National Anti-Corruption Commission boss Paul Brereton has misrepresented the findings of misconduct against him, downplaying their seriousness, says one of the nation’s top former judges.
Former Supreme Court and Court of Appeal judge Dr Margaret White said Brereton’s failure to recuse himself from the decision of whether to investigate over Robodebt was not a simple judicial “mistake” or “error of judgement”, as he has claimed.
“The Commissioner in (his) explanation in the media statement (said)…we all make mistakes, judges make mistakes all the time,” White said.
“This is not that kind of case.
“Can I just emphasise that?” she said.
“This is not that kind of case” — Dr Margaret White
White, who is a director of the Centre for Public Integrity and a former Deputy Chancellor of the University of Queensland, said there had been attempts to “minimise” Brereton’s misconduct.
“This is not like hearing a case, making some wrong findings of fact which the appeals court says you shouldn’t have done, or that you might have misconceived the law,” White said.
“This is much more fundamental.
“It is so serious and essential that you cannot minimise it in the way which I think there’s been an attempt to do,” White said.
“It is so serious and essential that you cannot minimise it in the way which I think there’s been an attempt to do” — Dr Margaret White
On October 30, at the same time as NACC Inspector Gail Furness SC released her damning misconduct findings against Brereton, the NACC released a statement which included claims from Brereton, which experts say misrepresents his wrongdoing.
More from The Klaxon on the NACC & Robodebt:
7 Nov – Robodebt NACC hearings must be public: Top judge
26 Sep – NACC Inspector will “investigate” over Robodebt
24 Sep –Robodebt “conflicts” extend beyond Brereton – NACC hides the documents
21 Sep – GUESS WHO? The $600,000 question at the heart of Robodebt
13 Sep – Not one person “punished” over Robodebt
In the statement, Brereton, who is a former judge, said “mistakes of law or fact” were a “professional inevitability for judges, tribunal members and administrative decision-makers”.
“Throughout my judicial career I was, like every other judge, from time to time reversed on appeal for a mistake or law or fact”, Brereton said.
“Throughout my judicial career I was, like every other judge, from time to time reversed on appeal” — Paul Brereton SC
Those claims are despite NACC Inspector Furness finding Brereton had engaged in “officer misconduct”, which is equivalent to “agency maladministration”.
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Among those called to give evidence to the Robodebt Royal Commission, clockwise from top left: Scott Morrison, Christian Porter, Stuart Roberts, Michael Keenan, Alan Tudge, Marise Payne. Source: Various/ABC News
White, who was a judge of the Queensland Supreme Court and the Queensland Court of Appeal, said the NACC Act contained “unfortunate” wording, which had assisted those trying to downplay the seriousness of Brereton’s misconduct.
She said the term “mistake or law or fact” was the only “slot” in the legislation that Brereton’s misconduct fit into.
But the term “mistake” — repeatedly used by Brereton — downplayed the wrongdoing.
“It is a pity about that word (mistake); it’s in the legislation though,” White told a seminar held by the Centre for Public Integrity.
“It does tend to diminish the seriousness of it… it’s a little unfortunate but it was the only slot really, where this (misconduct) fitted”.
Former Federal Court judge Michael Barker KC, also a director of the Centre for Public Integrity, said Brereton’s “defensive” response included claims that had been formally rejected by the investigation.
“It seems to me that Mr Brereton’s response is a little defensive, some of the points made I think are actually dealt with by Alan Robertson and discounted in his reasons,” Barker said.
“Some of the points (Brereton) made…are actually dealt with by Alan Robertson and discounted in his reasons” — Michael Barker KC
Furness appointed former Federal Court judge Alan Robertson SC to prepare a report on the decision by NACC not to investigate six public officials referred to it by the Royal Commission into Robodebt.
Today marks two weeks since Furness released her damning findings, based on advice provided by Robertson.
Brereton and the NACC did not respond to a series of questions from The Klaxon, including whether Brereton will stand down over the affair.
That’s despite widespread calls for Brereton to resign, mounting serious pressure on the Albanese Government as it heads to an election.
More from The Klaxon on the NACC & Robodebt:
9 Sep – Brereton’s Robodebt “recusal” claims a sham: Top ex-judge
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
William Partlett, an Associate Professor in law at the University of Melbourne, and anti-corruption commission expert at the Centre for Public Integrity, said Brereton should resign.
“The reputation of the institution of this newly created anti-corruption commission rests heavily on leadership and in this case he has shown his leadership to be lacking,” Partlett said.
“If the public is losing trust in the National Anti-Corruption Commission it won’t be able to play its role as guardian of the public trust itself.
“So, I think he should resign his position, yes,” he said.
Former Queensland Supreme Court and Queensland Court of Appeal judge Dr Margaret White.
Former NSW Supreme Court judge Anthony Whealy KC, who is Centre for Public Integrity chair, said that if it were him, he would feel the need to resign.
“I’m quite startled really that Paul Brereton…couldn’t see that this would be the wrong thing to do,” Whealy told the ABC.
“If I were in his position I would…probably feel the need to step down”.
“If I were in his position I would…probably feel the need to step down” — Anthony Whealy KC
Under Robodebt, run by the former federal Coalition Government, $1.7 billion in debts were unlawfully raised against more than 500,000 social security recipients, with some taking their lives.
In June, the NACC shocked the nation when it announced it would not investigate any of the six public officials referred to it — 11 months earlier — for criminal and civil action by the Robodebt Royal Commission.
The following week, having received almost 900 complaints, Inspector Furness announced action, culminating in her October 30 report.
More from The Klaxon on the NACC & Robodebt:
23 Aug – NACC’s year-long Robodebt decision: just two pages long
22 Aug – NACC boss breaks own integrity policy over Robodebt
8 July – NACCered: How Dreyfus fudged the figures to deliver a secret regulator
1 July — Brereton’s NACC cloaked in military-grade secrecy
Documents obtained under freedom of information showed that behind-the-scenes, Brereton had declared a conflict of interest involving one of the Robodebt Six.
Brereton identified the person to fellow officials as someone he “knows well”, “who is well known to me” and “with whom I have had a close association”.
The identities of the Robodebt Six have not been released, but the person referred to by Brereton is widely known to be Kathryn Campbell, the top public official responsible for Robodebt.
Furness found Brereton not only failed to recuse himself from the decision of whether to investigate the Robodebt Six, but that his involvement in the decision had been “comprehensive”.
“I found that, in light of the conflict of interest, the NACC Commissioner should have not only designated a delegate but removed himself from related decision-making processes and limited his exposure to the relevant factual information,” Furness said.
“This was not done.
“The NACC Commissioner’s involvement in the decision making was comprehensive,” Furness said.
“I concluded that the NACC Commissioner engaged in officer misconduct…being conduct that is not unlawful but arose from a mistake of law or fact”.
“The NACC Commissioner’s involvement in the decision making was comprehensive” — Gail Furness SC
In her report, Furness recommended the NACC “delegate” to an “appropriate person”, the decision of whether to investigate the six referrals from the Robodebt Royal Commission.
In its October 30 statement, the NACC said it: “will provide further information when the appointment of the independent eminent person has been finalised”.
(Furness makes no mention of an “independent” or “eminent” person in her report, only referring to an “appropriate” person.)
The NACC and Brereton have made no further public comment on the matter.
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