted to engaging in official misconduct. That error would have gone unchecked were it not for the public outcry and the sheer kind of public interest of the Robodebt case which sparked the interest of the inspector.

And then, of course, we we are lucky that we have the inspector that we do, because, you know, that could have ended up another way. And so this idea that all of these decisions behind closed doors are inherently perfect is just it's clearly wrong. And it's only now by sheer half luck and half, thank God it's Gayle Funness, that we're actually getting a peek behind the window of what they were talking about in making these decisions. And it's like they had no idea what they were doing. The NACC is shot.

DANIEL:

Rick, thanks so much for your time.

RICK:

Thanks so much, Daniel. I appreciate it.

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DANIEL:

Also in the news,

Australia’s annual inflation rate has dropped a full percent, from 3 point 8 percent mid year to 2 point 8 percent - the lowest rate in three years.

Data from the ABS also shows pressure on the economy is easing with electricity prices falling by 17.3% in the last quarter.

Economists are optimistic the figures mean the Reserve Bank may make an interest rate cut in 2024.

And, Health Minister Mark Butler says he has enormous respect for the leaders who lead Australia’s Covid-19 response.

The comments follow an independent inquiry finding that Australia’s response resulted in fewer deaths than in other countries. But it also found the heavy-handed restrictions and inconsistent responses had likely burned through the goodwill of Australians, who may not accept such measures in any future pandemic.

The Minister said he did not think leaders needed to apologise to the public, and that the newly announced Centre for Disease Control will improve Australia’s response to future outbreaks

I’m Daniel James, 7am will be back tomorrow.

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