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RUBY:

From Schwartz Media. I’m Ruby Jones, this is 7am.

In deciding not to probe Robodebt, Australia’s anti-corruption body seemingly failed its first big test.

But the NACC has been given a second chance, to reconsider an investigation into the scheme, and the six people referred to the body by a Royal Commission.

But now, it’s been revealed the person hand-picked to make that decision, has had the offer withdrawn over concerns his appointment might offend one of the very people referred for investigation.

Today, senior reporter for The Saturday Paper Rick Morton, on the dumping of the proposed robodebt investigator and what it means for the future of the NACC.

It’s Monday, November 18.

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RUBY:

So Rick, the National Anti-Corruption Commission, the NACC, in one of its first very controversial decisions, it declined to investigate referrals from the Robodebt royal commission. It was heavily criticised for that decision and it's now reconsidering. So tell me what that looks like.

RICK:

Yeah, I'm glad you said that. They declined to investigate because they did. They didn't do any investigation and it took them 11 months to do no investigation. Essentially, there were so many complaints made about that decision that the fully independent Office of the Inspector of the NACC, staffed by Gail Furness SC, is also the inspector of the New South Wales ICAC, launched investigation on the back of those complaints and found that the commissioner of the NACC Paul Brereton, who had declared internally four times that he had a conflict of interest with person number one who was referred through robodebt, but never actually fully recused himself from the decision making process.

Paul Brereton had engaged in officer misconduct as it's defined under the NACC Act, and that they should revisit the decision. And the NACC, of course, saw the writing on the wall and had already agreed through submissions to the inspector that yes, they would do that. And because of the way this is kind of being handled so far, they would seek to appoint an independent, eminent person to actually revisit that decision.

So someone who is not currently at the NACC would be brought in to relook at that. You know, that initial decision of whether or not to investigate one, two, three or all six of the Robodebt referrals. And what we're now learning is that that position was actually offered to the former solicitor general, Justin Gleeson, and then it was abruptly rescinded.

RUBY:

Right. Okay. So Justin Gleeson, former solicitor general, was offered this role as this independent eminent person to to revisit the issue of whether these six people referred to the NACC over possible wrongdoing during the Robodebt scandal should be investigated. But you're saying you've discovered that before he was even appointed, the idea was walked back. So why?

RICK:

Yeah, that's a very good question. And there's two different versions of this from people I've spoken to within the NACC. One of them is that it was just a simple conflict of interest thing. Even though Justin Gleeson had no conflicts with any of the six people referred directly. One of the six people, a former Coalition minister, had spoken publicly about Justin Gleeson during his time as a Solicitor-General and that gave rise to, you know, the need for them to be beyond reproach and that they couldn't go ahead with it. Now, why that wasn't sorted out before it got to almost appointing him properly is a really good question.

But the other version of this, and it is not without precedent within the NACC, was that they would actually countenance the idea that this former minister would complain and that they were worried about the views of this former minister once or if they announced Justin Gleeson as the eminent person to revisit the decision and that that was actually a huge factor in the decision making to pull the the job offer.

RUBY:

Right. So should concerns of a complaint be enough to stop an appointment like this, Rick?

RICK:

No, no, it shouldn’t. But I mean, if you listen to Geoffrey Watson SC and other eminent kind of legal minds, you know, decisions of corruption agencies around the country are always challenged and there will be for good or ill, he says.

Audio Excerpt - Geoffrey Watson:

“Every single step you take is going to be challenged for good or for ill purposes by some of the people who are the subject of allegations of corruption. That's the way it pans out.”

RICK:

So, you know, the fact that people might litigate or have complaints, is not in and of itself, a sufficient reason to not go ahead with something. In fact, you or the Corruption Commission, you should do what you think is right and just in the circumstances.

RUBY:

And can we talk a bit more about the decision making here? Do we know how or who made the call that Gleeson should not be appointed to that role?

RICK:

Yeah, that's I don't know the complete answer to that.

They won't go into any detail, of course, about who said what and when and where or why. But I did manage to speak to a number of people within the NACC and within the government who said that a lot of research went into the potential engagement of the former solicitor general Justin Gleeson.

And so, you know, we now have questions about, you know, did Brereton approach Gleeson? If he did, why did he back off or if it wasn't Brereton's idea, whose was it and who raised the issues internally about the Coalition Minister and Justin Gleeson? And we don't know the answers to that yet.

Now, of course, even though there's all these questions waiting around, I did ask the NACC you know. Did you consult with any of the referred people about this appointment or any particular appointment? And they said the NACC has not consulted and has no intention to consult with any referred persons about whether they have a view on the appropriateness of the independent eminent person.

RUBY:

And Rick, all of these seem to have happened at the very last minute, which leads to the next question, even if Gleeson wasn’t the right person for this job for any reason, why wasn’t that discovered sooner? And what does that failure say to you about what's going on inside the NACC and its processes?

RICK:

Yeah, they're not good. And I don't say that of one or two examples. In fact, we just had the inspector's annual report tabled where there were other deficiencies noted in the NACC’s handling of corruption referrals.

Their IT systems are not mature. I mean, there are new agency, so there are always going to be teething issues. But some of these decisions relate to the judgement of the commissioner and the deputy commissioners.

So we've got some issues with the way they handle stuff. There doesn't appear to be a coherent sense of how they go about their work. And having spoken to people now who have worked within the NACC, who are still within the that there is a real sense that they're kind of making some of these things up on the fly and in doing so, trusting their own discretion and their own kind of eminence, as in Brereton's case, as a former judge, but not realising or not giving full credit to the idea that they might actually make mistakes as they go.

And we're seeing that now come out not just in the decisions they've been making, but in terms of the hiring process, which was so far advanced, from what I can tell and which almost made it to the end. And then suddenly something's changed and someone's got cold feet somewhere. And Gleeson's been told, See you later.

RUBY:

So, can faith in the NACC be restored? That’s after the break.

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RUBY:

Rick, we're in a situation now where the NACC is appointing an outside expert to revisit a decision made by the Commission. We don’t know who that person is going to be, now there are serious questions around the process there. But the fact that this is happening at all, what does that say to you about the viability of the NACC’s leadership?

RICK:

There has been a lot of external commentary, right, including from the inspector, but also other eminent appeals court judges. Margaret White from the appeals court, former appeals court judge in Queensland, who is, you know, they've kind of bound the cat on this and said it doesn't seem like Brereton fully understands the function of his own commission.

Audio Excerpt - Margaret White:

“They seem to misconceived their role with the greatest of respect. They seem to think that because they couldn't provide some kind of compensation or remedy to those who, who were injured by this huge breach of public trust, therefore, there was no point in taking it up.”

RICK:

Someone else speaking to you from the NACC were like he suffers from having been a judge in that he thinks that, you know, there is an appeals court above him that will overturn any mistakes they make. But there isn't. The fact that the inspector received so many complaints was lucky that their role was triggered. It is also lucky that they figured that the public interest was high enough that their report was published into what they found about Commissioner Brereton's handling of this matter. Because had that not been the case, it's only in very specific circumstances where any of this would have been public knowledge.

And of course, I get the sense that a lot of the internal discussions that were had about what to do with rubber that the commissioner didn't think would ever see the light of day. So theres been pretty big statements and fairly a new practice. But they appear to be quite sensitive in defensive of public commentary, some of it on social media, but most of it in the media about things that people have been saying about the NACC.

One of the misinformation bits they seek to correct is that he had a conflict of interest with someone and they were very close personal friends. Now, Brereton again, not for the first time, corrected the record by saying they had a prior professional relationship. And they were not close. Now that in itself has been debunked by former Federal Court Judge Helen Robertson. Now, Helen Robertson said that whatever Paul Brereton is saying now to the inspector and now publicly about his relationship with person number one is gloss. That was the word he used. It's gloss, because the way he declared it internally before mine, before he thought anyone was going to see these words, was that he had a close association with person number one. And on another occasion he said, this person is well known to me. I believe as we speak, Paul Brereton is talking about public trust in government at a conference. Well, this is public trust and this is how you get rid of it step by step, bit by bit, erosion by erosion.

RUBY:

And the very reason that the NACC was set up was to counter this suspicion that the people that voters had that there is or was corruption in public life. So if the NACC fails to address that, then we lose more than just a bureaucratic body. Don't we? We lose more faith, more trust in public life.

RICK:

Well, we had one shot of this, right? We had a shot to bring about a national anti-corruption commission. You know, key considerations were watered down in the making of it. You know, the people corruption experts wanted public hearings unless there were really good reasons not to. But we didn't get that. The people we appointed to lead it had to be to use their own term in how they dismissed Justin Gleeson beyond reproach. The standards have to be the highest for the agency that enforces standards.

Whoever they appoint as the independent person and they might be another equally good candidate, that person is only making a decision about whether the NACC should investigate or not. Now, they might come to the same conclusion, in which case the process ends there nothing happens. But if they recommend an investigation, then the NACC has to do that investigation. The same people. Who do they delegate it to now? And the commissioner still presumably has to be recused.

So who at the NACC does the investigation, who signs off on any of this? As someone I think jokingly said on Twitter, we're going to need a parallel NACC, to set up just for the robotdebt stuff. And of course, then you get turtles all the way down because already in this case we've had the NACC make a decision that the inspector then called into question by hiring a former federal court judge to back up the legal argument she was making. And then they refer this back to the NACC. Well, we'll get an independent person to remake the decision. And it's like having a highway upgrade all the way to the end of the city. And then there's just one, a one light road. There's a bottleneck at the end and the bottleneck is the same commissioners, the same NACC, revisiting the same issue that they have comprehensively failed on.

RUBY:

It’s a dispiriting state of affairs, Rick.

RICK:

Do I do anything else?

RUBY:

Thank you so much for your time.

RICK:

Thanks Ruby. I appreciate it.

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RUBY:

Also in the news today,

The Prime Minister Anthony Albanese has backed Kevin Rudd to remain as Australia’s ambassador to Washington.

There has been speculation that Trump could demand Rudd’s withdrawal, after disparaging remarks Rudd made about the president-elect in the past, resurfaced.

Speaking from the APEC summit in Peru, Albanese described his first 10-minute phone conversation with Trump, as “very constructive and positive” and said that Kevin Rudd was not mentioned.

Meanwhile, Donald Trump has nominated oil and gas industry executive Chris Wright, a staunch defender of fossil fuel use, as his pick to lead the US Department of Energy.

Chris Wright is the founder and chief executive of Liberty Energy, an oilfield services firm based in Denver, Colorado.

He has previously called climate change activists “alarmist”, and has likened efforts by Democrats to combat global warming to Soviet-style communism.

I’m Ruby Jones, see you tomorrow.

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