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Anti-corruption watchdog commissioner’s future ‘untenable’ after ‘bias’ finding, David Pocock says

Senator doubles down on concerns about the new National Anti-Corruption Commission’s credibility and reputation

David Pocock has doubled down on concerns the position of the federal anti-corruption watchdog’s top investigator remains “untenable” after an independent report found its decision not to investigate robodebt referrals was affected by “apprehended bias”.

The independent ACT senator said Paul Brereton’s future at the National Anti-Corruption Commission as commissioner was at odds with needing to “preserve full public confidence in the Nacc”.

The fallout of the Nacc inspector’s report on the decision made in June has continued this week with integrity advocates raising questions about the new federal body’s credibility and reputation.

The robodebt royal commission referred six individuals to the Nacc for potential corrupt conduct in July 2023 but the anti-corruption body announced 11 months later it would not pursue any investigation into them, due to separate public service investigations being carried out into five of them.

Brereton declared a conflict of interest with one of the individuals who was “well known” to him and appointed a deputy commissioner as a delegate. In August Guardian Australia revealed the “close association” related to Brereton’s service in the army reserve.

The Nacc’s inspector, Gail Furness, found Brereton should have “removed himself from related decision-making processes and limited his exposure to the relevant factual information” but did not.

Brereton’s “involvement in the decision-making was comprehensive, before, during and after” a meeting on 19 October 2023 when the “substantive decision was made not to investigate the referrals”, Furness found.

The Nacc’s decision not to investigate the individuals is now being reconsidered but the body noted the report contained “no finding of intentional wrongdoing or other impropriety” while conceding the public’s disappointment in the original decision was “regrettable”.

Brereton has also accepted that it was a “mistake” to only make himself absent 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.

Minutes of the meeting on 19 October 2023, released as part of the inspector’s report, reveal Brereton believed there was “no value” in making any corrupt conduct findings about the referred individuals referred given the watchdog could not sanction or prosecute them further.

Brereton also conceded there was a “real possibility” the Nacc might come to different conclusions to the royal commission and that was “not in the public interest”.

In a decision notice by deputy commissioner, Nicole Rose, in April 2024, she said she was “satisfied the referrals raise a corruption issue” but would not proceed with an investigation because the conduct of the referred persons had already been “fully exposed” in the royal commission’s report, and there was a risk of “unfairness” for the referred individuals from being subject to multiple investigations.

The Nacc’s policy is to avoid duplicating investigations where another integrity agency has already undertaken that work. However, it also states it should keep an “open mind” and that “sometimes it will be in the public interest to proceed to investigation, in order to clear the air”.

The inspector’s report found that the Nacc’s media statement – which claimed the Australian Public Service Commission “had remedial powers and could impose a sanction in relation to the persons referred” – was “misleading”.

In September the APSC concluded 12 public servants, including former department heads Kathryn Campbell and Renée Leon, breached the workplace code of conduct 97 times during their involvement in the robodebt program.

The two former agency heads will not face sanctions as they no longer work for the public service but will have to declare the findings, if asked, for the next five years if they apply for public roles.

The Nacc committee’s deputy chair, Helen Haines, said she would “interrogate” important issues arising from the new body in upcoming hearings, including whether it is meeting expectations of the public and parliament.

Haines, who has advocated for a federal integrity body since being elected in 2019, said the Nacc should not be deterred from investigating corruption allegations even if a remedy is not possible.

“One of the key powers and purposes of the Nacc is to make findings of corrupt conduct; a finding of fact. This is very important in and of itself,” she told Guardian Australia.

“There is significant public value in shining a light on a finding of fact, even if a clear ‘remedy’ may not be possible. A finding of corrupt conduct holds weight. Importantly it builds public trust.”

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