The NACC is reconsidering its Robodebt decision after a misconduct finding.

The National Anti-Corruption Commission (NACC) has announced it will revisit its June decision to forego investigating the Robodebt referrals, following findings of procedural error by Commissioner Paul Brereton. 

The decision to appoint an independent review stems from the NACC Inspector's report (PDF), released this week, which found Brereton's management of a conflict of interest inappropriately impacted the decision-making process.

NACC inspector Gail Furness’s report shows that while Brereton had disclosed a perceived conflict - stemming from a prior professional association with a person referred in the Robodebt matter - he did not fully recuse himself. 

This involvement introduced an “apprehended bias”, defined as the potential perception of partiality by a reasonable observer. 

Furness classified Brereton’s actions as “officer misconduct”, under the NACC Act, arising from a “mistake of law or fact”. 

The report explicitly clarified, however, that there was no evidence of intentional bias or wrongdoing.

In light of these findings, NACC has committed to rectifying the matter. 

Commissioner Brereton admitted his judgement was mistaken, and accepted responsibility.

“Mistakes of law or fact are a professional inevitability for judges, tribunal members, and administrative decision-makers,” he stated, reiterating that “this mistake will be rectified by having the decision reconsidered by an independent eminent person”. 

The NACC is expected to finalise the appointment of this expert soon.

The Inspector's report not only calls into question Brereton’s conflict-of-interest management but also offers a broader critique of NACC’s recent handling of high-stakes referrals. 

As the report highlights, the Robodebt referrals were received during the first week of the Commission’s operations, while it was actively establishing its policies and procedures. 

These circumstances, while acknowledged, do not lessen the seriousness of the issue, according to integrity experts who stress the need for a swift and unbiased reassessment.

Public reaction has been strong. 

Integrity advocates, including Melbourne Law School’s Associate Professor William Partlett and barrister Geoffrey Watson, have called for Brereton’s resignation. 

Partlett says that “the commissioner of an anti-corruption commission should be completely above reproach,” suggesting that Brereton’s continued tenure may undermine the NACC’s credibility.

Geoffrey Watson SC, a former counsel assisting to the NSW Independent Commission Against Corruption (ICAC), said he would “Really hope that Mr Brereton would think carefully about whether his continuing role is in the best interests of the NACC”.

Others, such as former NSW Supreme Court judge Anthony Whealy, agreed Brereton’s actions were “reprehensible” but noted the NACC's willingness to appoint an independent reviewer as a positive measure. 

He says oversight bodies must be held to the highest standards, particularly as the NACC faces scrutiny less than two years into its establishment.

The Robodebt scheme, which demanded repayments from 526,000 Australians based on unlawful income-averaging algorithms, became one of Australia’s most damaging social policies, leading to significant financial and emotional tolls on affected individuals. 

A Royal Commission last year concluded that six federal officials should face further investigation, finding that the scheme represented a “massive breach of public trust”. 

The inspector’s report says the findings are an “important chance for the Commission to recalibrate and fulfil its mandate”.

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