NACC's Robodebt conflicts of interest extend beyond Brereton

Corruption watchdog has confirmed it has documents regarding additional conflicts amongst its leadership team around Robodebt, but it refuses to release them

The conflicts of interest at the top of the National Anti-Corruption Commission over the Robodebt referrals extend beyond its boss Paul Brereton.

The NACC has confirmed it has a series of documents regarding senior officials with conflicts, in addition to Commissioner Brereton, but it is refusing to release them.

One of the documents reveals information about an “association” between senior NACC staff and one of the Robodebt Six. However, the release of such information would “cause distress to the persons concerned”, the NACC said.

Commissioner Paul Brereton with the NACC’s three current deputy commissioners (top to bottom): Kylie Kilgour; Ben Gauntlett; Nicole Rose

News of the documents emerged in response to a freedom of information request lodged by the independent researcher and writer who works as Jommy Tee.

The NACC is refusing to release even redacted versions of the documents because it says doing so would identify which Deputy Commissioner made the decision not to investigate the six public officials referred to it by the Robodebt Royal Commissioner.

Identifying which Deputy Commissioner was the decision-maker would put them at risk of “harassment and threats”. This would so “burden” the NACC that it could harm its “core operations”, the NACC claims.

Yet if Commissioner Brereton had not had to delegate the Robodebt decision to a Deputy Commissioner due to his own conflict of interest, his name as the Robodebt decision-maker would be known.

“Revealing the identity of the decision maker … would likely place them at risk of being targeted, and potentially subject them to abuse, harassment and threats” – NACC

The NACC gives two reasons for claiming that the risk of threats and harassment would adversely affect the commission’s ability to carry out its statutory functions:

1. It could “adversely affect the ability” of the Deputy Commissioner to “efficiently carry out their duties and responsibilities”

2. The NACC would have to undertake “safeguarding work to counter security and safety risks associated with the identity of this staff member being disclosed”.

The Deputy Commissioners are each paid $612,980 a year, marginally less than the base pay of the chief justice of the High Court ($624,880). Commissioner Brereton is paid $728,900.

In his FoI request, Tee asked for: “All documentation held by the NACC associated with any Deputy Commissioner and/or senior leadership team member [CEO and General Managers] and conflict of interest issues in relation to the Robodebt Royal Commission referral.”

In its response, issued last month, a NACC FoI officer said five relevant documents had been identified, but none would be released, nor even parts of any of the documents.

The officer said the documents contained personal information about senior NACC staff “in the context of actual or potential conflicts of interest and the Robodebt referrals”.

“Disclosure of the identities of one or more Senior Commission Staff who may have had an actual or perceived conflict of interest in relation to the Robodebt referrals would enable third parties to identify, based on the information already publicly available, the Deputy Commissioner who was the decision maker in respect of the referrals,” writes the NACC officer.

“Revealing the identity of the decision maker … would likely place them at risk of being targeted, and potentially subject them to abuse, harassment and threats.”

Under Robodebt, run by the former federal Coalition Government, $1.7 billion in debts were unlawfully raised against more than 500,000 social security recipients, with some taking their lives.

What is being withheld?

The five documents identified by the NACC officer are described as:

— Three versions of the minutes of a meeting on 3 July 2023 

— Correspondence dated 7 August 2023  

— A Conflict of Interest Declaration dated 31 October 2023  

Schedule of the documents the NACC refused to release. Source: NACC

Monday 3 July was the first business day of the NACC’s operations. A meeting was held of the Statutory Officers — Justice Brereton; Deputy Commissioners Ben Gauntlett and Nicole Rose; acting Deputy Commissioner Jaala Hinchcliffe; and CEO Philip Reed.

Among the documents released under an earlier freedom of information (FoI) request by Tee were three versions of the minutes of that 3 July meeting — two drafts and a final version.

It is likely that the new FoI’s three versions of ‘minutes of a meeting on 3 July’ are for the same meeting. If so, they are minutes that the NACC was previously willing to release in redacted form.

The earlier FoI revealed that Commissioner Brereton advised colleagues at that meeting that he had a potential conflict of interest regarding one of the Robodebt referrals.

He also told them that the Secretary of the Robodebt Royal Commission was coming to see him on Thursday 6 July, the minutes show.

Around this time (possibly on 7 July), an unidentified NACC official sent an email to an unidentified list of recipients with the subject heading, “Robodebt – Conflict of interest”. The email was tagged “[SEC = OFFICIAL:Sensitive]”. The contents were redacted.

The current leadership structure of the National Anti-Corruption Commission. Source: NACC; Composition: The Klaxon

In his response to this email, sent Friday 7 July, Commissioner Brereton confirmed that “I also have a conflict” regarding one of the six Robodebt referrals, now widely accepted as being Kathryn Campbell, the most senior public servant who oversaw the unlawful scheme.

It was one month after this email exchange that the newly revealed ‘Correspondence dated 7 August 2023’ occurred.

Then, nearly four months after the Secretary of the Robodebt Royal Commission had visited Commissioner Brereton, a Conflict of Interest Declaration dated 31 October 2023 was lodged by an unidentified senior NACC official.

No further details about either document were released. Access to both documents was denied.

Reasons for refusing access

In justifying its decision not to release any of the documents, the NACC claims that identifying the Deputy Commissioner who made the Robodebt decision could reasonably be expected to “have a substantial adverse effect on the proper and efficient conduct of the operations of the Commission”.

“If the relevant information is released, it could reasonably be expected to prejudice the safety and wellbeing of the Deputy Commissioner given the potential for them to be targeted and subjected to harassment and abuse in the context of the Commission’s decision not to commence a corruption investigation into the Robodebt referrals,” the NACC said.

“It could reasonably be expected to prejudice the safety and wellbeing of the Deputy Commissioner…(which) would adversely affect the operations of the Commission” – NACC

“This in turn would adversely affect the operations of the Commission in two ways.

“First, it could adversely affect the ability of the Senior Commission Staff member to efficiently carry out their duties and responsibilities, which would adversely impact the Commission’s operations.

“Second, it would necessitate the Commission undertaking safeguarding work to counter security and safety risks associated with the identity of this staff member being disclosed.

“This additional work would be a burden on the Commission and could delay performance of its core functions to an extent that would be unreasonable and not in the public interest,” it said.

The NACC FoI officer said that overall, “I am satisfied that the adverse effect would be ‘substantial’.”

“That is because it could be reasonably expected to affect the capacity of the Commission to fulfil its statutory functions.”

This article was first published at The Klaxon on 24.9.24.

Missed our earlier articles in this series?

4 Sep – NACC boss 'misled Dreyfus' over Robodebt

29 Aug – 'Recused' NACC boss Brereton at Robodebt meeting

28 Aug – NACC’s year-long Robodebt decision: just two pages long

24 Aug – NACC boss breaks own integrity policy over Robodebt

21 Aug – When is a ‘recusal’ not a recusal?

1 July — Brereton’s NACC cloaked in military-grade secrecy