Brereton’s Robodebt “recusal” claims a sham: Top ex-judge

ELIZABETH MINTER

ANTHONY KLAN

Claims by National Anti-Corruption Commission boss Paul Brereton that he “recused” himself from the Robodebt referrals have “no justification whatsoever” and are “simply wrong”.

Former Supreme Court of Victoria Court of Appeal judge Stephen Charles KC said Brereton’s “supposed recusal” over Robodebt referrals was meaningless and had been “completely undermined” by his actions.

Charles, who is a director the Accountability Round Table and co-founder of the Centre for Public Integrity, said Brereton’s claims suggest he is the wrong person for the job.

“It is strongly arguable that the government may not have picked the right person for the job as Commissioner of the NACC,” Charles said.

As previously reported by The Klaxon, Brereton not only remained intimately involved in the Robodebt referrals, he remained present at the one-hour, top-level meeting where the Robodebt matters were dealt with — only leaving the room as the final “decision” was made.

Further, Brereton, despite declaring his conflict, “retained visibility of significant steps taken” in relation to the referrals, and “contributed his own views on some issues when requested or when he considered appropriate”.

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Brereton was intimately involved in the NACC Robodebt “decision” meeting on October 19, 2023, as shown by red arrows. The period Brereton was outside the room is shown in green.  Source: FoI/NACC. Mark-ups: The Klaxon

In a remarkable twist, NACC Commissioner Brereton has stood by his claims that he “recused” himself — by claiming a new “definition” of the word, which is not used either at law or in common language.

In statements that have outraged legal and governance experts, Brereton has claimed the term “recuse” doesn’t mean what it does at law or in common usage, but rather, that it means only that a conflicted person is not the ultimate “decision maker” in a case.

In July last year the Robodebt Royal Commission referred six public officials to the NACC for criminal and civil action but on June 6 — almost a year later — the NACC announced it would not investigate.

Brereton is close personal friends with the most senior public servant responsible for Robodebt, Kathryn Campbell.

Under the former Coalition government’s Robodebt scheme, debts were unlawfully raised against more than 500,000 social security recipients, with some taking their lives.

The NACC has been refusing to respond to questions from The Klaxon since August 27 — following a string of major exposes — claiming it is “unable to assist further” citing “time and resources”.

(As revealed on August 29, Brereton has been paid almost $1 million by taxpayers in little over a year.)

On August 31 The Klaxon revealed Brereton, regarding his “recusal”, had said one thing in official correspondence to Attorney-General Mark Dreyfus — and another to his top colleagues at the NACC.

The Klaxon’s expose. Source: The Klaxon

On September 3 independent journalist Shane Dowling put questions to the NACC on the “recusal” matter.

The NACC responded that:

“Recusal is the act of declining (or refusing) to be the decision-maker in a matter.

Commissioner Brereton stated that he would recuse from decision-making. As the documents you refer to demonstrate, the Commissioner declined to be the decision-maker in relation to the Robodebt Royal Commission referrals and delegated the matter to a Deputy Commissioner.

Although recusal in the context of judicial decision making is not directly applicable to a decision of the Commission whether or not to commence an investigation, the precedents to which you refer do not support any different view.”

In scathing comments that cast serious doubt over not only the deeply embattled Brereton, but the Albanese Government’s new “anti-corruption regulator” generally, Charles said that Brereton was “simply wrong”.

Writing for news outlet Pearls & Irritations, Charles said it was “well-accepted law” that a “recusal” meant a judge must “take no further part in the proceeding”.

He said Brereton’s assertion that this was “not directly applicable to a decision of the Commissioner” was “simply wrong” and had “no justification”.

“It is well-accepted law that when a judge decides that he or she has a conflict of interest and that it is necessary to make a recusal from a proceeding, the judge must then take no further part in that proceeding,” writes Charles.

“In my opinion, there is no justification whatever for (Brereton’s) assertion and it is simply wrong.”

“It is well-accepted law that when a judge decides that he or she has a conflict…the judge must then take no further part in that proceeding” — Charles KC

The Oxford English Dictionary defines recusal as “the withdrawal of a judge, prosecutor, or juror from a case on the grounds that they are unqualified to perform legal duties because of a possible conflict of interest or lack of impartiality”.

“(Recusal is) the withdrawal of a judge, prosecutor, or juror from a case” — Oxford English Dictionary

Paul Brereton (far left), former Governor-General David Hurley (third from left), and Kathryn Campbell (third from right) in 2022. Source: Facebook/Sydney University Regiment

The scandal goes further even than the Robodebt matters.

Brereton’s claimed “recusal” in the Robodebt referrals would “not have prevented him approving the investigation of one of his enemies”, Charles said.

The “purpose of recusal” was to “prevent others being exposed” to favourable — or unfavourable — views of the person recusing themself.

“(It is) to assure the outside world that natural justice or fairness has been maintained in the decision whether or not to commence an investigation,” writes Charles.

“In the present case, Commissioner Brereton’s continuing presence, and making of comments on the Robodebt referrals until the moment of the final decision, completely undermined his acknowledgement of the conflict of interest and his supposed recusal.

“In other words, his ‘recusal’ was without consequence, and would not have prevented him approving the investigation of one of his enemies,” he writes.

More from The Klaxon on the NACC & Robodebt:

6 Sep – Questions over NACC Robodebt “investigation”

31 Aug – NACC boss misled Dreyfus over Robodebt

29 Aug – Million dollar NACC boss freezes media as questions heat up

26 Aug – “Recused” NACC boss Brereton at Robodebt meeting

23 Aug – NACC’s year-long Robodebt decision: just two pages long

22 Aug – NACC boss breaks own integrity policy over Robodebt

12 July – NACC marred by “silence and secrecy”

8 July – NACCered: How Dreyfus fudged the figures to deliver a secret regulator

1 July — Brereton’s NACC cloaked in military-grade secrecy

Charles said the “primary task” of the NACC was to “investigate and report publicly” whether “nominated persons have or have not been guilty of corrupt conduct”.

It was “no answer” for the NACC to refuse to investigate the Robodebt referrals because those people had already been investigated.

Charles said what had not occurred was a “determination by the only body with the jurisdiction to do so” — the NACC — whether the conduct in question constituted “corrupt conduct”.

“By refusing to act, NACC betrayed its core obligation and failed to fulfil its primary duty,” Charles said.

“In the light of the foregoing, it is strongly arguable that the government may not have picked the right person for the job as Commissioner of the NACC”.

Charles said the task of Robodebt Royal Commissioner Holmes “remains incomplete” and that if the NACC continues to refuse to investigate then the “sealed” information should be made public.

“If the NACC will not examine the referrals in the final sealed volume, the Attorney-General should now seek her approval to unveil the final volume and release the contents to the public so that we all may know the full extent of Commissioner Holmes’s conclusions in relation to her critically important investigation,” he said.

“This will also reveal the nature and extent of NACC’s failure to act.”

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Elizabeth Minter

Liz began her career in journalism in 1990 and worked at The Age newspaper for two 10-year stints. She also worked at The Guardian newspaper in London for more than seven years. A former professional tennis player who represented Australia in the 1984 Los Angeles Olympics, Liz has a Bachelor of Arts and a Bachelor of Letters (Hons).