The Opaque National Anti-Corruption Commission Has Become a Bastion for Government Coverup

In the leadup to the last federal election calls for a federal ICAC, similar to the NSW Independent Commission Against Corruption, were stronger than ever, and the Albanese government promised to deliver an anticorruption watchdog that would undertake fearless investigations into wrongdoing within the Australian Public Service, in terms of politicians and bureaucrats.

And federal Labor delivered on this last year, when the National Anti-Corruption Commission began operating on 1 July. And despite heavy criticism that erupted when then Coalition attorney general Christian Porter proposed an integrity commission with closed door hearings for the APS, while law enforcement officials would be heard publicly in late 2022, most NACC proceedings are closed door.

The NACC released its figures to date on 18 September, which reveal that the body is currently conducting 32 preliminary hearings, 28 corruption investigations, it’s monitoring 18 inquiries by other agencies, has six matters before the courts and has 480 referrals pending.

The note, however, neglects to mention that the new federal watchdog is currently under investigation for corruption.

Indeed, the new commission was under inquiry for corruption prior to its one year anniversary, as the Inspector of the National Anti-Corruption Commission (INACC) Gail Furness SC had received over 900 hundred complaints in the week following the 6 June NACC decision not to investigate Robodebt, and, as so many complaints alleged “corrupt conduct or maladministration”, she’d decided to inquire.

The official NACC Robodebt scheme inquiry was the key investigation the nation had presumed a body like the NACC was established to pursue. And as it made the decision not to do this, after the Royal Commission into Robodebt had provided it with a sealed section of its report naming six public officials warranting further investigation, it appears something fishy is going on at the opaque NACC.

A corrupt anticorruption watchdog

The INACC provided an update on her investigation into the national anticorruption watchdog decision again in response to inquiries about it, which is being carried out in accordance with section 184(1)(e) of the National Anti-Corruption Commission Act 2022 (Cth), which provides that the office bearer can investigate complaints of “agency maladministration or officer misconduct”.

“Between June and August 2024, the National Anti-Corruption Commission provided the inspector with documents the inspector had requested,” the 26 September INACC update confirmed. “On 3 September 2024, the inspector asked the National Anti-Corruption Commission to provide submissions on a range of specified matters.”

Robodebt was a scheme launched by the Coalition government in 2015, which relied upon an illegal process of computerised income averaging that produced false debts as it was misconceived in design, which saw welfare recipients who’d been receiving the dole and at times, working casually as well, being sent out statements ordering them to pay back amounts that they didn’t really owe.

The scheme that ran until late 2019, and, as it targeted some of the most vulnerable people in the community, resulted in at least two suicides and likely more. And the Royal Commission found that by 2017, the havoc it was wreaking in the community was apparent due to widespread complaints and criticism. However, the government doubled down on its claims it was benefiting taxpayers.

The INACC last Thursday advised that the NACC had determined it would be providing it with the submissions it has requested in relation to the investigation of whether the anticorruption watchdog’s decision not to investigate Robodebt was an act of corruption by 21 October, and when she’s completed her inquiry, she’ll be reporting on it.

The right to shred documents

From the perspective of its critics in the public, the NACC is not fulfilling its role, as in deciding not to investigate the six public officials identified as potentially having broken the law during the Robodebt fiasco, the new statutory body appears to be sweeping this major corruption matter under the carpet at a point where none of the main players have been thoroughly held accountable for their actions.

An example reflecting the fact that Labor might find it more convenient to let Robodebt matters fade into the past, rather than make politicians and bureaucrats be held accountable for harmful actions and processes they were responsible for under another government, last week’s outcome of the Federal Court case Rex Patrick versus Attorney General Mark Dreyfus highlights this will to conceal.

Former SA senator Patrick submitted a 3 February 2020 freedom of information (FOI) request to the then Morrison government regarding any briefing material or advice sent by the Attorney General’s Department to the Department of Prime Minister and Cabinet in relation to the sports rorts affair and former sports minister Bridget McKenzie.

The request was refused in April 2020, as there was only one document, but it was found exempt. However, the then senator continued his attempt to obtain that document, via the Office of the Australian Information Commissioner, and he continued to do this after the change of government and despite the commissioner finding early last year that FOI no longer applies after a change.

Patrick took the nation’s chief lawmaker to court, as he was attempting to avoid having to handover the official document, to the point that the AG spent over $300,000 defending this position. However, the court found last week that a change of government does not mean all past official documents suddenly become rubbish, but in fact, they remain official documents of a minister.

And the only conclusion the public has been left to come to in regard to why Dreyfus would be fighting tooth and nail to ensure that a document that was originally produced by the office of then attorney general Christian Porter in early 2020 is that the current AG is doing the Coalition a favour, which would likely ensure that the opposition would have his back when the duopoly switches place.

Not in the public interest

“Labor will deliver a powerful, transparent and independent National Anti-Corruption Commission – one with teeth,” now prime minister Anthony Albanese promised during a televised debate against then PM Scott Morrison in April 2022, the month before his election victory. “And we’ll do it this year. We need to restore faith in the political system,” the then opposition leader added.

But on 6 June this year, that promised watchdog with teeth found that an investigation into the Robodebt scheme wouldn’t be “in the public interest”, as there’s no value in “duplicating work that has been done or is being done by others”, and it pointed to the Royal Commission and the fact that the Australian Public Service Commission was then conducting its own inquiry into bureaucrats.

An APSC taskforce investigated 16 public servants in relation to Robodebt, which was conducted on request of the Royal Commission and included five of the individuals referred to the NACC. And it released its report findings last week, which outlined that 12 former and current public servants and agency heads had breached the APS Code of Conduct a total of 97 times in relation to Robodebt.

Two of the twelve individuals who were found in breach were identified publicly, as they had both been the agency heads during the life of the Robodebt scheme, while the ten others remain unnamed publicly and only four of the government employees will receive any sanctions or reprimands, as they’re the only ones that continue to work as part of the Australia Public Service.

So, as it stands presently, none of the main offenders involved in the roll out and maintenance of the illegal Robodebt scheme will face any kind of scrutiny or punishment that’s proportionate to the harms they unleashed upon the general public, and the chief reason for this are the actions and decisions of the new national anticorruption watchdog that’s now being scrutinised as corrupt.