Off to the NACCery

what even is the point of any of this

There are few things I’m less enthusiastic about doing in this very moment than writing a single word about the National Anti-Corruption Commission and its decision to do nothing further with six referrals from the Robodebt Royal Commission. Not a decision to find no corrupt conduct, to be clear, but a a decision to do nothing despite this being a list of the functions for the NACC head in the legislation:

And despite this being the legislated list of things it must consider doing:

And the reason I would rather do almost anything else right now is because nothing matters. I find myself asking over and over again: what is the point of any of this? What is the point, for example, of a national anti-corruption commission which appears to be more anti the corruption commission part than plain old corruption? What right does an agency have to exist where it refuses to engage in the first function for which it is legislated: to detect corruption?

NACC Commissioner Paul Brereton who delegated the robodebt decision to one of three deputy commissioners whose name has not been released.

So, it’s worth being rational about this to begin with. What did they say, exactly?

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.

So what are these other investigations? The only one to which it refers is the public service code of conduct investigation being carried out by the Australian Public Service Commission. Bear in mind that only five of the six individuals referred to the NACC are subject to the ASPC process. OK, so five people the NACC won’t make corruption/no corruption findings against are being looked at by the APSC.

What can the APSC do? Well, it can’t find anyone was corrupt, for a start. The critical normative value of any corruption commission is to attach, like a sticky-mine, the tag of corrupt next to an individual’s name so that they must, forevermore, be forced to account for it. The APSC will not do that. They can fire somebody. Or fine them! Or suspend them from duties or reassign roles. But only if that person is a current employee of the public service. And those with findings made against them will never be named because this is, ultimately, an employment process.

To be clear, Kathryn Campbell is no longer an employee of the APS. Annette Musolino, the former chief counsel of DHS, is no longer an employee of the public service. Neither is Serena Wilson or Mark Withnell or Scott Morrison or Stuart Robert or Alan Tudge, for that matter, not that they were ever covered anyway because they were ministers.

This is the only body the NACC seems to think has any chance of achieving “sanctions”. As so:

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.

This is an extraordinary admission that the NACC has no power. Well, almost no power. The clue is right there in the first sentence: beyond considering whether the conduct in question amounted to corrupt conduct within the meaning of the Act and, if satisfied, making such a finding. Somehow, in a universe constructed entirely from absurd linguistic contortion, the NACC — with corruption right there in its God damned name — seems to think the the best result it can achieve it abandoning its core focus for the vigorous lettuce flogging over at the APSC.

As if that would ever leave a mark.

But maybe there is something to this idea that the NACC couldn’t make any finding not available to the Robodebt Royal Commissioner Catherine Holmes? Let’s start with the obvious. I broke the story in May last year that the sole reason Holmes asked for a seven-day delay in handing down her findings was to make potential referrals to the National Anti-Corruption Commission. Her inquiry was meant to report 30 June, but the NACC started on 1 July. She was granted the week extension and, as we now know, made six referrals to the corruption watchdog.

Now, riddle me this! What is it that the NACC supposes the former chief justice of the Queensland Supreme Court Catherine Holmes didn’t fully understand about their legislation that caused her to mistakenly refer six people to the NACC when she could have just dealt with the matter there and then? I’ll wait.

The truth, of course, is that the royal commission is a fact-finding body and Commissioner Catherine Holmes has always had a reputation as being a somewhat conservative jurist in that she believes in following processes and allowing different bodies to do the work of civic society. I can’t speak for her but what I do know is that there is not an ounce of her person who would have a.) asked for a delay to her report — she told Justin Greggery to just get on with it in the days before hearings began when he asked to put them on hold until they were ready — if she didn’t absolutely have to and b.) make referrals to the AFP, the APSC, an ACT legal professional standards body and the NACC if she didn’t believe that each had a purpose to serve.

It is important to point out here, also, that corruption is defined under the NACC legislation. It is, if you like, the one thing on which they appear qualified to rule. And the definition goes well beyond what the lay understanding of such conduct might be. One does not need to be a politician receiving wads of cash in a car park. There are four pillars, which I quote direct from their website:

A person engages in corrupt conduct if:

1. they are a public official and they breach public trust

2. they are a public official and they abuse their office as a public official

3. they are a public official or former public official and they misuse information they have gained in their capacity as a public official

4. they do something that adversely affects a public official’s honest or impartial exercise of powers or performance of official duties. (Any person can engage in this type of corrupt conduct, even if they are not a public official themselves.)

The irony, of course, is that the failure to even bother to do any of this in relation to six anonymous people referred by another legal expert in Catherine Holmes — only five of whom are subject to the process the NACC claims makes them redundant — is in itself a catastrophic breach of public trust. This is the first public ‘decision’ of the new authority. It screams abdication.

Some ponderous commentary has emerged online which seems to suggest the APSC has powers grater than any contained in writing anywhere on the face of the planet. They have argued it can itself sue public servants for misfeasance in public office which is, frankly, bullshit and only available as a theory if you have been taking hallucinogenic drugs during remedial English. Some have suggested that this is an example of the NACC doing its job ‘perfectly’ by working with other agencies like the public service commission. To that I can only take a deep breath and marvel at what these observers might consider to be imperfect.

It is quite within the power of the NACC to do nothing. Nobody is arguing that it breaches the legislation. No, what we have is a more fundamental disagreement.

11 months is how long the robodebt royal commission took from start to finish. It needed twice as long but the results we managed to get from a stellar team of people are nonetheless critical; astounding even. Might the NACC have uncovered more evidence? We’ll never know. But it had everything it needed to crack on with detecting the corrupt conduct with which it is empowered under 17a.

What many, myself included, are critiquing here is a decision to deny justice to hundreds of thousands of robodebt victims in favour of a potential employment penalty for some people who happen to still be public servants. There may well be other civil and criminal charges — though the likelihood of the latter is slim to fuck-all — and I know for a fact Comcare is investigating Services Australia, though that rather misses the point of a NACC referral.

Administrative decisions, perfectly anodyne, many ever so ‘reasonable’ in isolation, created robodebt. Administrative decisions extended it, propelled it, rendered it immune from almost all outside scrutiny. Administrative decisions killed off legal challenge after legal challenge, including the class action where robodebt’s secrets might have died forever were it not for the royal commission, which almost didn’t happen. We now, of course, have another perfectly ‘reasonable’ administrative decision that is designed to protect those who created the illegal robodebt scheme from further “oppression” by affording them natural justice — a concept I support fully — but which those same people never once afforded to the 400,000+ people caught in the robodebt snare.

What really upsets me is the fact that the most opposition I have seen to this assessment — shared by anybody with a basic understanding of the law and public decency — has been from people who are strident in their protection of the NACC’s decision not because they think it is the right one, but because they need to believe it is the correct one, lest the light of their value system get refracted back on the Labor Government who they love almost unconditionally, it would seem. Labor cannot do wrong, even in setting up a corruption commission that is so stripped of its essential purpose that it really just seems to be a mail room for public grievances, and in order to maintain this self-evident fiction they must characterise everyone else as wrong about the NACC’s decision.

This almost zealous desire troubles me so much because it rejects reality in quite the same way that the decision-makers did when they averaged income over a full year for people on welfare who only earned that income sporadically.

We are surrounded by administrative fictions and I cannot stand it.