Friday 7 June 2024

NATIONAL ANTI-CORRUPTION COMMISSION STATE OF PLAY June 2024: When a opaque national anti-corruption body is structured with a deliberate lack of transparency then this type of scenario is almost guaranteed to play out


The National Anti-Corruption Commission (Consequential and Transitional Provisions) Bill 2022 passed both houses of the Australian Parliament on 30 November 2023 after the government accepted 38 amendments - 36 originating in the House of Representatives and 2 in the Senate.

So on 12 December 2022 the NATIONAL ANTI-CORRUPTION COMMISSION ACT 2022 received the Governor-General's assent and the National Anti-Corruption Commission (NACC) was born.

The NACC is apparently overseen by the Parliamentary Joint Committee on the National Anti-Corruption Commission (PJC-NACC) (current membership composition 6 ALP, 4 Coalition, 1 Greens & 1 Independent) and an Inspector of the National Anti-Corruption Commission (the Inspector).

Its jurisdiction limited to the federal public service, its day-to-day activities opaque and lacking any real transparency, it blithely produces meaningless stripped statistics such as this excerpt from a Media Alert concerning NACC Referral and assessment from 1 July 2023 to 2 June 2024:

"At the end of the reporting period, the Commission had:

  • received 3023 referrals

  • excluded 2350 referrals at the triage stage because they did not involve a Commonwealth public official or did not raise a corruption issue

  • 139 referrals awaiting triage

  • 257 triaged referrals under assessment including 22 under preliminary investigation

  • assessed 260 referrals, in respect of which the Commission:

* decided to take no further action in 247 cases. Typically, this is because the referral does not raise a corruption issue, or there are insufficient prospects of finding corrupt conduct, or the matter is already being adequately investigated by another agency, or a corruption investigation would not add value in the public interest. [my yellow highlighting]

* referred 9 corruption issues to agencies for investigation or consideration.

* decided to investigate 19 corruption issues itself.

* decided to investigate 6 corruption issues jointly with another agency.

So it should come as no surprise that the NACC produced this on its News and Media webpage on Thursday, 6 June 2024:

NationalAnti-Corruption Commission decides not to pursue Robodebt RoyalCommission referrals but focus on ensuring lessons learnt

Media Releases


6 Jun 2024

On 6 July 2023, the National Anti-Corruption Commission (Commission) received referrals concerning six public officials from the Royal Commission into the Robodebt Scheme (Robodebt Royal Commission) pursuant to section 6P(2B) of the Royal Commissions Act 1902 (Cth).

The Commission has carefully considered each referral and reviewed the extensive material provided by the Robodebt Royal Commission, including its final report, and the Confidential Chapter.

The Commission has become aware that five of the six public officials were also the subject of referrals to the Australian Public Service Commission (APSC).

The Commission is conscious of the impact of the Robodebt Scheme on individuals and the public, the seniority of the officials involved, and the need to ensure that any corruption issue is fully investigated.

However, 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. After close consideration of the evidence that was available to the Royal Commission, the Commission has concluded that it is unlikely it would obtain significant new evidence.

In the absence of a real likelihood of a further investigation producing significant new evidence, it is undesirable for a number of reasons to conduct multiple investigations into the same matter. This includes the risk of inconsistent outcomes, and the oppression involved in subjecting individuals to repeated investigations.

In deciding whether to commence a corruption investigation, the Commission takes into account a range of factors. A significant consideration is whether a corruption investigation would add value in the public interest, and that is particularly relevant where there are or have been other investigations into the same matter. There is not value in duplicating work that has been or is being done by others, in this case with the investigatory powers of the Royal Commission, and the remedial powers of the APSC.

Beyond considering whether the conduct in question amounted to corrupt conduct within the meaning of the Act and, if satisfied, making such a finding, the Commission cannot grant a remedy or impose a sanction (as the APSC can). Nor could it make any recommendation that could not have been made by the Robodebt Royal Commission. An investigation by the Commission would not provide any individual remedy or redress for the recipients of government payments or their families who suffered due to the Robodebt Scheme.

The Commission has therefore decided not to commence a corruption investigation as it would not add value in the public interest. However, the Commission considers that the outcomes of the Robodebt Royal Commission contain lessons of great importance for enhancing integrity in the Commonwealth public sector and the accountability of public officials. The Commission will continue through its investigation, inquiry, and corruption prevention and education functions, to address the integrity issues raised in the final report, particularly in relation to ethical decision making, to ensure that those lessons are learnt, and to hold public officials to account.

In order to avoid any possible perception of a conflict of interest, the Commissioner delegated the decision in this matter to a Deputy Commissioner. [my yellow highlighting]

The Commission will not be making further comment.

For the record the current NACC deputy commissioners appear to be Ms Nicole Rose PSM, Dr Ben Gauntlett and Ms Kylie Kilgour. So it was with one of these individuals that NACC Commissioner Hon Paul Brereton AM RFD SC decided to play 'pass the parcel.

Pundits have already coined a term to cover the public reaction to National Anti-Corruption Commission decisions - Being NACCered.

The reaction of one of a handful of reputable journalists who followed the Royal Commission into the Robodebt Scheme proceedings:

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