Commissioner Paul Brereton is digging in and claims he didn’t breach recusal common law when he “recused” himself from decision making for the “Robodebt 6” referrals while he still “retained visibility of significant steps taken” in relation to the Robodebt Royal Commission referrals and “contributed his own views on some issues when requested or when he considered appropriate”.

Background to Commissioner Paul Brereton’s “recusal”

The NACC released a statement on the 6/6/24 saying the NACC would not investigate 6 people that had been referred to the NACC for alleged corruption by the Robodebt Royal Commissioner Catherine Holmes. One of the 6 included NACC Commissioner Paul Brereton’s good friend Kathryn Campbell. It was a blatant cover-up by the NACC.

The NACC said Paul Brereton had recused himself from the decision making. (Click here to read more)

On the 13/6/24 the Inspector of the National Anti-Corruption Commission, Gail Furness SC, announced that she will investigate the NACC for alleged “corrupt conduct” regarding the Robodebt cover-up. (Click here t read more)

NACC documents obtained via a Freedom of Information application that were published on Twitter on the 8th of August 2024 and answers that the NACC gave to questions from The Guardian on the 15th of August 2024 showed that Paul Brereton had not recused himself from the Robodebt matter. (Click here to read more)

I sent evidence to the Inspector of the National Anti-Corruption Commission on the 20th of August 2024 regarding Paul Brereton’s claimed “recusal”. (Click here to read more)

Below is the email I sent the NACC media team with questions, and their response is below that.

Below is the email to the NACC media team on Tuesday the 3rd of September 2024:

From: SHANE DOWLING
Sent: Tuesday, 3 September 2024 8:37 AM
To: NACC Media
Subject: Media questions – Shane Dowling KCA

Dear Sir / Madam

I am an independent journalist, and I have a few questions regarding NACC Commissioner Paul Brereton.

Background to the questions

The NACC told the public and Attorney-General Mark Dreyfuss that Commissioner Paul Brereton had recused himself from the Robodebt decision making.

But on the 15th of August 2024 The Guardian published answers the NACC gave to various questions and the NACC admitted:

Commissioner Paul Brereton “retained visibility of significant steps taken” in relation to the Robodebt Royal Commission referrals, and “contributed his own views on some issues when requested or when he considered appropriate”. (Click here to read the article)

If that is correct, then it puts Commissioner Paul Brereton in blatant breach of recusal precedents such as the Australian High Court’s judgment in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 and the judgment in R. v Magistrates’ Court at Lilydale; Ex parte Ciccone [1973] VR 122.

Questions

1. Given Commissioner Paul Brereton is a former NSW Supreme Court judge, and would know recusal common law and precedents extremely well, why did he blatantly breach recusal common law?
2. Given Commissioner Paul Brereton’s blatant breach of recusal common law will he be resigning as NACC Commissioner in the near future? If not, why not?
3. Did any other staff advise Commissioner Paul Brereton that he was breaching the law by failing to legally recuse himself from the Robodebt matter?

Please respond by 5pm today in case I have further questions and so I can publish.

Regards

Shane Dowling

The NACC media team responded as per below:

From: NACC – Media
Sent: Tuesday, 3 September 2024 4:50 PM
To: SHANE DOWLING
Subject: RE: Media questions – Shane Dowling KCA [SEC=OFFICIAL]

OFFICIAL

Good afternoon,

Recusal is the act of declining (or refusing) to be the decision-maker in a matter.

Commissioner Brereton stated that he would recuse from decision-making. As the documents you refer to demonstrate, the Commissioner declined to be the decision-maker in relation to the Robodebt Royal Commission referrals and delegated the matter to a Deputy Commissioner.

Although recusal in the context of judicial decision making is not directly applicable to a decision of the Commission whether or not to commence an investigation, the precedents to which you refer do not support any different view.

NACC Media

(Above are 3rd from left Paul Brereton, 3rd from right Kathryn Campbell and her husband Paul Brennan 2nd from right)

NACC response analysed by me

The NACC’s response to my questions does not pass the pub test. But more importantly it doesn’t pass the recusal “double might” test as outlined on The Judicial Commission of NSW’s website as per below.

The NACC says “Recusal is the act of declining (or refusing) to be the decision-maker in a matter”, which is true.

But that does not mean if you recuse yourself from a matter as “the decision-maker” that you then can join the decision making team and/or process which is what Commissioner Paul Brereton did when he “retained visibility of significant steps taken” in relation to the Robodebt Royal Commission referrals and “contributed his own views on some issues when requested or when he considered appropriate”. (Click here to read the article)

How recusal law applies to Commissioner Paul Brereton and his claimed recusal

The key issue with a judge recusing themselves from a matter is not what they did or didn’t do. It’s the perception of bias, or apprehended bias, and it’s what the average person would think the judge might have possibly done.

The Judicial Commission of NSW website says:

The test for determining whether a judge should disqualify himself or herself by reason of apprehended bias is the objective “double might” test: “whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide [emphasis added]”: Johnson v Johnson (2000) 201 CLR 488 at [11], affirmed in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 (Click here to read more)

The main concern with Commissioner Paul Brereton having knowledge of the details of the “Robodebt 6” referrals is that he might leak it to his friend Kathryn Campbell and as a former NSW Supreme Court judge Paul Brereton would know that, yet he still stuck his nose in anyhow.

The three NACC Deputy Commissioners, Ms Nicole Rose PSM, Dr Ben Gauntlett and Ms Kylie Kilgour would have also known that Commissioner Paul Brereton should have been nowhere near the matter. But, based on the FOI documents, they didn’t say anything about him sticking his nose into the details. (Click here to read the full article)

Let’s break the recusal up to 3 parts

1. Using the “double might” test, Commissioner Paul Brereton recused himself from dealing with the “Robodebt 6” because he knew one of the Robodebt 6 “well” which we know from my reporting was because of his relationship with Kathryn Campbell.

Now lets look at Commissioner Paul Brereton when he “retained visibility of significant steps taken” in relation to the Robodebt Royal Commission referrals and “contributed his own views on some issues when requested or when he considered appropriate”.

2. Does Commissioner Paul Brereton, when he “retained visibility of significant steps taken” in relation to the Robodebt Royal Commission referrals, pass the “double might” test given he knows Kathryn Campbell well? Of course not!

3. Does Commissioner Paul Brereton, when he “contributed his own views on some issues when requested or when he considered appropriate”, pass the “double might” test given he knows Kathryn Campbell well? Of course not!

The bottom line

This website is a judicial corruption website and as you would expect I have written about judicial recusal dozens, if not hundreds, of times. I would be one of the top journalists in Australia when it comes to recusal law via the fact it is something I have written about regularly since 2011.

I have also filed and argued my own recusal applications in the NSW Supreme Court during Kerry Stokes 8-year war of law against me.

Recusal law is not complex, and because it is not complex I can tell you for a fact that Commissioner Paul Brereton and the NACC know Brereton breached recusal common law as per the precedents I quoted above.

But for now, they are digging in and standing by their claim that Commissioner Paul Brereton recused himself.

If the Inspector of the National Anti-Corruption Commission, Gail Furness SC, hands down a judgment like she should then Commissioner Paul Brereton will be gone.

But if Gail Furness SC decides to support Commissioner Paul Brereton then it is up to the politicians (Labor, Liberal and the Nationals who want a corrupt NACC) who will decide Commissioner Paul Brereton’s fate. And likely Gail Furness’s fate as well as her position would become untenable after such a scandalous judgment.

I can’t see the politicians wanting to take the heat from the public 8 months out from a federal election when it is so obviously corrupt.

I’ll keep following up.

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