Chapter 1: What led to Paul Brereton's resignation from the NACC?
Do you accept responsibility for not telling your Chief Executive Officer that you'd done 10 hours of work for Defence during work hours with the NAG? No, I... Do you accept responsibility for not telling your Chief Executive Officer about the fact that you had that ongoing role and you were doing the ongoing work for Defence? Because you didn't tell him either of those things, did you? No.
Do you accept responsibility for that?
No.
Paul Brereton, the outgoing head of Australia's National Anti-Corruption Commission, was grilled at Senate estimates this week. Brereton led the body tasked with investigating serious corruption in the Commonwealth public sector.
But his time as its first commissioner has ended in a crisis of confidence over robodebt, his ongoing defence links, and whether the watchdog properly managed conflicts of interest inside its own walls.
What lessons arise for the NAC from this Robodeck controversy?
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Chapter 2: What controversies surrounded the NACC and Robodebt?
The lesson from that was that it obviously would have been better had I had nothing to do with that matter at all from the outset.
Brereton says he's become a distraction from the Commission's work, but his resignation begs the question, do the NAC's problems end with him? I'm Will Ed Ali. You're listening to 7am. Today, independent journalist Nick Fyke on how Australia's anti-corruption watchdog ended up in crisis and whether it can recover. It's Friday, May 29th.
Nick, that was quite a showdown, I think you can say, between Paul Brereton and some senators in the Senate Estimates Inquiry. But before that, I want to go back to 2016 with the Brereton Inquiry into war crimes in Afghanistan, because that's intimately involved, isn't it? It is.
It's the start of a long story.
Chapter 3: How did Brereton's past roles contribute to conflicts of interest?
So the Commissioner of the NAC is Paul Brereton, and he was also conducting the Afghanistan War Crimes Inquiry, started in 2016, ran to 2020. That was for the Inspector General of the ADF. He produced the Brereton Report. He was also a Major General in the Army Reserve. He went on obviously to be appointed as the inaugural commissioner of the NAC.
And that relationship, his relationship with the ADF, was the foundation of a series of conflicts. And he had a professional association with some of the subjects that he was investigating at the NAC. But it turns out that it was not just an affiliation. He was doing ongoing consulting work with the Inspector General's office. And he also had a close association.
In fact, occasionally it was termed a personal association with Catherine Campbell, who was the subject of the Robodebt inquiry. She was one of the six who was referred to the NAC over Robodebt. So in multiple ways, the commissioner of the NAC was conflicted or there was a perceived conflict or conflict. the potential for a conflict in terms of his previous roles and his current role.
That's been the basis of so much controversy and I think is at the heart of his resignation this week.
So tell us about what we saw on Tuesday night in Senate Estimates.
So the background is that a few weeks ago, the Green Senator David Shoebridge moved a successful Senate motion. He directed Brereton and the three other NAC deputy commissioners to attend budget estimates this week to give evidence and to answer questions. On Monday, though, Brereton announced his resignation, taking effect on 6 July.
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Chapter 4: What happened during the Senate Estimates Inquiry with Brereton?
There's still speculation as to why he resigned, but the pressure was rising on a number of fronts, some of which we've discussed. And the Brereton had earlier told Parliament and the NAC had also said that he'd resigned his position before becoming the NAC Commissioner. But this wasn't true. As we've discussed, he was still commissioning.
And we know that Brereton was currently under investigation by the oversight. Gail Furness, she's the NAC Inspector, a kind of oversight role that she has. She had an investigation running. into his defence ties. And that was what primarily was the basis of a series of quite testy questions between Brereton and David Shoebridge and Senator Pocock also.
Commissioner, can you surely not see that Australians who watch this, the Commissioner of our highest integrity body, and your inability to take any responsibility at any turn To throw the CEO under the bus. To just constantly not be willing to. Well, earlier you said he has absolutely no right to know what you're doing in terms of the IGADF.
This is the CEO. I said it was relevant for the other statutory officers to know that I had an ongoing affiliation with the IGADF, which they knew.
Was there anything that stood out to you from those exchanges?
So after having heard from the Attorney-General's office, having heard from the NAC Commissioner, the NAC Deputy Commissioners, the NAC Inspector herself turns up, Gail Furness, and she reveals in something of a bombshell that she's undertaken another investigation.
So I received a complaint... I had the commissioner's response. I commenced an investigation.
This is a third investigation into a complaint about Brereton's conduct. We'd just sat through an hour and a half of Brereton and his fellow commissioners and the CEO fronting up to Senate estimates. They hadn't even mentioned this. Gail Furness gets up and the first thing she says is, oh, by the way, it only started last month. Yeah, exactly.
And are you able to recall when you first sent it to the commission for the response?
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Chapter 5: What investigations are currently ongoing regarding Brereton?
Do we know much about them? Can we separate what the three are about and whether or not they're related?
So the first one we already know about, that was the officer misconduct finding that was in relation to the Robodet findings. The second one is ongoing. It's into Brereton's defence ties. the things we've been talking about, how he handled or mishandled them. We don't know her conclusions. The third one, we literally don't know. We just learned about it last night.
It was only mentioned in the context of a complaint about Brereton's conduct.
Can you identify, did it relate to the Commissioner in any way?
As I've said, I commenced a complaint investigation into a complaint I'd received about the conduct of the Commissioner.
So let's talk about this concept of a conflict of interest here. If Brereton is connected with the ADF in some kind of formal way, and there have been photos circulating of him wearing army fatigues, for example, while he was commissioner, the conflict of interest there is what? That there might be some kind of corruption allegation that emerges from the Defence Force itself? And that if so, how?
how big a deal would that be? Could he not just recuse himself, for example, for those sorts of referrals?
So the problem is a perception one, primarily. It's that, as you said, he appears in uniform, that he has ongoing work with defence personnel.
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Chapter 6: What are the implications of Brereton's departure for the NACC?
Defence referrals, of which there have been many, we believe over 100 to the NAC, defence is potentially the NAC's biggest customer. allegations that have been made in relation to defence material, defence acquisitions, defence matters generally. We're talking about billion-dollar contracts here. Now, we have the head of the NAC who has since finally has recused himself from those referrals.
He's recused himself after having presided over them for two years, for more than two years. The question to me now is, what happens to all of those investigations that he presided over for two and a half years? Do they get revisited? Who do they get revisited by? Are they situations that were influenced by Brereton? Of course they would have been. He was the head of the commission.
So we have a genuine deep-seated problem here.
Does this take us in the direction of wondering why Brereton was appointed commissioner in the first place? Nothing to do with his ability, but just because of the situation that he was inevitably in?
I think there are serious problems about his original appointment and I don't think they've been adequately discussed. I know that several integrity experts in the legal field, for example, Jeffrey Watson SC, they believe that the commissioner of the NAC should never have been a defence figure. The military is a hierarchical organisation. It's generally secretive.
They don't deal well with transparency and accountability issues as a culture. And I think the method of appointing all of the commissioners and deputy commissioners in the first instance was problematic. The NAC had the run of the field when they opened this organisation. It was a brand-new integrity organisation. They could have had former judges, they could have had SCs.
They ended up with the least qualified combination of deputies permitted under the Act. It was almost like it was built to fail.
Coming up, does Brereton's resignation actually fix the NAC? You've identified the conflict of interest as a major issue and the way that appointments have been made to the NAC. Does Brereton's departure change any of that or fix any of those concerns?
I think potentially a lot will be changed by his departure. I think some of it depends on who they appoint next.
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Chapter 7: How can the NACC rebuild public trust after Brereton's exit?
I think the Albanese government has a poor track record when it comes to appointing commissioners. They need to appoint someone who is top draw, completely unimpeachable, has the best possible qualifications. They need a transparent, rigorous process. They'll need someone that the legal community gets behind, that transparency experts get behind, because
Brereton's left a serious mess at the NAC. It's not just the conflicts. This is an organisation with a serious deficit of public trust. There's the pile of defence investigations. There's only two deputy commissioners remaining. They have a track record of precisely zero major corruption findings. From 7,000 referrals...
With a staff of over 200 people, they have never made a major corruption finding.
Perhaps we should celebrate the fact we live in such a corruption-free country, Nick. I mean, that's another way to look at it.
Oh, isn't it great, Waleed?
Yeah, I can barely laugh about it at this point. You've mentioned some concerns with the appointments of commissioners and the way it was done. I suppose that raises the question of the design of the NAC at the beginning of the whole process. Do you see design flaws here that would need government or legislative intervention? Not that many, actually.
The main problem, I think, was the lack of public hearings. The NAC hasn't had any public hearings. It's only obliged to have them in exceptional circumstance. Apparently, we have never come across an exceptional circumstance that requires a public hearing yet. Otherwise, to me, it's actually, it was an issue of personnel and approach.
I think, apart from the lack of public hearings, I don't think the problem was a legislative one.
Well, you mentioned the privacy and secrecy element of it. As I recall, the argument for that was that the problem with...
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Chapter 8: What reforms are necessary for the future of the NACC?
Do you mean making it all public or do you think there is still some room for private hearings to take place?
An investigation has to jump over several hurdles to reach the level of a formal investigation. I don't think anyone is saying that all of their investigations should be secretive. I think the New South Wales ICAC is an excellent model. They have public hearings when they choose to, when they think it's appropriate. Most of their work is done behind the scenes.
Confidentiality is absolutely obligatory for an anti-corruption organisation. But once you reach a certain level where you know that there is a serious corruption matter to discuss, that it's a public matter, I think there have to be public hearings. With private investigations, all you end up with is an investigation report at the end of years of investigation.
You'll get one day of headlines, maybe you'll get two days of headlines, and then it will be gone again. We don't get an understanding of the depth of the corruption that has been investigated. Compare it to, for example, a royal commission like the Robodet Royal Commission. The only reason this became a public issue and became so widely known was because we watched the blow-by-blow
in public of Catherine Holmes's Royal Commission hearings. Now, we need the equivalent of that for the knack, I would say.
There'll be people in New South Wales who argue that, well, the problem you have with ICAC is it just swept everything up. So you end up with, you know, Barry O'Farrell resigning over a bottle of Grange, and that's the same situation as, you know, Eddie Obeid.
I've heard that argument, Waleed, but I would counter by saying that New South Wales ICAC is the most respected and admired anti-corruption organisation in the country. That actually should be the model according to public polling and according to what integrity experts say. I mean, we keep talking about the Grange bottle. That comes up a lot. No one was obliging him to resign over that.
That was his choice. And I think it's entirely reasonable that politicians occasionally take a fall for doing the wrong thing. Is that not a reasonable thing to expect about politicians, that they have integrity standards? As in, that was his choice. He wasn't obliged by the ICAC to resign because he'd received or mishandled a bottle of Grange. I think public scrutiny is really important.
So you've set out some things you would like to see by the way of reform, some criticisms you've made of the way the Albanese government has handled this. Are you optimistic at all that your vision will become reality?
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