Paul Brereton: NACC chief told to choose between war crimes investigations or corruption fight

Anti-corruption commissioner Paul Brereton — the former judge who investigated war crimes allegations against the SAS — was told by Liberal MP Sarah Henderson today he should have chosen between leading the National Anti-Corruption Commission or helping the agency pursuing military veterans.

Mr Brereton defended his decision to do both even though his fellow anti-corruption commissioners worried he was exposing the NACC to perceptions of bias by working with the Inspector-General of the Australian Defence Force while overseeing corruption investigations into the defence forces.

“It’s not appropriate, at all, that you should be providing any advice to the Office of the IGADF,” Senator Henderson told Mr Brereton at a meeting of the parliamentary committee overseeing the NACC.

Mr Brereton said it would be “utterly absurd” if he could not help investigators locate the evidence for assertions made in a 465-page report on the SAS and other units he provided to the military in 2020.

“That’s the nature of what I’m being asked to do and it’s fundamentally about a four-and-a-half-year inquiry that only I can answer those questions about,” he said.

Senator Henderson replied: “Well, if your role on that inquiry is that critical in terms of your ongoing role advising the IGADF then perhaps you shouldn’t have taken on the role that you’re currently occupying as commissioner.”

Watchdog received ninety complaints

Mr Brereton’s finding that Australian soldiers committed war crimes during the 20-year Afghan war devastated the army and led to the creation of an agency, the Office of the Special Investigator, which has spent more than $200 million investigating 19 veterans, mostly from the elite Special Air Service Regiment. One has been charged.

On Thursday morning the NACC watchdog, barrister Gail Furness SC, disclosed she had received 90 complaints in the past five months about Mr Brereton, who agreed to take on the job running the agency if the Government allowed him to remain a general in the Army Reserve.

“The approach of those to me is that their sense of trust and faith in the corruption agency dealing appropriately with defence matters is diminished by what they see and read about defence connections,” Ms Furness said.

The NACC has handed over 400 pages of documents relating to the complaints, she said.

Two months ago Mr Brereton agreed to remove himself from any corruption investigations into the military after his IGADF work became public, raising the possibility Australia’s top corruption investigator could have a conflict of interest.

The NACC said at the time it considered the recusal step “unnecessary” but had gone ahead to remove any doubt about its independence.

‘Difficult and emotional’

Mr Brereton told the committee he made a “very difficult and emotional decision to step away from” from overseeing any military investigations. He said he did not tell his three deputy commissioners or the NACC chief executive about his IGADF work because it was “informal and confidential”.

“Do you not understand ... that clear, public, transparent disclosures of actual and perceived conflicts of interest is the minimum expectation for the public sector?” Greens senator Michael Shoebridge asked.

“If a judge recuses from a case they do not have to disclose why they are recusing,” Mr Brereton replied.

Asked if she believed the recusal was unnecessary, one of Mr Brereton’s deputy commissioners, Nicole Rose, appeared to suggest 45 years in the military had left with Mr Brereton with conflicts of interest over some investigations.

“I don’t believe the commissioner has real conflicts in many of those referrals,” she said. “I think it is only a small percentage in which he knows the people involved.

“I pushed quite strongly for recusal from all defence matters because I think the perception of the conflicts have become an issue for the agency.”

Misconduct finding

In 2024 Ms Furnell, the NACC inspector, said Mr Brereton committed misconduct when he got involved in an investigation into six people referred to the NACC by a royal commission into what is known as “Robodebt”. Mr Brereton knew one of the accused through work.

Mr Brereton said he assisted the IGADF 22 times over the three years he has led the NACC, mostly in his private time. The complaints about him followed critical coverage on a “fringe website” that encouraged readers to complain to the NACC inspector, he said.

“Who benefits from me not doing work for the IGADF?” he asked the committee.

Senator Shoebridge criticised Mr Brereton for what he said was a “pretty extraordinary response”.

“Do you have evidence to that effect?” the senator asked.

“The only people who will benefit if I do not do this work are the people who do not want my recommendations to be implemented,” Mr Brereton responded.

Senator Shoebridge said: “You understand there is very real concerns about a particular conclusion in your Afghan report that senior commanders should not be held accountable?”

“I did not say that,” Mr Brereton replied.

Among military veterans, there was anger at Mr Brereton’s finding in the 2020 report that senior commanders were unaware of the murders of 39 Afghans, a conclusion that was seen as absolving most officers of blame.

AFP meeting

Many of the war crimes allegations about the SAS and its best-known soldier, Ben Roberts-Smith, were published by journalists Nick McKenzie and Chris Masters.

A document revealed this week by the Australian Federal Police under the freedom of information law said the two journalists met with former Australian Federal Police commissioner Mick Keelty in July, 2018, and “warned him that as an eminent Australian he should be careful about supporting Mr Roberts-Smith”.

“By his own account, receiving this information gave Mr Keelty cause to pause in relation to his contact with Mr Roberts-Smith,” the document said.

A month before the meeting at the Sheraton hotel in Sydney the reporters accused Mr Roberts-Smith of war crimes in The Age, the Sydney Morning Herald and Canberra Times.

Mr Keelty, who was accused of compromisAing a police investigation by passing on information, said he offered personal support to Mr Roberts-Smith out of a concern for his welfare.

Mr Roberts-Smith’s lawyer declined to comment.