NACC boss “misled Dreyfus” over Robodebt

EXCLUSIVE

MICHELLE FAHY

ELIZABETH MINTER

The head of the National Anti-Corruption Commission Paul Brereton made misleading statements to Attorney-General Mark Dreyfus over his management of conflicts of interest regarding the Robodebt referrals.

A three-page official letter from the NACC Commissioner to the Attorney General, released by the NACC to The Klaxon, reveals that Brereton told Dreyfus he would “recuse” himself from decision-making in the matter.

In the letter Brereton tells Dreyfus — twice — that he told his senior NACC colleagues in a meeting on July 3 last year that should a matter affecting someone with whom he has had, or has, a close association come before the Commission, he would “recuse myself from decision making” and “allocate the matter to a Deputy Commissioner”.

In all, Brereton uses the word “recuse” four times in the letter.

Yet official minutes of that July 3 meeting – the first business day of the NACC – show Brereton told his colleagues only that he would “delegate decision making”.

“Brereton said one thing to his top NACC colleagues — and another to Dreyfus”

The word “recuse” does not appear in any of the documents the NACC released under Freedom of Information regarding Brereton and his conflict of interest, other than the August 11 letter to Dreyfus.

Meanwhile, the phrase “delegate decision making” does not appear in Brereton’s August 11 letter to Dreyfus, in which he declared “material personal interests”, as head of the NACC, as required by law.

Brereton’s August 11, 2023 letter to Dreyfus –”recuse” used four times.  Source: NACC. (Image top, Mark Dreyfus. Source: ABC News/Matt Roberts).

The documents show that Commissioner Brereton said one thing to his top NACC colleagues and another to Attorney General Dreyfus.

Brereton to Dreyfus on 11 August 2023:

— “As I declared at a meeting of the Statutory Officers of the Commission on 3 July 2023 … I would recuse myself from decision-making in respect of that matter, and allocate the matter to a Deputy Commissioner…”

— “As I also declared at the meeting [on July 3] … I would recuse myself from decision making concerning [redacted name] and allocate the matter to a Deputy Commissioner.”

Brereton at the 3 July 2023 meeting:

— PB raised a potential conflict of interest … As a result, he advised that he would delegate decision-making in such matters involving persons well-known to him to a Deputy Commissioner.

— PB advised that … he knows [redacted name] well. If [redacted name] is the subject of a referral, then he would not be involved in decision-making concerning [redacted name]”

(Bold emphasis The Klaxon).

The above extracts come from an NACC freedom of information release of documents to a prominent researcher and writer, who works as Jommy Tee, who had requested access to: “All documentation held by the NACC associated with the Commissioner and conflict of interest issues in relation to the Robodebt Royal Commission referral.”

A fuller version of the August 11 letter from Brereton to Dreyfus was later released separately to The Klaxon by the NACC (as shown above).

Minutes from the NACC “Statutory Officers Meeting” on July 3, 2023 are shown below. There is no mention of “recuse”.

Minutes from the July 3, 2023 NACC “Statutory Officers Meeting”. No mention of “recuse”. Source: FoI/NACC

As previously revealed, despite his declared conflict of interest, Brereton did not properly “recuse” himself from the decision-making process as to whether the NACC would investigate the six officials referred to it by the Robodebt Royal Commission.

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

The word “recuse” has a specific legal meaning, indicating a complete withdrawal from a matter by a judge.

Brereton did not recuse himself in this legal sense.

Both Dreyfus KC and Brereton SC are legal veterans.

Brereton has been “a solicitor, barrister, senior counsel, judge and judge of appeal of the Supreme Court of NSW”, says the NACC.

“Brereton has been a solicitor, barrister, senior counsel, judge and judge of appeal of the Supreme Court of NSW” – NACC

Dreyfus spent 20 years working as a barrister. He was appointed Queens Council in 1999 and “appeared in a number of landmark cases in the High Court”, says the Attorney General’s Department.

As previously reported, Brereton, through the military, has long-term close personal ties to Kathryn Campbell, the most senior public servant who oversaw Robodebt.

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 Robodebt Royal Commission found Campbell “had been responsible for a department that had established, implemented and maintained an unlawful program”.

In June, the NACC caused national shockwaves when it released a statement announcing it would not investigate the six officials referred to it by the Robodebt Royal Commission.

The announcement came almost a year after Robodebt Royal Commissioner Catherine Holmes SC referred the six officials to the NACC, including for civil and criminal prosecution.

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 identities of those officials were contained in a “sealed” chapter of Holmes’ report and have not been made public.

Holmes said the former Coalition government’s Robodebt debt-raising scheme was an “extraordinary saga” of “venality, incompetence and cowardice”.

“An extraordinary saga [of] venality, incompetence and cowardice” – Royal Commissioner Catherine Holmes SC on Robodebt

Her 990-page report was the culmination of hundreds of hours of evidence and almost a million documents.

Serious questions have emerged over Brereton’s ongoing involvement in the Robodebt referrals.

The Klaxon has already revealed that Brereton did not adhere to the NACC’s own conflict of interest guidelines; that the NACC only issued its Integrity Policy after receiving the Robodebt referrals and after Brereton had declared a potential conflict, more than two weeks after the NACC opened its doors; and that the official decision document stating the NACC would not investigate the Robodebt referrals was just two pages long. The NACC has refused to make this document public.

On Thursday we revealed the NACC is now claiming it can no longer answer media questions because of limited “resources”. In the same article we revealed Brereton has been paid almost $1 million as NACC head to date, including $73,226 for one month’s work before it commenced operations.

More from The Klaxon on the NACC & 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

Now, documents indicate the Commissioner made misleading statements to the Attorney General about how he would manage his conflict.

Former judge of appeal of the Victorian Supreme Court Stephen Charles KC, who has been provided with the documents, said that when a judge in court proceedings “recuses himself because of a conflict”, that judge “does not — must not — take any further part in the proceedings”.

“Otherwise, any decision by the court is likely to be stained by his involvement and set aside for the judge’s bias,” he said.

In his August 11 letter to Dreyfus, under the heading “Relationship with [redacted]” Brereton writes:

“In particular, as I also declared at the meeting of the Statutory Officers of the Commission on 3 July 2023 (prior to the publication of the report of the Robodebt Royal Commission report [sic]), [redacted] is one of those with whom I have had a close association [redacted] and if [redacted] were to the subject of a referral to the Commission, I would recuse myself from decision making concerning [redacted] and allocate the matter to a Deputy Commissioner”.

On June 6 this year, the NACC released its statement announcing it would not investigate the Robodebt referrals citing as one reason “the oppression involved in subjecting individuals to repeated investigations”. It said a specific corruption investigation into the matter “would not add value in the public interest”.

The NACC ended the statement as follows:

“In order to avoid any possible perception of a conflict of interest, the Commissioner delegated the decision in this matter to a Deputy Commissioner.

“The Commission will not be making further comment.”

The word “recuse” is not used in the statement.