Anti-corruption experts are alarmed by the National Anti-Corruption Commission’s apparent plans for one of its deputy commissioners to be involved in the investigation of the six officials referred to it by the Robodebt Royal Commission.
Anthony Whealy KC, chair of The Centre for Public Integrity, said that all of the NACC’s deputy commissioners were “arguably tainted” and should not be involved in any way.
He added that a “truly independent person” must also conduct the investigation, particularly given the “substantial damage” the decision not to investigate the referrals from the Robodebt Royal Commission had done to the NACC.
The deputy commissioner being lined up for the investigation, Kylie Kilgour, joined the NACC in February 2024. She worked alongside Commissioner Brereton, deputy commissioners Nicole Rose and Ben Gauntlett, and other senior NACC staff in the final months spent crafting the public statement that explained why the NACC would not investigate the six officials. She was also involved in the editing of, and discussions regarding, the letters that were sent to the Robodebt 6 advising them they were not going to be investigated.
Ms Kilgour was included in emails dating back to at least March 2024 from Commissioner Brereton outlining changes he wanted made to the public statement and the letters.
NACC Inspector Gail Furness, who conducted an inquiry into the NACC’s refusal to investigate the six officials for corruption, also referred to all three deputy commissioners being involved in editing the public statement.
We put a series of questions to the NACC. It refused to answer any of them, even those of basic accountability, including whether the investigation into the six public officials has started.
The Robodebt referrals from the Royal Commission
It has been nearly two years since the NACC received the Robodebt referrals on 6 July 2023. Eleven months after that, on 6 June 2024, the NACC released a two-page statement announcing it would not investigate the referrals.
The public outcry was immediate; more than a thousand complaints were lodged with the NACC Inspector’s office. NACC Inspector Gail Furness, who is independent of the NACC and the Federal Government, quickly opened an investigation into the NACC’s handling of the matter.
She found that NACC Commissioner Brereton had not appropriately handled his conflict of interest with Referred Person 1, now generally accepted to be Kathryn Campbell, with whom he said he had a “close association” and who was “well known to me”. Mr Brereton delegated to deputy commissioner Nicole Rose the decision making on whether the NACC should investigate the referrals.
Inspector Furness said that in addition to appointing a delegate, the commissioner should have removed himself from related decision-making processes and limited his exposure to the relevant factual information. “This was not done.” She found that the commissioner’s involvement was “comprehensive, before, during and after the 19 October 2023 meeting at which the substantive decision was made not to investigate the Robodebt referrals”.
Ms Furness recommended that the NACC’s decision be reconsidered by an independent person. That person, former high court judge Mr Geoffrey Nettle KC, overturned the NACC’s decision, finding that each of the six referrals raised a corruption issue and that all should progress to corruption investigations.
Mr Whealy said:
As we look back on this unfortunate affair, it must be conceded that the damage to the NACC has been substantial. The Nettle reassessment has determined that the agency must investigate the six referrals… But who at the NACC could preside over the investigation?
Should Kylie Kilgour be involved?
In a media release in February, the NACC obliquely raised the prospect of deputy commissioner Kylie Kilgour being involved in the investigation, but documents recently released under Freedom of Information (FOI) laws make it explicit.
The NACC’s media release, headlined: National Anti-Corruption Commission to investigate Robodebt referrals, stated:
As a result of the decision made by its independent reconsideration delegate, Mr Geoffrey Nettle AC KC, on 10 February 2025, the Commission will investigate the 6 referrals it received from the Royal Commission into the Robodebt Scheme. The purpose of the investigation is to determine whether or not any of the 6 referred persons engaged in corrupt conduct.
The release ended with this ambiguous sentence (emphasis added):
The Commissioner and those Deputy Commissioners who were involved in the original decision not to investigate the referrals, will not participate in the investigation.
Compare that sentence with the clarity of Philip Reed, the NACC CEO, in his all-staff email the same day (emphasis added):
The Commissioner and Deputy Commissioners Rose and Gauntlett will not participate in the investigation.
Mr Reed’s email was included in the documents released by the NACC under FOI laws in April.
Mr Whealy believes Mr Reed’s email, in conjunction with the media release, raises “a worrying ambiguity”.
The Robodebt investigation must be undertaken by an independent person with no connection to the NACC. There is a truly serious conflict of interest between the commissioner and referred person 1 in the proposed investigation. Given the history of the matter, that conflict can be avoided only by a truly independent person conducting the investigation.
Kylie Kilgour joined the NACC from Victoria’s Independent Broad-based Anti-Corruption Commission on 12 February 2024. This was almost four months before the NACC released its controversial public statement and two months before DC Nicole Rose recorded the final decision on Robodebt.
As a deputy commissioner, Kilgour joined the NACC’s top decision-making body – the NACC Senior Assessment Panel – which includes the commissioner, deputy commissioners and some senior staff.
She was involved at the highest levels in discussions about the public statement and the letters to the six officials, according to Alan Robertson KC, who wrote a report for NACC Inspector Furness’ investigation (emphasis added):
On 29 March 2024, the Commissioner emailed to Deputy Commissioners Gauntlett, Rose and Kilgour a revised draft public statement. He said, relevantly: …
Attached is a slightly revised draft letter and public statement. The main change is that rather than just listing relevant considerations… I’ve structured them in a way that shows which were more important and prevailed. I’m very happy to receive any further suggestions or comments.
Inspector Furness’ October 2024 report also referred to all three deputy commissioners being involved in the editing of the public statement.
“Even though the wording of the reasons had occupied the time of the Commissioner, the Deputy Commissioners and a number of senior staff since 19 October 2023, that is for over six months, the [public statement] still contained this misleading reason*.”
Mr Whealy said that all those discussions among senior NACC officials, a number of which involved input by Brereton, “arguably tainted the prospect that any of the deputy commissioners could be involved in the post-Nettle investigations”.
Will Partlett, Associate Professor of Public Law at the University of Melbourne, agreed that no member of the NACC senior leadership should be involved in the investigation.
“A possible way for this investigation to be rendered impartial is for the Commissioner to ask the Minister to appoint an Acting Commissioner to oversee the Robodebt referrals under Section 186 of the NACC Act.”
The illegal Robodebt scheme saw $1.7 billion in debts raised by the federal government against 500,000 Australians receiving social security payments. The scheme caused widespread distress, with some people taking their lives as a result. Robodebt has been judged a “massive failure of public administration” and an “extraordinary saga [of] venality, incompetence and cowardice”.
The names of six officials involved in the scheme who were referred to the NACC by the Robodebt Royal Commission are contained in a sealed section of the royal commission report and have not been made public.
* The NACC’s public statement incorrectly implied that the Australian Public Service Commission could impose sanctions on the five public servants whose names are contained in the sealed section.
Lovely work !
I hope an independent Acting Commissioner will be appointed to head the investigation.