‘Wild conspiracies’: Anti-corruption boss under fire over potential conflicts of interest

The head of the National Anti-Corruption Commission says he believes he is being targeted by people trying to stymie criminal investigations into alleged war crimes committed by Australian soldiers, sparking a surge in complaints about potential conflicts of interest and his recusal from all defence-related matters.

The inspector overseeing the integrity watchdog, Gail Furness, revealed on Thursday that she has received 90 complaints since the start of July about potential conflicts of interest involving National Anti-Corruption Commission (NACC) chief Paul Brereton and defence matters that have been referred to the commission.

Brereton also told a parliamentary inquiry that he has conducted around 24 hours of unpaid work for the Inspector-General of the Australian Defence Force (IGADF), including during regular business hours, while running the integrity body.

Brereton last year stared down calls for him to quit over a finding by the NACC inspector that he failed to adequately manage a declared conflict of interest in relation to a past professional association with someone referred to the NACC over the robodebt scandal.

Before being appointed as the NACC’s inaugural leader, Brereton chaired the landmark inquiry into alleged war crimes committed by Australian troops in Afghanistan.

Brereton’s four-year inquiry, handed down in 2020, found “credible” information to implicate 25 current or former Australian special forces personnel in the alleged unlawful killing of 39 individuals and the cruel treatment of two others in Afghanistan.

A federal judge later found decorated soldier Ben Roberts-Smith was complicit in war crimes in Afghanistan on the balance of probabilities in a civil law defamation suit against The Sydney Morning Herald and The Age.

Brereton, a former NSW Court of Appeal judge, continues to hold a position as major general in the ADF Reserves, as well as honorary appointments as Colonel Commandant of the Royal New South Wales Regiment and the University of New South Wales Regiment.

Labor, Coalition and Greens senators expressed frustration that Brereton’s ongoing defence ties had undermined public confidence in the NACC when it needs to establish its legitimacy as the new federal integrity watchdog.

One of Brereton’s deputies also revealed she had pushed her boss to recuse himself from all defence-related matters, a move he initially regarded as unnecessary.

Brereton said he had continued to advise Defence’s inspector-general on the implementation of his report into alleged war crimes because he has “unique knowledge of the Afghanistan inquiry which cannot be sourced elsewhere”.

“It would be a waste of time and resources, and utterly unreasonable, if the [inspector-general] could not in furtherance of implementing my recommendations, seek to obtain information from me,” he said.

“The only persons who would benefit if I did not do that are those who don’t want the recommendations to be implemented, or don’t want the Office of the Special Investigator, who is responsible for the criminal investigations that I recommended be instituted, to be able to do their job.”

Greens senator David Shoebridge labelled Brereton’s statement “extraordinary” during the hearing and later said: “It gives me little confidence in the quality of the commissioner’s decision-making when he floats wild conspiracy theories, without a shred of evidence, to try and explain away the sheer number of complaints against him.”

Brereton said: “I’m not making an extraordinary assertion, I’m simply suggesting there are those who have an interest in me not being able to assist the IGADF...As I said in my opening statement, the only people who will benefit if I do not do this work are those who do not want my recommendations to be implemented.”

Committee chair and Labor MP Kate Thwaites said she was concerned about the 90 complaints lodged with NACC inspector Furness about Brereton’s defence ties, saying the figure could suggest “a lack of public confidence in the NACC and the independence of the institution”.

Furness said she had engaged legal counsel to help her examine complaints from the public about the NACC, including Brereton’s defence ties. Her review of the documents will take “months, not weeks” and will require sorting through thousands of pages of documents, she said.

“The commentary I receive ranges from personal insults to systemic and policy matters, but generally speaking, the approach of those to me is that their sense of trust and faith, if you like, in the corruption agency dealing appropriately with defence matters is diminished by what they see and read about defence connections,” she said.

Brereton said a “fringe” website had encouraged people to make complaints against him based on media reports.

“So I do think it is very easy to put too much weight on the number of complaints that have been made,” he said.

The NACC announced on October 31 that Brereton would step away from all defence-related corruption referrals following growing questions about perceived conflicts of interest.

Brereton said stepping back from all referrals related to defence had been “very difficult” and “emotional” for him because of his experience in the area.

“I actually think I add to those defence matters because I know not so much where the skeletons are, but I know how to go and look around the place and to find things in defence, I know the lines of inquiry to follow,” he said.

“I would have thought that the Afghanistan inquiry demonstrated pretty clearly that I was able to be independent, robust, even fierce in pursuing misconduct in defence.”

Deputy commissioner Nicole Rose said she understood Brereton’s view that it was not strictly necessary for him to recuse himself from all defence matters, only those that related to a specific potential conflict.

“However, I pushed quite strongly for recusal from all defence matters because I think that the perceptions of the conflicts [of interest] have become an issue for the agency, and I think that that is absolutely the best course of action going forward,” she said.

“I think the recusal from the defence matters in entirety is absolutely the right decision for the commission. I don’t believe that the commissioner has real conflicts in many of those referrals.”

Deputy commissioner Ben Gauntlett said: “I believe the recusal was necessary given the status of the commission at the time relative to the public opinion.”

Liberal Senator Sarah Henderson argued that Brereton should perhaps not have taken on his NACC role if he needed to continue providing advice to the ADF Inspector-General.

“I would put to you that your role commissioner, your role is unique in this country,” Henderson said.

“You are the commissioner of the National Anti-Corruption Commission, and any perception of any conflict of interest surely is an issue.”

Henderson argued Brereton’s initial view that he did not need to recuse himself from all defence matters showed a “fundamental misunderstanding” of the nature of potential conflicts of interest.

“Tell me what the conflict is,” Brereton shot back, saying he had stepped down from all defence matters because he believed it was distracting from the commission’s work.

Liberal MP Henry Pike asked Brereton what he would rate the NACC out of 10 in its two years of existence. “I’d be thinking around the seven mark,” Brereton said.

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