The National Anti-Corruption Commission will reconsider its decision not to start a corruption investigation into robodebt, after a finding its initial refusal was “affected by apprehended bias”.
On Wednesday the Nacc inspector, Gail Furness, released a report finding that the Nacc commissioner, Paul Brereton, should have “removed himself from related decision-making processes and limited his exposure to the relevant factual information”.
“This was not done.”
Brereton had appointed a delegate to decide on the robodebt referrals due to a perceived conflict of interest, which he did declare. The Nacc noted the report contained “no finding of intentional wrongdoing or other impropriety” while conceding the public’s disappointment in the decision was “regrettable”.
In June 2024 the Nacc declared it would not pursue an investigation into six individuals referred by the robodebt royal commission, due to separate public service investigations being carried out into five of them.
Brereton had delegated the decision not to pursue an investigation into robodebt to a deputy commissioner “to avoid any possible perception of a conflict of interest”. In August Guardian Australia revealed this was due to a “close association” relating to Brereton’s service in the army reserve.
But Furness found that Brereton’s “involvement in the decision-making was comprehensive, before, during and after the 19 October, 2023 meeting at which the substantive decision was made not to investigate the referrals”.
“The Nacc commissioner contributed to the discussion at that meeting, settled the minutes of that meeting and was involved in formulating the reasons for decision and also the terms of the media statement.
“I concluded that a third-party, fair-minded observer might reasonably apprehend that the Nacc commissioner’s involvement might have impinged on the impartiality of the decision-making of the delegated deputy commissioner.
“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.”
Brereton has accepted that it was a “mistake” to absent himself from the meeting only at the point a decision was made on robodebt. “Mistakes are always regrettable, but the most important thing is that they be put right,” he said.
Furness recommended the Nacc revisit the controversial decision, which had already been the subject of 900 complaints when she promised in June to inquire into the matter.
Following the inspector’s recommendation, the Nacc will now appoint an “independent eminent person” to deliberate afresh on a possible corruption investigation into robodebt. Guardian Australia understands the six individuals have been notified.
According to a statement by the Nacc, the inspector provided it “an opinion of a retired judge who found there had been a mistake of law or fact in the process by which its original decision was made”.
“The mistake involved a misapprehension by the commissioner [Paul Brereton] of the extent to which a perceived conflict of interest required him to be isolated from the decision-making process.
“The opinion was to the effect that the commissioner’s participation in some parts of the process meant the decision was affected by apprehended bias.”
But the Nacc said in a statement that “apprehended bias” – that a reasonable observer might think that the commission’s decision might not be impartial – “contains no suggestion of actual bias and no finding of intentional wrongdoing or other impropriety”.
“It expressly makes no criticism of the deputy commissioner who made the decision under delegation.”
In its submission to the inspector, the Nacc acknowledged its decision not to investigate the referrals would disappoint members of the public but was “not a breach of public trust”.
“Many Australians felt disappointed by [the Nacc’s] choice, understandably given the angst and harm caused by the Robodebt Scheme to vulnerable Australians,” it said.
“The decision was not taken lightly, but was considered, principled and ultimately made in what it considered to be the public interest based on the information available at the time.
“Public disappointment in a decision of the commission, whilst regrettable, is also sometimes inevitable, but is not a breach of public trust.”
Furness also found that the Nacc’s media statement was “misleading” because it claimed the Australian Public Service Commission “had remedial powers and could impose a sanction in relation to the persons referred”.
“In fact, it could not because five of the referred persons were no longer public servants and the sixth never was a public servant and the APSC could only impose a sanction on current public servants.”
The attorney general, Mark Dreyfus, noted the report on Wednesday but declined to make comment on whether he still had confidence in Brereton or whether there would be any consequences after the finding.
“The government will continue to support the Nacc as it undertakes its important work to deter, detect and prevent corrupt conduct across the commonwealth public sector,” he said in a statement.
In her June 2023 report the robodebt royal commissioner, Catherine Holmes, described robodebt as “neither fair nor legal”, referring individuals to agencies for civil and criminal actions for the “costly failure of public administration” in a sealed chapter.
A spokesperson for the attorney general said it was “giving consideration to questions relating to the release of the confidential chapter.”
In September the Australian Public Service Commission concluded that 12 public servants, including former department heads Kathryn Campbell and Renée Leon, breached the code of conduct 97 times during their involvement in the robodebt program.
In the same month lawyers of the victims of the robodebt scandal launched a bid to appeal against the $1.8bn settlement with the commonwealth on the basis of “damning new evidence” and claims senior public servants who administered the scheme engaged in “misfeasance in public office”.
