In my questioning of NACC Commissioner Brereton, we reviewed the commission’s performance and legislative framework since July 2023.

Commissioner Brereton confirmed that the NACC has received 7,624 referrals, of which 7,026 have gone through the assessment process. Out of these, 54 investigations have been commenced alongside 22 inherited from ACLEI; 35 have been completed and 34 remain active.

The NACC said they do not institute prosecutions directly but refers prosecutable matters to the Commonwealth Director of Public Prosecutions. Since commencement, 11 convictions have been secured, with four active prosecutions currently before the courts.

When I asked whether the definition and requirements for an investigation are too narrow or require widening, Brereton argued against expanding the scope. He noted that broadening the definition of “corrupt conduct” risks categorising ordinary conduct as corruption, which carries serious reputational implications.

Brereton noted a couple of minor legislative adjustments that could assist the NACC, such as the ability to appoint temporary assistant or acting deputy commissioners to manage conflict-of-interest situations and shifting terminology from “corruption issue” to “referral” to simplify the process for lay people.

As his term concludes, I addressed the public complaints regarding his perceived conflicts of interest, to which he replied that he did not take on the role to be popular.

Transcript

Senator ROBERTS: Thank you, Commissioner Brereton, for appearing. Thank you all for appearing. When were you appointed? What was the date when you were appointed to the NACC?  

Mr Brereton: The appointment took effect on 1 July 2023, if that is what you intend. The instrument of appointment was sent to me, I think, on 30 May.  

Senator ROBERTS: How many successful prosecutions have been commenced and completed since the NACC was established, not including inherited cases?  

Mr Brereton: The NACC doesn’t commence prosecutions. We refer matters where we think there is a prosecutable case to the Commonwealth Director of Public Prosecutions, who decides whether or not to prosecute them. I know that, since we commenced, 11 convictions have been secured. Some of them are in matters which derive from ACLEI investigations and some in matters which were investigated purely by the NACC. I think three prosecutions have been instituted on referrals from us since 1 July 2023, but I stand to be corrected on that figure. There are currently four prosecutions before various courts in respect of matters referred by us or continued by us since inception. We have published seven investigation reports over that period, four relating to matters which had been commenced by ACLEI and which we completed, and three in matters exclusively commenced by us.  

Senator ROBERTS: How many complaints have been accepted and investigated since inception?  

Mr Brereton: The chief executive officer will dig out the precise figures, but we’ve received a total of something like 7,200 referrals, I think, over that period. Of them—I’m sorry; I’m corrected. It’s 7,624 referrals from 1 July 2023 to date. Of them, 7,026, or 92 per cent, have gone through the assessment process. I think 54 investigations have been commenced since 1 July 2023 in addition to 22 that we inherited from ACLEI. Of those investigations, I can tell you that we have completed 35 and there are 34 currently on foot.  

Senator ROBERTS: How many active investigations are currently underway?  

Mr Brereton: Thirty-four.  

Senator ROBERTS: Thank you. Why does the NACC have such a poor reputation?  

Mr Brereton: I don’t accept the premise of the question.  

CHAIR: It sounds a lot like you’re asking for an opinion, Senator Roberts.  

Senator ROBERTS: Are the requirements to achieve an investigation by the NACC too stringent or narrow to assist those who make a referral?  

Mr Brereton: I’m sorry; I didn’t quite get that.  

Senator ROBERTS: Are the requirements to achieve an investigation by the NACC too restricted or too narrow?  

Mr Brereton: We investigate corrupt conduct. ‘Corrupt conduct’ is defined in the act. What is the appropriate test for that? It’s a matter for the parliament. We apply what the law is.  

Senator ROBERTS: So you don’t think the NACC was stifled in any way or needs to be widened in its requirements?  

Mr Brereton: No, I don’t think it is stifled, and I think there are real problems in widening it because, first, the concept of what ‘corrupt conduct’ is broadly reflects that in the state and territory legislation. It’s not a perfect consistency but an approximate consistency around the country. Second, to say that something is corrupt is a serious statement to make about a person and their conduct. To broaden the definition of what a corruption commission investigates would risk bringing into the rubric of ‘corrupt conduct’ conduct that most people would not regard as corrupt. So I would not advocate a widening of scope.  

Senator ROBERTS: Do you need any legislative changes made to the NACC?  

Mr Brereton: There are some that I might be able to think of if I went away and thought about it, and we have identified a few. The ability to appoint an assistant commissioner or an acting deputy commissioner would be a useful addition, mainly to deal with conflict-type situations.  

Senator ROBERTS: What do you mean by ‘conflict-type’?  

Mr Brereton: When there is a necessity to find someone unaffected by conflict to conduct an investigation, the ability to bring an additional person in would be a useful one to have. Personally, I think the focus of the legislation on the term ‘corruption issue’ rather than on a referral makes the process a bit complex and difficult for some to understand, and—  

Senator ROBERTS: The focus on—what did you say? I missed it.  

Mr Brereton: The term ‘corruption issue’ is used through the legislation as the subject matter of a decision whether to investigate or not. I think it would be better if it referred to a referral rather than a corruption issue in that context, because what we are really doing is assessing a referral and deciding whether to investigate that referral or not.  

Senator ROBERTS: So you’re worried about it being assumed to be corrupt rather than—  

Mr Brereton: No, no. It’s really a technical concern that just introduces some legal complexities. I’m not concerned about corruption being assumed. I think it is a refinement that could be made to the act to make things a bit easier, particularly for laypeople to work their way through. I’m sure there are some others that I could think of, but they’re the ones that spring to mind.  

Senator ROBERTS: Will you be doing a debrief with anyone—an exit interview, so to speak?  

Mr Brereton: I will be there for the next six weeks, and I will pass on whatever I can during those six weeks. And, yes, I certainly intend, at some convenient stage, to provide suggestions about the legislation to the appropriate officials.  

Senator ROBERTS: I don’t intend to touch on your conflicts of interest or perceived conflicts of interest and the accusations that have followed you. That’s been done by others. You were controversial.  

Mr Brereton: It appears that, in some quarters, I have created controversy. I said, when I came to the job, that you don’t do it to be popular, and I didn’t do it to be popular.  

Senator ROBERTS: With respect, Commissioner Brereton, the people—and there are quite a few—who are complaining about your behaviour or your conflicts or perceived conflicts I wouldn’t see as natural enemies of you.  

Mr Brereton: Well, you may not know who my natural enemies are.