Warnings about the National Anti-Corruption Commission’s (NAAC) ineffectiveness were there from the start.
The law that brought it into existence, for instance, limits public hearings to “exceptional circumstances” — a reminder that the authorities are not exactly happy for the public to find out how power functions.
Then came its first major decision on June 6 into the disastrous “Robodebt” scheme.
What would NAAC, charged with enhancing the “integrity in the Commonwealth public sector by deterring, detecting and preventing corrupt conduct involving Commonwealth public officials” do about referrals concerning six public officials from the Royal Commission into the Robodebt Scheme?
The automated debt assessment and recovery program had, after all, been responsible for using, in the words of Commission report, “patently unreliable methodology as income averaging, without other evidence, to determine entitlement to benefit”.
From its inception as a pilot program in 2015, until its closure in May 2020, a reign of bureaucratic terror was inflicted on vulnerable people.
The answer from the newly minted body was one of stern indifference.
While the NACC was aware of the impact of the scheme “on individuals and the public, the seniority of the officials involved, and the need to ensure that any corruption issue is fully investigated”, it felt that “the conduct of the six public officials in connection with the Robodebt Scheme has already been fully explored by the Robodebt Royal Commission and extensively discussed in its final report”.
In other words, there would be no consequences for the individuals in question, no public exposure of their misdeeds and no sense of satisfaction for victims of the scheme that their harms had been truly redressed.
In refusing to act on the referrals, the NACC had, in the words of former NSW Supreme Court Judge Anthony Whealy KC, now chair for the Centre for Public Integrity, “betrayed a core obligation and failed to fulfil its primary duty”.
An absurd spectacle ensued. After receiving 900 complaints about the NACC’s own alleged corrupt conduct, NACC inspector Gail Furness found herself being called upon to investigate the very entity that had been created to expose maladministration and corrupt conduct.
In the mess of not pursuing the Robodebt officials, it transpired that Commissioner Paul Brereton had delegated, rather than recused himself, from the process given a conflict of interest.
By delegating the final decision to a Deputy Commissioner, however, Brereton had not entirely precluded his part in the drama.
Far from being effective, the body is intended to be impotent.
Two recent incidents confirm how the NACC is intended to (mal)function — at least in the eyes of Canberra’s political establishment.
The first came in the defeated efforts of Senators David Pocock and Jacqui Lambie to introduce an amendment directing the NACC Commissioner to hold public hearings if “satisfied that it is in the public interest to do so”.
As Pocock explained to the Senate, the committee process into examining the NACC Act revealed “evidence from commissioners from state integrity commissions that … there should be a presumption towards having public hearings.”
The current law, as shaped by Labor and the Coalition, was designed “in a way that we have no real oversight of what is happening in the NACC”.
That is exactly how that same unholy alliance hoped matters would remain, with Labor and the Liberal-Nationals voting down Pocock’s amendment.
In justifying that craven move, Murray Watt, Labor Senator and Minister for Employment and Workplace relations, said that the “appropriate balance” between holding public hearings and considering whether they might “prejudice criminal prosecution, reputations, safety, privacy, wellbeing or confidentiality” had been struck.
Anyone observing politics will be mindful that any balance between public interests and exceptional circumstances will always favour the pathway of least transparency. In Australia, public interest tests are almost always read down, to favour opacity over openness.
The second matter concerned revelations by the NACC about certain operational details regarding Operation Bannister — the investigation into whether a Home Affairs employee’s “familial links” to contracted service provider and Paladin founder Craig Thrupp had led to corruption.
Paladin Holdings has handsomely profited from the Australian taxpayer, raking in over half a billion dollars to manage the brutal Manus Island detention centre between 2017 and 2019.
The senior executive in question, pseudonymised as Anne Brown, received $194,701.10 from Paladin for “management and consulting services” in 2017.
The money was transferred to her home loan account to assist full repayment, although she denied undertaking any work for Paladin or assisting it with the tender to Home Affairs in securing the contract.
Brown’s partner, a retired Home Affairs Department executive pseudonymised as Carl Delaney, directly aided Paladin in securing the lucrative tender.
He joined Paladin’s board of directors in 2019 and was remunerated the sum of $5000 for his efforts.
Thrupp also purchased another apartment for Brown and Delaney in the same complex worth $920,000, along with accompanying furniture. Two months later, it was rented back to Paladin for $1000 per week, though eventually sold in 2020, with Brown and Delaney pocketing the proceeds.
The question being investigated was whether the failure by Brown to disclose the aforementioned events (she thought she had no obligation to do so from April 2018 when she was on long-service leave pending retirement) had affected her suitability to hold a security clearance.
These included the evolving nature of her relationship with Delaney and the money and property lavished on them from Thrupp.
Even Commissioner Brereton acknowledged that “she should have at least known that at least her relationship with Delaney ought to have been reported” although, inexplicably, he thought the non-disclosure “understandable” and not driven by dishonesty or corruption.
The investigation had initially begun as a joint one by the Australian Commission into Law Enforcement Integrity and the Department of Home Affairs.
It then fell to the NACC from July 1, 2023 to finalise matters. Commissioner Brereton’s report was released on October 9.
The allegation that Brown had abused her office as a Home Affairs employee “to dishonestly obtain a benefit for herself or to assist Paladin to secure the garrison services contract is unsubstantiated”. She had not failed to disclose a potential conflict of interest between herself and Thrupp (“a close relative”) and her partner Delaney in their links to Paladin “in accordance with Home Affairs procedures”.
The report did not find Brown’s failure to report the “change of her circumstances to Home Affairs and AGSVA [Australian Government Security Vetting Agency]” remarkable, as it “does not appear to have been intentional”.
Failure to do so was insufficient to “bring it to the notice of the head of the relevant agency.”
For a body that offered so much promise, the NACC has failed to impress. Instead of restoring trust in the public service and politics, it has shown its lack of appetite in pursuing its broader remit, preferring a stymying caution. The status quo remains, distinctly, intact.
[Binoy Kampmark currently lectures at RMIT University.]