An official at the National Anti-Corruption Commission was offered a bribe but its boss Paul Brereton took no action because he considered it doubtful the person “was aware of the NACC officer’s position”.
The explosive revelations are included in an excoriating new report by NACC Inspector Gail Furness SC, who just two weeks ago found Brereton engaged in “officer misconduct” over Robodebt referrals.
In her annual report, Furness, who is responsible for weeding out corruption inside the NACC itself has “identified systemic issues” — well beyond Robodebt — within the deeply embattled agency.
Furness has found the NACC has no appropriate “record/case management system” in place; no “pathway” for handling “more complex referrals”; and a failure to have “Intake and Triage officers with the appropriate skills and training required”.
In the annual report, for the year to June 30 — the NACC’s first year of operations — found the integrity body had on falsely told people lodging concerns it had no “jurisdiction”, until Furness intervened.
In one case, the NACC told a person there matter involved “no corruption issues” — a finding the NACC upheld after a “review” — only to have Furness find the matter contained two separate corruption matters.
The report also contains the remarkable revelations that Brereton, as required by law, made two “mandatory referrals” to Furness regarding “corruption issues” within the NACC — including an “official” being offered a “secret commission”, or bribe.
Brereton would take no action.
“The first referral concerned a person who made an offer to pay a staff member of the NACC what might be considered a secret commission,” Furness writes.
She said she “inquired of the Commissioner (Brereton)” what “action the Commission proposed to take in relation to the matter”.
Brereton responded that he would take no further action.
He said was doubtful the person offering the bribe was “aware of the NACC officer’s position”.
“In any event”, Brereton said, the person “does not appear” to “have suggested that the NACC officer take any action in his capacity as such”.
Furness writes: “Having obtained further information, the Commissioner (Brereton) informed the Inspector (Furness) his view, that it is doubtful that the person ‘was aware of the NACC officer’s position and in any event, does not appear to have suggested that the NACC officer take any action in his capacity as such, and that the NACC officer acted appropriately in response to the approach made to him, I do not propose to take any further action in relation to the matter’.”
Gail Furness SC. Source: NACC Inspector
Under the NACC Act, Brereton is legally required to report to Inspector Furness any “NACC corruption issues” he becomes aware of.
“NACC corruption issues” are those within or involving NACC itself.
“Once it has been referred, the Inspector decides whether the issue meets the serious or systemic threshold to warrant investigation,” Furness writes.
It is the role of the NACC Inspector, who is “independent from the Australian Government and the NACC”, to “conduct investigations into NACC corruption issues that could involve corrupt conduct that is serious or systemic”.
Further, Furness’ response as to whether she will investigate the “secret commission”, or bribe, matter appears to raise some serious questions.
“Furness’ response appears to raise some serious questions”
Regarding whether she would investigate, Furness writes only: “The Inspector formed the view that no statutory action was warranted by her under s210(6)”.
Yet s201(6) of the NACC Act states: “The Inspector may decide to take no action in relation to a NACC corruption issue”.
The NACC Act further states (s201(7)): “The Inspector does not have a duty to consider whether to deal with a NACC corruption issue under this section, whether the Inspector is requested to do so by the person who referred the issue or by any other person, or in any other circumstances”.
Furness states she “formed the view that no statutory action was warranted by her under s210(6)”.
Yet no “statutory action” is warranted “under s210(6)” — because it explicitly, and only, states: “The Inspector may decide to take no action in relation to a NACC corruption issue”.
The second “mandatory referral” of a “corruption issue” referred to Furness by Brereton is potentially even more serious — and Furness is even more vague.
No details at of the matter are given at all.
Furness provides just three sentences:
“There were discussions between the Inspector (Furness) and the Commissioner (Brereton) as to how best deal with the second NACC corruption issue referred to the Inspector by the Commissioner,” Furness writes.
“Options included for the Inspector (sic) refer the issue to the Commission (NACC) for investigation under s210(1)(c), conduct a joint investigation between the inspector and the Commission, or referral to the Australian Federal Police.
“Ultimately the Commission decided to deal with the matter as a corruption issue”.
“Ultimately the Commission decided to deal with the matter as a corruption issue” — Gail Furness
Yet Furness fails to mention s210(1)(a), which is that she can deal with a NACC corruption issue “by investigating the NACC corruption issue” herself.
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Furness fails to mention that she can investigate the matter herself (highlighted above). Source: AUSTLII
Furness makes no mention of why it was “ultimately the Commission” (the NACC) that “decided” to “deal with the matter”.
Section 210 of the NACC Act cites the Inspector can “deal with a NACC corruption issue in any one or more of the following ways” and lists four options.
The third, s210(1)(c), which Furness mentions, says she can deal with a NACC corruption issue by “referring, for investigation, the NACC corruption issue to the NACC” — but only if she “is satisfied that it is appropriate for the NACC to investigate the issue”.
Furness makes no mention of which of the four ways — if any — she adopted in dealing with the “corruption issue”.
She also makes no mention of whether she is “satisfied that it is appropriate for the NACC to investigate the issue”.
More from The Klaxon on the NACC & Robodebt:
13 Nov – Integrity boss Brereton caught lying about own misconduct
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
The annual report was completed on October 30 – the same day that Furness released her findings on the NACC’s refusal to investigate over Robodebt, and that Brereton’s NACC released its responses — but was released publicly on Thursday.
In her October 30 report, Furness found Brereton had engaged in “officer misconduct” — equivalent to “agency maladministration” — over his failure to recuse himself over the decision of whether to investigate over Robodebt.
In June the NACC shocked the nation when it announced it would not investigate any of the six public officials referred to it for criminal and civil action by the Robodebt Royal Commission 11 months earlier.
The following week Furness announced she had received almost 900 complaints and would take action.
Furness subsequently (after the annual report’s June 30 reporting period) made the decision to “investigate”, culminating in her report two weeks ago.
“Robodebt accounted for 96% of complaints about the NACC”
In her annual report Furness said that by June 30 she had received 1,164 “specific complaints” about the NACC’s failure to investigate the Robodebt referrals.
That represented 96% of complaints.
(In the year to June 30 Furness received “over 1300 contacts”, of which 1,214 were complaints — 1164 on Robodebt and 50 on other matters).
Damning new findings
The NACC Inspector’s annual report states that beyond the 1,164 Robodebt complaints, there were two complaints Furness considered “could, if established, amount to maladministration”.
(The Robodebt referrals matter was “officer misconduct”, equivalent to “agency maladministration”).
In one of the cases the NACC told a person the corruption issue they raised, which was related to a Federal Family Court public official, was “not within jurisdiction” because it also involved a state government department. The person sought the NACC conduct a review and the NACC “confirmed” its “first decision”.
Furness writes that she “advised” Brereton that “it seemed likely” that “family court” was a reference to a “Commonwealth” (and so Federal) public official, and so not outside the NACC’s jurisdiction.
“The Commissioner (Brereton) agreed with (my) assessment that the referral was within jurisdiction,” Furness writes.
“(Brereton) noted that ‘some errors of this kind are inevitable at triage’.”
Furness writes: “(Brereton) informed (me) that he was instituting a procedure to ensure that review decisions are subject to legal review”.
The statement suggests a lawyer was not involved in either the first decision, or the subsequent NACC “review” of the decision.
Furness said that “in the circumstances” she did not consider the “error of law” by the NACC “amounted to maladministration” and that she “noted the Commissioner (Brereton) was changing the NACC’s processes”.
Paul Brereton. Source: NACC
The second case involved the NACC refusing to investigate a referral, claiming it was “not able to identify a corruption issue”.
Furness said there were in fact “two identified corruption issues”.
“After (my) requests for information, the Commissioner (Brereton) conducted a more detailed assessment than had been done initially,” Furness writes.
“(Brereton) agreed, albeit on a slightly different basis, that there were 2 identified corruption issues in the referral,” Furness writes.
“(Brereton) agreed…that there were 2 identified corruption issues in the referral” — Gail Furness
Furness writes: “The Inspector (Furness) identified systemic issues arising from the inadequate and flawed handling of the referral by the Commission.
“The Commissioner (Brereton) did not take issue with that description”.
“(Brereton) did not take issue with that description” — Furness
Furness listed four “systemic” problems the case uncovered, including that there was a “need for an accurate, comprehensive, accessible, electronic and customised record/case management system”.
Brereton “agreed”. He said the “NACC’s case management system was being ‘continuously improved’.
“The Commissioner (Brereton) agreed with (my) observation than the Commission needs to have Intake and Triage officers with the appropriate with the appropriate skills and training,” writes Furness.
Citing the fact the complaint “was assessed in the early days of the Commission’s operations” and Brereton’s response, Furness said she had “formed the view” that the NACC’s handling of the complaint “did not amount to agency maladministration”.
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
Of the 50 non-Robodebt complaints, 42 “primarily concerned” decisions by the NACC “not to investigate”.
“One complaint about the Commissioner’s (Brereton’s) decision not to investigate warrants mentioning”, writes Furness.
A person made a referral to the NACC about two “land councils” in Queensland. The NACC “replied to him stating that land councils were not within its jurisdiction”.
The man told the NACC its website “stated that its jurisdiction covered land councils”.
The man requested the NACC review its initial finding. The NACC’s “review” determined that its “previous assessment was correct”.
The man contacted Furness’s office, which looked up the relevant law.
“It was clear that some land councils did fall within NACC’s jurisdiction, but not all,” Furness writes.
“(Brereton) advised that the Commission would amend its website” — Gail Furness
“The Commissioner (Brereton)…advised that the Commission would amend its website to clarify which land councils are within jurisdiction,” Furness writes.
“(Brereton) also stated a further internal review was being undertaken after further representation by the complainant”.
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