Is the NACC living up to expectations?

The establishment of the National Anti-Corruption Commission in 2023 was heralded as a crucial step towards enhancing transparency and accountability within governmental operations in Australia, and this development came in response to long-standing public concerns about corruption and misconduct among high-ranking officials. However, the NACC’s operational effectiveness has been increasingly questioned, particularly in light of its selective investigative processes and apparent reluctance to pursue high-profile figures and cases.

The Robodebt scheme, implemented by the former Liberal–National Government, was the controversial welfare debt recovery program that was eventually ruled unlawful. The scheme not only caused significant distress and financial hardship for many affected individuals but also raised serious questions about the ethical conduct of those at the highest levels of government. The decision by the NACC last month to refrain from further investigation into this matter, coupled with the Australian Federal Police’s decision not to pursue allegations of perjury against Scott Morrison at the Robodebt Royal Commission, raises critical concerns about the commission’s priorities and its commitment to uncovering truth and ensuring justice.

In its first year of operation, the NACC has seemingly devoted more effort to delineating what not to investigate rather than proactively uncovering instances of corruption, as shown by the large number of referrals it has decided to overlook – over 83 per cent of all referrals. While it could be assumed that within a total of 3154 referrals, some would be from vexatious claims and frivolous litigants, but having such a high percentage that has not passed the first point of inquiry suggests that either the legislation for the NACC is not strong enough, or it’s an institution that cannot effectively carry out its work.

This approach not only undermines the very purpose of its creation but also erodes public trust in the institution. The appointment of Paul Brereton as the Commissioner, a figure with a military background, further complicates these perceptions. His military expertise, while extensive, might not translate effectively into leading a complex, civil anti-corruption agency focused on nuanced legal and ethical issues.

There is a pressing need for restructuring the commission to ensure it is led by individuals with legal and judicial expertise – people who are independent and relentless in the pursuit of uncovering corruption, without the spectre of political bias or insufficient capability. This shift would not only align the commission more closely with its foundational goals but also restore public confidence in its ability to act as a genuine watchdog for government integrity.

As it stands, the National Anti-Corruption Commission’s initial performance has been underwhelming, marked by missed opportunities and a lack of aggressive pursuit of justice. For the NACC to fulfill its potential as a critical instrument of accountability, significant reforms are essential. These reforms should focus on enhancing investigative performance, ensuring leadership that is both capable and suited to the task, and aligning the commission’s operations with the clear, unequivocal pursuit of uncovering and addressing corruption wherever it may lie.

The first year: A review of NACC’s effectiveness and transparency

The NACC at this stage also appears to be a Kafkaesque “bureaucratic black hole,” where referrals are made without substantial follow-through. A further test for the NACC will be a recent referral from the Australian Greens concerning a $2.25 billion contract with a British subsidiary company – ASC Shipbuilding – which has escalated to $15 billion. Such defence contracts, often shrouded in ‘commercial-in-confidence’ secrecy, represent just the type of high-level corruption the NACC should be poised to investigate due to the enormous sums and significant implications involved.

However, the pattern that emerges from past misdemeanours is disconcerting. Retrospective scandals from previous administrations, such as the questionable $30 million land sale from Liberal Party donors at Western Sydney Airport for land valued at $3 million, and various dubious water licensing deals and relationships with entities in the Cayman Islands, appear to have been sidestepped.

The referral numbers might be staggering in their volume but are minuscule in their prosecutorial outcome, with only five cases making it to court, resulting in only two convictions. Certainly, such cases can be complex and require a substantial amount of legal resources to arrive at an outcome, but such a mediocre result does not instill confidence in the NACC’s ability to fulfill its mandate.

The lack of transparency is another critical issue. The NACC’s operations are opaque, with little information available about why certain cases are dismissed and others are pursued. This opacity not only fuels public cynicism but also diminishes the perceived integrity of the commission. The question arises: why have nearly two and a half thousand referrals been dismissed without any explanation? This practice contributes to a perception that the NACC may be serving more as a political shield than a robust anti-corruption agency.

While the work of Paul Brereton in his previous role in exposing war crimes committed by Australian soldiers in Afghanistan was effective – although no charges have been laid against anyone – his approach has not yet reassured the public or political observers that he is the figure to steer the NACC toward a path of aggressive and impartial corruption investigation. There needs to be a different style of leadership – similar to the leadership provided by inaugural commissioner of the NSW Independent Commission Against Corruption, Ian Temby – who can rejuvenate the NACC into the formidable anti-corruption entity it was intended to be – one led by someone with legal acumen and a relentless commitment to justice, rather than a figure perceived as compliant within the political framework.

Federal v. State: How would NACC deal with Gladys Berejiklian?

The recent inability of former NSW Premier Gladys Berejiklian to overturn findings of serious corrupt conduct highlights a disparity in the effectiveness of anti-corruption mechanisms across Australia. Berejiklian’s case, adjudicated by the NSW Independent Commission Against Corruption, shows the rigorous standards some state-level bodies maintain in addressing corruption. However, its quality and effectiveness casts a shadow over the national body’s capability, or lack thereof, to handle similar cases with the same level of tenacity and transparency.

The NSW ICAC, recognised as one of the toughest and most comprehensive anti-corruption bodies globally, has shown a resolve that the National Anti-Corruption Commission appears to lack. This distinction is particularly alarming given there has been some speculation that had Berejiklian been under the purview of the NACC, her political career would not have suffered the same consequences, the serious corruption she engaged with would never have been uncovered, and she’d still be the Premier of New South Wales.

This leniency feeds into a broader narrative of a systemic tolerance for corruption among Australia’s powerful elites. Berejiklian’s subsequent appointment as a senior executive at Optus, despite the serious allegations against her, exemplifies how high-ranking individuals often continue to thrive, escaping significant repercussions. This situation reveals a disturbing pattern: while lower-level officials may face the consequences of corrupt actions, those with substantial influence and resources frequently evade similar accountability.

The perception that the NACC acts as a “toothless tiger,” primarily targeting relatively minor infractions while neglecting substantial corruption among politicians and senior bureaucrats, undermines its purpose and effectiveness. If the NACC continues to demonstrate a selective approach to investigations, it risks becoming irrelevant or, worse, viewed as a protective mechanism for political and bureaucratic elites rather than a bulwark against corruption.

Ultimately, the effectiveness of anti-corruption measures hinges not just on the ability to prosecute but on the broader impact those actions have on public trust and institutional integrity. Without visible and meaningful consequences for those found guilty of corruption, these bodies will fail to deter misconduct, leading to a cynical view of justice that can erode the very fabric of democratic governance.

For Australia – or any other nation – the goal should be not only to punish corruption but to foster an environment where integrity and accountability are the hallmarks of public service. This requires robust, effective, and fearless anti-corruption agencies that are empowered to act decisively against malfeasance at all levels of government, ensuring that these bodies are not only capable of fighting corruption but are also seen as effective and equitable in their pursuit of justice.