Chapter 2Key issues
2.1The first annual report for the Inspector of the National Anti-Corruption Commission provides an overview of the first year of operation.
2.2This chapter examines the key issues raised in the Inspector’s report and at the public hearing, information in relation to establishment of the function of the Inspector and concludes by providing the committee’s view.
Performance of statutory functions
Complaints
2.3The Inspector received over 1,300 contacts during the year. Of these, 1,164 were specific complaints about the NACC’s decision not to investigate the Robodebt Royal Commission referrals (discussed further below), 50 were considered other complaints, and the remainder were inquiries and other contacts.
Complaints about maladministration or officer misconduct
2.4Two complaints were received (other than the Robodebt referrals) which the Inspector considered could, if established, amount to maladministration. In both cases the Commission was responsive in changing the NACC’s processes and the Inspector determined that the complaints did not amount to maladministration.
Other complaint themes
2.5Of the 50 other complaints, 42 primarily concerned the decision by the NACC not to investigate a referral. Seven complaints were made about service standards when making a referral to the Commission, most of which concerned the timeframes for response. In reviewing these complaints, the Inspector had regard to the large number of initial referrals and unless the length of time was unreasonable in all circumstances, took no action.
Timeframes for dealing with complaints
2.6Of the 50 complaints, the Inspector finalised 39 in the reporting period. The average time taken to finalise a complaint was approximately 3.5 weeks. Just over 10 per cent of complaints were finalised in more than six weeks, with most of those complaints involving requests for additional information from the NACC.
Enquiries and other contacts
2.7The Inspector dealt with about 160 enquiries and other contacts. Of them, 76did not relate to the NACC, 46 addressed their correspondence to the NACC or contained content that should have been addressed to the NACC and 16 related to difficulties with making a referral to the NACC or receiving information from the NACC. The Inspector noted that many of these issues have been resolved or were in the process of being resolved.
Complaint trends
2.8At a public hearing on 22 November in Canberra, Ms Gail Furness SC, the Inspector of the National Anti-Corruption Commission was asked about any trends in terms of the nature of complaints made. She explained:
Not surprisingly, the concerns expressed to me were about the intake and triage process. There were certainly a lot of teething issues. People couldn't contact the commission. There was a web form that they had to use but they didn't get a copy of the web form, so they'd come to me and I'd say, 'I'll have to go to NACC to get a copy of your complaint to it.
That's an obvious trend. It's obvious that that's what I would get. But again, with my other hat on, I anticipate, as the commission becomes more operational, the nature of the complaints to me will reflect that. The trend is: intake and triage, generally speaking: 'They didn't investigate my concerns. I wish they did and they should have.'
Audits
2.9The Inspector did not conduct an audit during the reporting period.
Mandatory referrals
2.10During the reporting period two NACC corruption issues were referred by the Commissioner to the Inspector under section 203 of the NACC Act.
Public Interest Disclosures
2.11The Inspector noted that section 184(1)(j) of the NACC Act provides that the Inspector has the function of receiving public interest disclosures and to deal with those disclosures. However, she also notes that the Inspector is not an ‘agency’ under thePID Act. While there are provisions in the NACC Act which mirror the obligations and protections under the PID Act, these matters have been raised with the Attorney-General’s Department and the expectation is that they will be clarified by the next reporting period.
Investigations
2.12The Inspector commenced an inquiry into the decision by the NACC not to pursue Robodebt Royal Commission referrals during the reporting period. This became an agency maladministration or officer misconduct investigation which was not completed in the reporting period. The Inspector concluded her investigation and published her report on 30 October 2024.
Complaints
2.13The Inspector took the committee through her process in relation to this investigation, starting with the number of complaints:
I received 700 complaints within about three days of the decision being published by the commission. That is now over 1,200 complaints. When it reached 700, I think it's fair to say that I knew I had to inquire into it, because there would be no way I could write to 700 people saying there was nothing to see here without me looking to see if there was anything to see. So the sheer number was sufficient for me.
2.14The Inspector outlined the key themes arising from the complaints in the annual report and noted that she considered that one or more of the complaints could amount to agency maladministration or officer misconduct.
2.15Ms Furness reflected on the nature of the complaints at the public hearing:
The nature of the complaints which particularly resonated with me—because, as you know, I don't have a merits review jurisdiction; my jurisdiction is set out in the act—was the conflict of interest, which was raised by a number of people, and the terms of the media release. They particularly generated my concern, given the nature of my jurisdiction. In my experience of complaints, which goes back some time, I don't think I've ever received or heard of that number of complaints being received about the same matter in a way that they were not automatically generated.
Obtaining legal assistance
2.16The committee explored the Inspector’s decision to obtain legal assistance:
It became clear to me very early on that I needed assistance because, as you may well know, I am in a part-time role. I'm assisted by a very able director and a very able administrative officer, but—I'm small. So I engaged barrister Trent Glover, as he then was—he's now senior counsel—to assist me. When my views became clear as to the management or otherwise of the conflict of interest, I was acutely conscious of the seriousness and ramifications and believed that the public interest would be best served by me engaging an administrative law expert and very well-regarded former federal court judge to get his view of the material.
2.17In relation to resourcing for this function, the Inspector confirmed:
I knew I had sufficient in my budget, because I had underspent on staffing and various other things. So I knew I had the money, but I wasn't sure precisely how much I'd need. I knew I had at least some of it. I approached the chief financial officer of the AGD, and he immediately said I'd have whatever I needed.
Information provided by the NACC
2.18Mr Furness confirmed that she asked the Commission to provide her with ‘everything they got from the royal commission, everything they considered and any material they generated, effectively, as a result of their work’. She also asked for a detailed chronology. In describing the cooperation of the Commission, the Inspector reported:
They certainly provided me with an awful lot of documents, and they provided me with the hyperlinked chronology, for which I was grateful. They provided me with further documents as I sought them.
Recommendation
2.19The committee sought further information on the process that led to the Inspector’s recommendation that the decision of the NACC in relation to the Robodebt referrals be re-evaluated.
2.20The committee asked the Inspector to take it through the timeframe and considerations in relation to making her recommendation:
I made the decision to make the recommendation. That was because in terms of legal principle, which has some application, normally when a decision is set aside, if you like, then someone has to make the decision. Clearly someone had to make the decision. In my view, it couldn't be the commission as it was then involved in the decision-making. So it had to be someone else. There was a provision under the act for that to occur, so I recommended in the draft report, which I sent on 3 September, that the commissioner delegate it to an appropriate person. I never changed my mind after that. In their response—which was, from memory, on 8 October—I'm not sure with which set of submissions they effectively accepted it, but it was, without question, accepted. Then, I suppose, it was in the submissions of late October, maybe the 28th, that it was first stated that they were not waiting for the end of my inquiry but had decided to appoint an eminent person. 'Eminent' was their word, not mine. Then I reported on 30 October, and within a minute or two the media release popped up, which indicated the same thing—that they had independently determined, without waiting for my investigation to be concluded, that they would appoint an eminent person. That's the timeframe.
2.21Ms Furness added that the implementation of the recommendation is a matter for the NACC. Nevertheless, her concern ’is of principle and consistent with the report: that, however they do it, there is no input from any of those involved in the decision-making process within the commission to that person’.
2.22She further explained how she understood this could be achieved as ‘the decision can be based only on the referred material’:
As I understand it, someone appropriate will be appointed. That person will then, independently of the commission—other than receiving the material—come to their own view and express it.
2.23Elaborating on the process of appointment, the Inspector offered the following view:
…as to the process, I can understand the point of view that those engaged in the first lot of decision-making not be involved in choosing the person; that's an available position. Practically, for me, that person will inevitably be of such standing that I would expect that person to deliberately not engage with any one of the first decision-makers.
2.24On 13 December 2024, the NACC announced its appointment of Mr Geoffrey Nettle AC KC to ‘independently assess the referrals and decide whether, and if so how, the Commission should deal with any corruption issues arising from the referrals’.
Consideration of the public interest
2.25As the Commission’s considerations included the public interest, the committee sought Ms Furness’s view on this aspect:
I certainly think that the public interest in the NACC is in it detecting and exposing corrupt conduct. Of course there are other education and corruption-prevention functions under the act. However, as I think Mr Brereton indicated, there is an integrity framework in the Commonwealth, and various people play various parts, in terms of the APSC giving general advice and the other components of it. What the National Anti-Corruption Commission has that the others don't have is making a finding of corrupt conduct. That's why I say detecting and exposing corrupt conduct is—particularly with respect to the commission—within its functions and its role in relation to the broader integrity framework.
2.26Ms Furness elaborated on why a finding of corrupt conduct matters:
In answering that question, I might have regard to my other hat, which is as Inspector of the Independent Commission Against Corruption in New South Wales. That body doesn't have, never has had and has never sought to have, as far as I'm concerned—certainly in more recent times—any power other than to refer for consideration to the DPP if they think there may well be some criminal conduct. Generally, they make findings of corrupt conduct. They consider that to be their role, and I consider that there's public benefit in a finding of corrupt conduct based on my experience with the ICAC, my understanding of how they work and the results of their work.
Establishment
Services provided by AGD
2.27An MOU between the Inspector and AGD was executed on 30 August 2023 and provides for enabling services to support the Inspector. This includes support in relation to finance, security, HR and IT systems. Under the MOU, the agreed cost of services provided by AGD for 2023-24 was $114,528.
Budget and finances
2.28For 2023-24 the Inspector was allocated a budget of $1,352,958. After overheads of $114,528 (to AGD) this provided $1,238,430 to cover the Inspector’s remuneration, staff remuneration and other costs. The actual spend for 2023-24 was $684,405 with the underspend partly due to not commencing with the full staffing profile that was expected.
2.29At the public hearing the Inspector advised the committee:
My budget allocation for the next three financial years until 2026-27 on current workload is adequate, however, that may well change depending on the volume and complexity of complaints.
2.30Ms Furness spoke about the process for setting her budget:
I was obviously consulted before the initial budget was set and I had a significant role in splitting up what I might need in different divisions, if you like, and was perfectly happy with the amount. From memory it was over a million dollars—maybe $1.3 million. As you can see, I'm a very small operation. With my New South Wales hat on—I have an office in New South Wales—there is an arrangement whereby the Commonwealth pays the state a small amount of money so I sit in the same office for both purposes. So I don't have much by way of overheads.
2.31The Inspector added that in terms of engaging with the Chief Financial Officer of the AGD, ‘I have never felt, and don't anticipate I will feel, any constraints in terms of having the resources I need’.
Staff
2.32The Inspector is assisted by two full time staff who are employees of AGD but work solely at the direction of the Inspector. Additional assistance is provided by other AGD staff on an ad-hoc or temporary basis as required.
2.33Ms Furness provided further detail at the public hearing:
I am assisted by 2 full-time staff; a Director and Administration Officer. Those staff occupy Australian Government Solicitor premises in Brisbane. Further assistance is provided by other Attorney-General's Department (AGD) staff on an ad-hoc or temporary basis, as required.
Premises
2.34The Inspector occupies premises in Sydney which are managed by the NSW Premier’s Department and also used for her part time position as Inspector of the Independent Commission Against Corruption. Appropriate measures have been put in place to ensure the confidentiality of information.
Conclusion and committee view
2.35The establishment of the National Anti-Corruption Commission has been a significant endeavour. As a new agency, it had to be ready on 1 July 2023 and have people and processes in place to respond to the large number of referrals received from its first day of operation. The committee has commended the efforts by the Commission to achieve this readiness and manage the large number of initial referrals.
2.36As a new agency, the Commission is fortunate to have an Inspector who brings so much experience to her role. The work detailed in the annual report and discussed at the public hearing confirms the committee’s view that the functions of the Inspector as set out in the NACC Act are working well. The annual report shows that the Commission is responsive to issues raised with it by the Inspector.
2.37The committee notes that the issue raised in the annual report in relation to public interest disclosures is under consideration and that it is expected that this issue will be clarified by the next reporting period.
2.38The complaints received by the Inspector in relation to the decision by the NACC not to investigate the Robodebt Royal Commission referrals and the subsequent inquiry and investigation have demonstrated that the processes set out in the NACC Act in relation to the Inspector are effective. The committee thanks the Inspector for her considered approach to this matter, including the quality of her comprehensive and timely report.
2.39The committee asked questions of the Commission and Inspector at the public hearing to understand the processes and considerations around the initial decision. Acknowledging the announcement of Mr Geoffrey Nettle AC KC as the independent assessor of the referrals, the committee will take a cautious approach and wait for the finalisation of the reconsideration process as recommended by the Inspector and any investigation before considering whether there is a need to undertake any further review.
2.40The committee thanks the Inspector for her assistance to and engagement with the committee to date.
Senator Karen Grogan
Chair