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RUBY:

From Schwartz Media, I’m Ruby Jones. This is 7am.

When the Albanese Government created the long promised anti-corruption commission there was a sense of optimism that the Commission would weed out corruption and restore faith in politics.

But when it came to its first big test - investigating the robodebt scandal - it took the Commission a year to decide it would do nothing.

Now, there are concerns that the NACC is failing to live up to its obligations, hindered by silence and secrecy.

Today, special correspondent in Canberra for The Saturday Paper Jason Koutsoukis on what the National anti-corruption commission has achieved so far, and whether that’s enough.

It’s Monday, September 9.

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RUBY:

So, Jason, just over a year ago, the National Anti-Corruption Commission was established, and this came after much public outrage and mistrust. We were at a real low point, I think, when it came to faith in our political system, when the NACC was established, which meant that there were high expectations for it. So tell me about the promise of the NACC.

JASON:

That's right. Ruby, I think this was one of the biggest promises that Anthony Albanese made. When he was in opposition, they'd been talking about this pretty much non-stop for the the three years up to the 2022 election. You know, this was something that Scott Morrison had promised but never delivered on after the legislation was introduced towards the end of 2022. Anthony Albanese was very proud to stand up in Parliament, to be able to say that we've delivered on our promises.

Audio Excerpt - Anthony Albanese:

“We said we would introduce the legislation and we did it today, and it delivers on our promises. We promise broad jurisdiction. And what this legislation does is will allow for the investigation of serious or systemic corruption conduct across the Commonwealth public sector.”

JASON:

This was something that would, you know, restore the faith in our political system.

Audio Excerpt - Anthony Albanese:

“We do need to restore faith in our political system. We need to make sure that there is transparency, that there is accountability and that there is integrity.”

JASON:

One thing that became clear in November 2022 was that, while this new body was going to be independent from government, it emerged that there would only be public hearings in, in exceptional circumstances. So the Attorney-General, Mark Dreyfus, said that, you know, people should be afraid if they've been engaged in corrupt activities.

Audio Excerpt - Mark Dreyfus:

“Any third party who is seeking to adversely affect public decision making in a corrupt way, is going to be the subject of investigation by this commission.”

JASON:

So having set the bar so high, there have been some concerns since then that the, actually the NACC is not living up to its expectations. That was set by the PM and the Attorney-General and that in fact, it has betrayed its core obligations. And, and I think there is a growing sense of, disappointment and disquiet over the, the next performance, not just on the, on the crossbench, but I think some sections of the Labour caucus are also a little bit concerned that this body is not quite as powerful as we've been led to believe.

RUBY:

Well, let's talk more about that then, about these concerns about how the NACC is operating and perhaps falling short. What is it that you're hearing?

JASON:

Well, this week I spoke with a former New South Wales Supreme Court Judge Anthony Whealy. He's now chair of the Centre for Public Integrity, one of the leading think tanks in the push to establish a national integrity commission. And he's very disappointed about what he sees as the failures of the NACC to do what it's supposed to do. And I think the thing he's most furious about is robodebt and the NACC’s refusal to investigate six public officials that were referred to the NACC by the robodebt royal commission.

Audio Excerpt - News Reporter:

“The National Anti-Corruption Commission has ruled out further investigation into the public officials behind the disastrous robodebt scheme that saw hundreds of thousands of Australian families hounded for debts they didn't owe.”

RUBY:

Yeah, that was a big moment when the NACC decided not to investigate robodebt, despite specifically being asked to. I think that was the point at which a lot of faith in the NACC began to crumble. So what was the reason that the commissioners gave for that decision?

JASON:

So the NACC announced on June 6th that it would not investigate the referrals, because the conduct of the six public officials had already been explored by the robodebt royal commission, and that further investigation was unlikely to produce significant new evidence.

And the commissioner, Paul Brereton, spoke about the robodebt decision at a public sector anti-corruption conference in July. And, he said that rather than investigating what it had already been exposed by the royal commission, the way that his body, the National Anti-Corruption Commission, was addressing these issues like robodebt, was through prevention and education and equipping decision makers to make decisions ethically.

But we also learned on June 6th that Paul Brereton had recused himself from that decision. We don't have a reason why he delegated the decision, whether to investigate or not to to a deputy commissioner. We do know that it was to avoid a perception of conflict of interest, but it hasn't really been been made clear why.

So there are a lot of questions still hanging over this decision.

So when Mark Dreyfus announced that, there would only be public hearings except in exceptional circumstances. Yeah, this came as a surprise to Anthony Whealy. And he told me that he had always believed that public hearings would be a core part of the National Anti-Corruption Commission. And he'd consulted with the attorney general early on, during the process of establishing the NACC. He said there'd been a good deal of agreement about what the body should look like and what powers should have.

And he told me that the, the, this limit on the public hearings had never been raised with him.

RUBY:

That's interesting that the secrecy provision, according to Whealy, wasn't mentioned as part of the consultation process. But by the time the, the NACC was created there it was. So what has that provision meant Jason?

JASON:

I think what Anthony Whealy said to me was that, we've got this veil of secrecy around the National Anti-Corruption Commission. And in the main he said that the new body is, is really been strangely silent. And there have been a few announcements. Anthony Whealy said, but not very much and no positive indication as to, to what the body is doing. In other words, it seems to be. Yeah, surrounded by this wall of relative secrecy.

RUBY:

After the break - is there a good reason why the NACC’s hearings should be behind closed doors?

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RUBY:

Jason, we've been talking about the secrecy that surrounds the NACC's activities, all its hearings, a largely happening behind closed doors. So what is it that we actually know then about what the NACC has been doing for the past year? What has it achieved since it was established?

JASON:

Well, I think, you know, you're exactly right. It's it's very difficult to know. It's it's impossible to really judge what they've been doing because we don't really know.

What we do know is that, the commissioner, Paul Brereton, did provide some insight into just how many referrals have been triaged and assessed in the NACC's first year to June 30th, 2024, the commission had received 3189 referrals of suspected corrupt conduct. About 90% of those were excluded at the triage stage because they did not concern a Commonwealth public official, or they didn't raise a corruption issue.

Commissioner Brereton also revealed that the NACC had opened 26 corruption investigations, seven of them jointly with other agencies, and that they referred nine corruption issues to other agencies for investigation. Only one of the NACCs investigations has resulted in an individual being charged. It's pretty thin pickings. You know what the next, actually had so far? I mean, we will see the publication of annual reports and other information, you know, regarding, what the next been doing.

But as Professor Anne Toomey, said to me, she's professor emeritus at the University of Sydney, she says, you know, it's possible that the NACC is is operating extremely well, but we just don't know what the NACC’s doing. And she does have a bit of a problem with that.

RUBY:

And I think, Jason, the case for more transparency is clear so that the public can know that corruption is being investigated. But can we talk for a moment about the reasons to not have public hearings? Is there a case to be made that if the NACC was to do that, then potentially referrals could be made for political reasons and people, who haven't actually done anything wrong, their names, you know, could be tarnished.

JASON:

That's right. And that's definitely the strong view of, of quite a number of people. One of the people I spoke to is William Stoltz. He's a lecturer at the Australian National University's National Security College. He said the NACC should be aiming to avoid people misrepresenting or weaponising the referrals process for political or other purposes. And, he says a decision not to progress a referral shouldn't be regarded as an indication of innocence. And nor should the existence of a referral against a public official be regarded as a mark of guilt.

So he thinks that we need more secrecy, and that'll help the NACC do its work.

While there's been calls for, you know, public hearings. We should also remember that with bodies like the New South Wales Independent Commission Against Corruption, you know, there have been a lot of concerns that public hearings that they've conducted have, you know, descended into show trial like rituals.

Audio Excerpt - News Reporter:

“Gladys Berejiklian has lost the battle to clear herself of corruption findings. The former premier was hoping to overturn the ICAC's ruling that she engaged in serious, corrupt conduct.”

JASON:

And, you know, we saw Gladys Berejiklian, the former New South Wales premier, who was essentially forced to resign because of, you know, the public hearings that were, you know, investigating some of her personal relationships while she was premier.

Audio Excerpt - News Reporter:

“A Premier turned Optus executive unable to shake the shame of her secret relationship with Daryl Maguire. Their love affair ended her time at the top.”

JASON:

So while there are some concerns about how the the NACC is operating, some people like Xavier Boffa from the Samuel Griffith Society, this is on the obviously on the right of Australian politics. But he, he said to me, look, any talk of reform to the NACC, it's premature and more likely to be ideological rather than evidence based. In his view, Australians must remain vigilant that the NACC does not devolve into a a kangaroo court that compromises the rule of law by engaging in theatrical public show trials.

When it comes to ICAC. Yeah. Mark Dreyfus has said that the exception, kind of puts the the National Anti-Corruption Commission in line with ICAC, because even though we see a lot of high profile cases in the media, actually only about 5% of those hearings are public. But the converse of that is that, New South Wales ICAC does have a broader ability to hold public hearings. And, and having the ability to do so hasn't led to an overuse of that, of that privilege. So it's even though the Attorney-General, Mark Dreyfus, says that's used that argument the way the, the New South Wales ICAC is operated seems to, to prove, that, you know, having the ability to hold public hearings is a privilege that is used wisely by the commissioners.

RUBY:

And at the end of the day, this all goes to public trust, doesn't it? That's why the commission was set up in the first place, because there was this deep public distrust about what politicians and public officials might be doing behind closed doors. So if the NACC isn't working to restore that faith because it isn't transparent enough, then is the NACC even working at all?

JASON:

Well, I think it probably is too early to say whether the NACC is working or isn't working. But I do think that it hasn't properly explained the reasons why it didn't investigate the robodebt referrals.

And I think that has seriously undermined public faith in this body that was set up to investigate exactly those types of cases. Having said that, I do think we need to give the NACC more time to demonstrate whether or not it can do the job that it has been asked to do by by this government.

From what I can tell. Paul Brereton is a person of high integrity. But I do think they haven't properly explained the decision making around not investigating the robodebt referrals.

RUBY:

Jason, thank you so much for your time.

JASON:

Ruby, always a pleasure talking with you. Thanks very much.

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RUBY:

Also in the news today,

Questions on sexual orientation and gender will be included in the next census.

Treasurer Jim Chalmers confirmed the new position yesterday, saying the government has listened to the community.

His comments follow weeks of criticism of the government’s decision to withdraw questions on sexuality and gender on the basis they would be divisive.

A government statement confirms only people sixteen and over will be asked the new questions and there will be an option not to answer.

And, Protests have broken out across France, in response to President Emmanuel Macron’s decision to pick a conservative prime minister.

73 year old Michel Barnier is a former Brexit negotiator. His appointment comes after a snap election in June left France with a hung parliament. Protest organisers said about 300,000 people took to the streets across France with just over half in Paris. But police in Paris estimated 26,000 people had protested there.

I’m Ruby Jones, this is 7am. Thanks for listening.

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