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

Appreciate our quality journalism? Please support us here for as little as $10 a month

ANTHONY KLAN

Attorney-General Mark Dreyfus used fudged data to justify implementing the almost entirely secret National Anti-Corruption Commission, which vastly understated the level of NSW anti-corruption hearings held in public.

After the Albanese Government installed a highly opaque NACC shortly after winning power, it justified the move by stating the NSW Independent Commission Against Corruption (ICAC) held only “3.5 per cent of all hearings” in public.

In fact, around 50 per cent of ICAC hearings are held in public — over 14 times more.

For the 2020-21 year, which the 3.5 per cent figure was base on, Dreyfus’ office has confirmed the number of NSW ICAC hearing days held in public versus private was actually “49 per cent”.

The figures were fudged by using the “number” of hearings held in public, rather than the amount, or number of days hearings were held in public versus private.

That fudge was then supercharged by including ICAC’s “compulsory examinations” of individual witnesses — generally held in private by ICAC ahead of public hearings — and giving them equal weight to full public hearings, which often run for many weeks or months.

The move is particularly egregious because ICAC’s “compulsory examinations” are usually only “private” until the subsequent public hearing — when transcripts of those examinations then become public.

“The move is particularly egregious because ICAC’s ‘compulsory examinations’ are usually only ‘private’ until the subsequent public hearing”

On Thursday the NACC announced the shock move that it would not investigate six unnamed public officials referred to it — almost a year ago — by the Robodebt Royal Commission.

Despite being referred the information by robodebt royal commissioner Catherine Holmes SC in July last year, the NACC has announced it will not investigate because the conduct of the six officials “has already been fully explored by the Robodebt Royal Commission”.

That was also despite Holmes last year requesting, and being granted, a one-week extension to the Robodebt inquiry, which had been due to report on June 30, specifically so that it could make referrals directly to the NACC, which began operations on July 1,

Appreciate our quality journalism? Please support us here for as little as $10 a month

Holmes heard from over 100 witnesses during the Robodebt Royal Commission. Source: ABC News/Stephen Cavenagh

The Albanese Government came to power in May 2022 on a platform of transparency, accountability and creating a federal anti-corruption body “with teeth”.

In late September that year Dreyfus tabled legislation for the NACC, but the government drew deep public criticism because the version it had created would operate in secret, except in undefined “exceptional circumstances”.

In response Dreyfus claimed that only around 5 per cent of the NSW ICAC’s hearings were in public.

Among those highly critical of the secretive model was NSW ICAC Commissioner John Hatzistergos, who hit back at the claims from Dreyfus.

Hatzistergos told a parliamentary inquiry the figure was far higher, with “just over 40 per cent” of ICAC’s hearings conducted in public in 2020-21.

The Klaxon put the matter to Dreyfus, with the responses now being reported here.

Dreyfus did not respond directly to our questions, but via an unnamed “spokesperson” at his Attorney-General’s Department.

“The ICAC Annual report for 2020-21 indicates that ICAC held 85 compulsory examinations (referred to in the NACC Bill as private hearings) so a total of 88 hearings all up. On this basis, 3.5% of all hearings were held in public. The figures for the previous financial year are similar,” said the official statement. (Emphasis the Attorney-General Department).

The response continued:

“Commissioner Hatzistergos seems to have been referring to the number of hearing days held in private vs public – noting that a single hearing can go for many days. For 2020-21 there were: 72 private hearings days and 68 public days — a total of 140. So, 49% of all hearing days were held in public”. (Emphasis the Attorney-General Department).

Mark Dreyfus used deeply fudged figures to justify installing a secretive anti-corruption commission. Source: ABC News/Matt Roberts

Facing widespread criticism, the Federal Government suggested it had implemented the opaque NACC to gain the support of Peter Dutton’s Coalition Opposition, which it argued could reverse legislation they disliked if they won the next federal election.

That was despite the ALP having won with a strong majority; overwhelming public support for a strong anti-corruption body; the next election then being three years away — and the fact that any legislation can always be potentially repealed by a future government.

Between 2012 and 2022 Australia fell faster towards corruption than any other OECD nation except for Hungary, with which we tied, according to Transparency International.

A key reason cited by Transparency International was Australia’s failure to implement a functional federal anti-corruption body. Coalition Prime Minister Scott Morrison repeatedly promised to implement a federal anti-corruption body but later refused to do so.

The NACC commenced operations on July 1 last year, with a budget of $262 million over its first four years.

Among the many experts to raise concerns over the ALP’s NACC was chairman of the Centre for Public Integrity, former judge Anthony Whealy KC.

Whealy said “exceptional circumstances” was “too high a threshold” for public hearings and “will lead to corruption being hidden behind closed doors”.

“Victoria is the only state integrity commission that has the exceptional circumstances test, and it inhibits its ability to expose corruption,” he said.

Days before tabling the NACC legislation in parliament in late September 2022, Dreyfus announced public hearings would only be held in “exceptional circumstances”.

“We think public hearings should be exceptional, and we think that the commission should be required to determine that it is in the public interests that a hearing be in public,” Dreyfus said.

“(Public hearings) raise questions about reputational harm, which are not faced when you hold private hearings”.

BEFORE YOU GO: As you can see from the above, truly independent, quality journalism is vital to our democracy, please SUPPORT US HERE for as little as $10 a month.