Life on the West Island - NACC-ered?

When the West Island government of Scott Morrison was defeated in 2022, there was much public concern about corruption, and Labor came to power promising to tackle the problem. It duly obliged with the National Anti-Corruption Act, and the resultant Commission commenced activities on July 1, 2023. It was headed by respected judge and military officer Paul Brereton. As Inspector-General of the Australian Defence Force, he had led a highly praised and thorough investigation into alleged criminal misconduct on the battlefield by Australian Special forces in Afghanistan. Hopes were high that under his leadership the National Anti-Corruption Commission (NACC) would be similarly fearless in identifying corruption in the federal administration.

Now, more than two years later, the NACC is coming under fire for its apparent failure to produce results. In a recent searing analysis, senior journalist Nick Feik said that the NACC had lost public trust and asked whether it was possible for it to recover. In part, Feik wrote:

The NACC has over two hundred employees and an annual budget of over $60m but has yet to land a single major finding from over 5,000 referrals. Amid a series of new revelations about its chief commissioner, the NACC faces major challenges in regaining public trust. But while the strain is beginning to show, there have been few signs of progress either in terms of results or accountability.

“If public confidence is being impacted, it’s not our work that’s creating a public confidence impact,” NACC chief executive Philip Reed told Senate estimates last week. Indeed, it would be difficult to judge the NACC by its work, because the public has seen so little of it. In more than two years of operations, the NACC has initiated and completed only one successful corruption investigation — a low-level bribe case involving a Western Sydney Airport procurement manager.

“The commission has 38 corruption investigations underway, and 12 of those are joint investigations,” Reed told estimates. It has also “finalised 10 investigations, nine when it became clear that corrupt conduct would not be found and one where a corruption finding was made”. By any stretch of the imagination, it hasn’t been a strong start for the integrity watchdog.

But perhaps of greater concern than its glacial progress has been the missteps made by NACC commissioner Paul Brereton. The Robodebt investigation, the most high-profile of NACC’s cases, has been thoroughly mismanaged and continues to cost the organisation dearly. Revelations of previous ADF links between commissioner Brereton and former DHS secretary Kathryn Campbell undermined the NACC’s initial decision not to take on the Robodebt investigation.

This decision was later reversed after the intervention of NACC inspector Gail Furness, when Brereton was found to have engaged in “officer misconduct”, ironically becoming the first senior public figure subject to a negative finding under the NACC legislation.

But even the damage done by the perceived conflict involving Kathryn Campbell failed to convince Brereton to sort out his Defence relationships. A recent ABC report revealed that Brereton continued to consult with the ADF while working for the NACC. At the Senate estimates hearing, Reed attempted to exonerate Brereton by explaining that it was unpaid consulting work related to his previous work on the Afghan war crimes case (which coincidentally also sits in limbo). But Greens Senator David Shoebridge raised the obvious criticisms: How could Brereton both be a senior officer of the ADF and the head of the organisation tasked with investigating it?

“The fact that the head of the NACC retains the rank of major general, the third highest rank in the Defence Force, and continues to have an active role with Defence, means there is a real question mark over his ability to undertake investigations of Defence with appropriate objectivity and free of bias,” said Shoebridge. “The fact that the role is honorary, meaning it is not paid, doesn’t remove the questions of bias. In fact, it highlights it.” Shoebridge pointed to the fact that there had been 120 active referrals to the NACC on Defence-related matters that are affected by Brereton’s actions.

Senator David Pocock, at the same estimates session, joined in on the criticisms of Brereton. “Why on earth do we allow a commissioner on $800,000 a year to engage in things which potentially mean we’re going to have to get someone else to do the job for which he’s been paid so much?” Pocock asked Reed. “You’ve got to understand: this is bonkers if you’re out there in the public.”

One of the major flaws in the NACC is its lack of public transparency, mainly because it does not hold public hearings. This was highlighted by journalist Jason Katsoukis, writing in The Saturday Paper that Albanese had personally overruled a push in cabinet by then attorney-general Mark Dreyfus to give the NACC wider discretion to hold public hearings. Albanese insisted that hearings be held in private unless “exceptional circumstances” existed. So far, there have been no public hearings, to the obvious detriment of the organisation’s reputation.

Feik reports that Deputy commissioner Kylie Kilgour was forced to defend the lack of public hearings this week, telling an anti-corruption commission conference in Melbourne, “absolutely, we will do a public hearing” — but none of the investigations had yet met the threshold of exceptional circumstances. If a case such as Robodebt, does not meet the threshold, what will? This involves a matter of broad public interest and which the NACC has already stumbled on. If there was ever a case for public hearings to restore public trust, this is surely it.

In relation to the NACC overall, Feik concludes

Voters anticipated the NACC would bring much-needed integrity and oversight to public affairs in Australia. They expected it would bring scrutiny to the allegations around, among others, the “sport rorts” affair and similar discretionary grants schemes; Eastern Australia Agriculture’s “watergate” sales to the Commonwealth; the web of unusual financial interactions around former Liberal minister Stuart Robert’s Synergy 360; the many allegations around Home Affairs’ huge offshore detention contracts; the government’s $30 million acquisition of land near the proposed Western Sydney Airport that was valued at $3 million a year earlier; not to mention the raft of scandals related to defence contracts. These are the tip of the iceberg, yet the NACC has failed to make a dent in any of them.

The NACC is yet to prove itself in any way, and after more than two years, it’s incumbent on both the Albanese government and chief commissioner Brereton to restore its reputation in whatever way they can. The public will need to see results or resignations - asap.

Could it be that by its inaction and conflicts of interest, the Commission has NACC-erred itself?