The anti-corruption commission that never arrived
Brereton’s resignation has exposed a deeper problem: Australia’s anti-corruption watchdog has failed to deliver the accountability, transparency and public confidence it was supposed to restore.
Has the National Anti-Corruption Commission ever lived up to its promise? Less than three years after it was created, the answer has to be a resounding no. The resignation of NACC Commissioner Paul Brereton has become more than just an issue about him – it’s reopened those basic questions about whether Australia’s long-awaited federal anti-corruption watchdog was ever designed to be a genuinely powerful integrity body, or whether it was paying lip service, and created just reassure a public that’s become deeply cynical about politics, following years of scandals, controversy and declining trust in institutions, especially during the era of the Morrison government.
When Brereton spoke at the launch of the NACC in July 2023, he spoke of a “historic democratic reform”, arguing that the public was no longer willing to tolerate conduct that previous generations might have accepted or ignored, and that parliament had responded by creating a body grounded in the principles of “best-practice” anti-corruption measures.
After decades of demands for a federal integrity commission, many people would have believed a new era of accountability that they could finally rely on had arrived. Instead, they received and institution that’s become laced with secrecy and total disappointment, with a belief that it’s now acting as a hinderance to combatting corruption, and it would be better if it wasn’t there at all.
Brereton suggested that personally being the focus of attention had become a distraction for the commission but, in reality, from the beginning, there had always been questions about whether he was the right person for the role. In so many hearings, Brereton had to recuse himself, because of the many actual or perceived conflicts of interest. Given his previous as a judge and military investigator, this might have been unavoidable, but surely the government would have been aware of the problems this would have caused.
The commission was created in response to the growing anger over a succession of controversies that dominated the final years of the Morrison government. The Robodebt scandal, controversies over sports grants, questions about ministerial conduct, the increasing levels of political lobbying by corporations, concerns about public sector contracting, and revelations regarding Scott Morrison’s secret self-appointments to multiple ministries – all of these issues contributed to a widespread belief that Australia’s federal integrity framework was inadequate or non-existent. Labor’s promise to establish a national anti-corruption body became one of its most popular commitments ahead of the 2022 election.
For many voters, this should have been a pretty straightforward proposition. A powerful anti-corruption commission to investigate serious allegations involving ministers, senior public servants and political figures, acting as a deterrent against misconduct and restoring confidence in public institutions. Nearly three years later, almost all those expectations haven’t been realised.
For sure, the commission has processed thousands of referrals and undertaken numerous assessments and investigations. But its public record and output has been remarkably weak compared with the scale of public concern that led to its creation, with only 11 convictions of corruption over three years. While some of these convictions have arisen from matters referred through NACC processes, these have overwhelmingly involved lower-level misconduct rather than major political corruption cases, and has not produced the kind of high-profile investigations that many Australians would have expected when it was first created.
Nothing highlights this issue more than the scandals surrounding Robodebt. The Royal Commission into the Robodebt Scheme delivered some devastating findings about one of the greatest failures of public administration in modern Australian history. The scheme unlawfully recovered debts from hundreds of thousands of welfare recipients and contributed to profound financial and psychological harm. The Royal Commission also found that senior public servants and ministers ignored legal concerns and continued to defend a program that was deemed to be unlawful.
Robodebt became a landmark test of whether the NACC would demonstrate independence and courage, with the belief that if an anti-corruption body could not seriously investigate one of the most egregious scandals in Australian history, what exactly was it created to do?
The commission ultimately decided not to pursue corruption investigations arising from the sealed section of the Royal Commission report. Whether or not that decision was legally justified – and it’s unclear if it was – it was political catastrophe: the public expectations that the NACC would find and weed out corruption, especially in such an obvious case, were not met, and the commission seemed to be accountable to no-one for the decisions that it made.
It’s apparent that the NACC was designed with severe limitations that are so different to other integrity commissions around Australia, particularly the NSW Independent Commission Against Corruption. Public hearings at the NACC are rare and tightly restricted; the legal threshold for proving corrupt conduct is so narrow that it’s almost impossible to define. Many forms of behaviour that the public would associate with corruption – the high influence of lobbyists, donor access to ministers and political favouritism with certain corporations – doesn’t seem to be classified as corruption under federal law. As a result, conduct that for most people appears to be unethical, improper or damaging to public trust falls outside of the reach of the commission.
The Australian electorate was promised a powerful anti-corruption watchdog but what they’ve received is a body that is reluctant to pursue politically sensitive matters and is constrained in its ability to examine the way influence and power is exercised within federal politics. And in nearly three years since its inception, it hasn’t found one incident of political corruption, even though there are no time limits on how far back it could look.
The danger is not just that the NACC has failed to meet expectations, the fact is that it’s made a severe dent in the confidence of public accountability itself. Anti-corruption bodies don’t exist just to punish those who engage in corruption, but to deter the corruption in the first place, way before it occurs. If a watchdog is perceived to be weak and ineffective, and unwilling to pursue powerful people, that’s not much of a deterrent.
There isn’t an anti-corruption agency anywhere in the world that will completely remove corruption in public institutions. We don’t live in a perfect world, and there will always be the opportunities for corruption: it’s human nature. But the objective for an institution such as the NACC is to minimise corruption, improve transparency and reassure the public that nobody is above the law. The NACC has failed to achieve any of those goals, and it’s missed the mark by a long way.
The resignation of Paul Brereton might be removing one source of controversy, but it doesn’t resolve a far greater problem. The challenge now facing the Albanese government is not just about appointing a new and suitable commissioner, it’s about confronting a more difficult question: whether Australia’s federal anti-corruption framework was designed to expose corruption, or just exists to create the appearance of someone looking for it.
Brereton was not the right Commissioner. But I suspect Albanese knew that. The NAAC was created flawed because the powers that be did not want a Crime and Corruption body that would ‘embarrass’ ‘innocent’ politicians like what occurred before ICAC. So I’m pretty sure the NAAC has performed just as the Government intended.
“Brereton had to recuse himself,”
Many people believe that he did not actually even do that when required.