At the 2022 election “integrity” was a big-deal issue. Then after winning government, Labor ticked off a promise when it set up the National Anti-Corruption Commission (NACC), which began officially in July 2023.
By now the NACC should be a well-functioning, well-respected body, kicking goals, enjoying public trust.
But, in an extraordinary irony, the NACC has become best known for “own goals”, rocked by internal scandals and attracting a litany of complaints. This week things reached the point where its commissioner, Paul Brereton, announced his resignation – two years short of serving his five year term – declaring he had become “a distraction”.
A former New South Wales Supreme Court judge, Brereton came to the job with a formidable reputation, including having conducted the inquiry into allegations of Australian war crimes in Afghanistan. He looked an ideal candidate.
But at the commission he became embroiled in not just one, but two, conflict-of-interest issues.
In 2024 the Inspector of the NACC found he had committed “officer misconduct”, because he failed to adequately recuse himself when the commission was dealing with referrals from the Robodebt royal commission. Brereton had had a professional relationship (through his senior position in the Army Reserve) with one of those referred, Kathryn Campbell, a former senior public servant.
Mick Tsikas/AAP
Now another report from the Inspector of the NACC is soon to drop. It deals with Brereton’s undertaking consultancy work for the Inspector-General of the Australian Defence Force while in his NACC post.
“I think everyone contributes to their own downfall […] in some ways and I am sure I have contributed to this in some ways” Brereton told a Senate estimates hearing on Tuesday. The surprising thing is that Brereton, with his vast legal experience, could land himself in such obvious pitfalls.
But personal misjudgements have not been the only problems under Brereton’s leadership. Critics say the NACC doesn’t just need a new head – it needs a “reset”. They believe it has had too low a profile, and too few big hits.
It is also notoriously slow. For example, former Liberal senator Linda Reynolds in August 2023 referred to it the role of then attorney-general Mark Dreyfus in the payment that was provided to Brittany Higgins in the wake of her alleged rape in Parliament House. It took until June last year for the NACC to dismiss the matter.
At the Senate estimates hearing Greens senator Barbara Pocock said she had, on NACC’s first day, referred a matter relating to a consultancy firm, PWC. Nearly three years on, she had not been given any information about her complaint. When she confronted him, Brereton obfuscated, during an evidence session in which he did not disguise his displeasure at the questioning.
Pocock said later: “Australians’ faith in the NACC has been undermined by the slowness of progress on significant matters and the lack of communication about these matters and the general operation of the NACC has not helped.
“The Commissioner’s tone [at the hearing] was consistent on this in my view: his belittling of citizen’s complaints and his haughty response to concerns about conflicts of interest and untimely outcomes like the PWC matter. Time for a reset, that’s for sure.”
After the NACC declined to investigate any of the Robodebt referrals, there was an avalanche of complaints from the public. The commission, amid the conflict of interest issue, had to bring in an independent person to redo the work.
The NACC is overseen by a multi-party parliamentary committee, chaired by Labor with independent Helen Haines (who fought hard for an integrity body to be set up) as deputy chair. Its most recent report, tabled this month, is damning.
It said the NACC needed to reduce the backlog of referrals, explore ways to communicate more effectively with those making referrals, and focus on “building public trust in its systems and processes”. Given its concerns, the committee said, it had launched an inquiry into the NACC’s performance.
In a pointed message, the committee said “the NACC has a duty to adhere to the highest level of integrity, accountability, and performance to ensure that Australians have confidence” in it.
There’s now unease around the process for selecting the head of the NACC. Crossbench senator David Pocock said, “The appointment of the next commissioner must occur through an independent and merits-based process, that provides Australians with transparency”.
Mick Tsikas/AAP
Brereton’s appointment was on a recommendation to cabinet by Dreyfus, following advice from a selection panel. But there was an important check. The appointment had to be cleared by the parliamentary committee. That gave the opposition and crossbench a look in. The parliamentarians asked plenty of questions at the time, but they then unanimously approved Brereton.
Attorney-General Michelle Rowland told parliament on Wednesday, in reply to a question from crossbencher Sophie Scamps about the process for choosing Brereton’s successor, that there was already a merit-based process including advertising and a selection panel. But Haines says there should be more visibility at the start of the process, specifically that the membership of the selection panel should be public.
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While problems with the commissioner might, in retrospect, be put down to choosing someone who proved a poor fit, the problem with the excessive secrecy that characterises the NACC is a structural issue, and a difficult one to fix.
When the NACC was being set up there was a big debate about whether, or in what circumstances, it should have public hearings.
Government and opposition were united in wanting to keep things as private as possible.
The legislation provides for public hearings in “exceptional circumstances”. Government sources now claim this was not intended to mean no public hearings, as the commission appears to have taken it. To this point there has not been a single public hearing.
While it’s vital the NACC does not become a place for show trials, any serious “reset” would need to look again at this issue.
Haines says: “The clearest thing to do would be to amend the legislation to remove the exceptional circumstances test. At the very least, the commissioner should publish guidance about exceptional circumstances so the public has a better understanding of the factors considered for a public hearing”.
Whether things are loosened and some public hearings are encouraged will be a key test of how much of a “reset” the NACC will undergo.
