“Recused” NACC boss Brereton at Robodebt meeting

EXCLUSIVE

MICHELLE FAHY

ELIZABETH MINTER

The move by National Anti-Corruption Commission boss Paul Brereton to delegate the final decision of whether to investigate Robodebt to a deputy was “pointless”, says a top former judge.

That’s because the subordinate given the task — whose name the NACC won’t disclose — “would have been well aware” of Commissioner Brereton’s close personal ties to the public servant at the heart of the Robodebt scandal, Kathryn Campbell.

It has also emerged how intimately Brereton was involved.

NACC meeting minutes, released under freedom of information, show he remained present throughout the majority of a senior assessment panel meeting that considered Robodebt, only leaving the room towards the end as the “decision” was made.

Former Supreme Court of Victoria Court of Appeal judge Stephen Charles KC said it would have been “unthinkable” for Brereton’s inferior to “do otherwise” than reject the Robodebt referrals.

“Commissioner Brereton’s statement that he would refer the final decision-making to [an] inferior was pointless because it would have been unthinkable for his inferior to do otherwise than refuse to accept the referrals,” Charles told The Klaxon.

“It would have been unthinkable for his inferior to do otherwise” — Stephen Charles KC

Under the previous Coalition Government, $1.7 billion in debts were unlawfully raised against over 500,000 social security recipients, with some taking their lives.

Last year’s Royal Commission report into the Robodebt scheme was scathing. The Royal Commissioner delayed her report specifically so she could make referrals directly to the NACC, which began operating on July 1 last year.

Commissioner Catherine Holmes SC referred six public servants, whose names have not been made public, for civil action and criminal prosecution.

She described the unlawful scheme as an “extraordinary saga” of “venality, incompetence and cowardice”.

“An extraordinary saga of venality, incompetence and cowardice” — Catherine Holmes SC

Brereton’s NACC caused shockwaves in June — almost a year later — when it announced it would not investigate the Royal Commission’s referrals.

At the same time, the NACC announced Brereton had “delegated” that significant decision — to a Deputy Commissioner — “to avoid any possible perception of a conflict of interest”.

The NACC has repeatedly refused to say who that Deputy Commissioner was or what “conflict” was involved.

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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

As previously reported, Brereton has long-standing, close personal ties to Kathryn Campbell, including through their time as senior officers together in the Australian Army Reserve, where both attained the rank of major general.

Charles — who was one of the highest-profile public advocates for a national integrity commission — said whoever the subordinate was that Brereton had delegated to, Brereton’s views would have been very clear to them.

“As revealed under the FOI documents, it is plain that Commissioner Brereton intended to take part in discussions of whether the NACC should receive and act on the Robodebt matters,” Charles told The Klaxon.

“In those documents, Commissioner Brereton has indicated that he intended to listen and take part in discussions on the question of whether the NACC should act on the referrals and that Commissioner Brereton would merely refer the ultimate question to one of his inferiors at the NACC.

“In those circumstances, his inferior would have been well aware of the reasons for the Commissioner’s conflict of interest and therefore of his disinclination to cause distress and embarrassment to his close friend Kathryn Campbell by acting on those referrals,” Charles said.

“His inferior would have been well aware…of (Brereton’s) disinclination to cause distress and embarrassment to his close friend Kathryn Campbell” — Stephen Charles KC

“Accordingly, his inferior – whoever that was – would have been well aware of the Commissioner’s view and of his disinclination to deal with Royal Commissioner Holmes’s referrals.”

As secretary of the Department of Human Services, Campbell was the most senior public servant who oversaw Robodebt.

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

Campbell “did nothing of substance” when exposed to information about the illegality of the program, she gave the federal cabinet misleading advice about Robodebt at a 2015 Expenditure Review Committee, and instructed her staff to “cease” processing a request for legal advice from the Commonwealth Ombudsman because she was concerned the unlawfulness of the scheme might be exposed.

More from The Klaxon  on NACC & Robodebt:

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”

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

NACC Senior Assessment Panel decision

As previously revealed, Brereton disclosed a “potential conflict” in connection to Robodebt on the NACC’s first business day of operations, July 3 last year. 

Internal documents show he repeatedly used the word “recuse” to describe his actions regarding the NACC investigating the Robodebt referrals. 

Yet, as previously reported, Brereton remained involved in the Robodebt discussions, failed to recuse himself in the legal sense of the word — and failed to adhere to the NACC’s own Integrity Policy over his Robodebt conflict. 

Now, more documents reveal just how intimately involved Brereton was.

Brereton said in an official speech last month that the “decision making process on referrals” was “ultimately made” by the NACC’s “Senior Assessment Panel”.

Brereton oversees the panel and is “advised by the three Deputy Commissioners, and the heads of our legal, operational, capabilities and evaluation branches”, he said.

Before matters reach the Senior Assessment Panel for the ultimate decision on whether they will be investigated, they are “triaged” and “assessed”, Brereton said.

They are “triaged” to see whether the matter both involves a Commonwealth Public Official and “raises a corruption issue” (about 90% of referrals to date have been excluded by this stage, Brereton said); and “assessed”, to determine whether the matter “could be serious or systemic”.

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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

In Canberra, on October 19 last year, Brereton chaired a meeting of the NACC Senior Assessment Panel.

After it was opened by Brereton, the matter of conflicts of interest was discussed, minutes of the meeting show.

“Commissioner the Hon Paul Brereton notified the Panel of a previously disclosed conflict relating to [redacted name],” the meeting minutes state.

“The Commissioner stated that he would not be the decision maker for the matters”, but that “he would make comments as the matter was discussed”.

The minutes state this was “NOTED by the Panel” (emphasis the NACC Panel).

The following four and three-quarter pages of the minutes — much of the remaining document — are dedicated to Robodebt.

The content of that Robodebt discussion has been redacted entirely, but it begins: “Assessments — Cases for Decision…ROBODEBT”.

Four full pages of minutes pass (all completely redacted) before it is stated: “The Commissioner excused himself from the meeting.”

Just three-quarters of a page later it states: “The Commissioner rejoined the meeting.”

The NACC said earlier this month: “At the senior assessment panel meeting on 19 October 2023, the commissioner contributed to the initial discussion of some of the issues, and then left the meeting when the time came to consider the decision to be made.”

It continued: “The commissioner was not present when the decision was made.”

What exactly “the decision” was — that is, whether it related to one, several or all six of the people referred by the Royal Commission — is unknown.

The NACC told The Klaxon the “final decision” on whether to investigate the Robodebt referrals was made on April 16 this year. (As previously revealed, that document was just two pages long).

“The delegated Deputy Commissioner made the final decision on 16 April 2024. The final decision document is dated 16 April 2024 and comprises 2 pages,” the NACC said.