The re-investigation of the “Robodebt Six” ended in a whimper, and in the process, the NACC failed in its mission. Again. Paul Begley reports.
When the National Anti-Corruption Commission was established in 2022, the Albanese Government committed $262 million over four years to set the body up and resource it, followed by additional funding injections of approximately $67 million each year from 2025 to enable it to maintain its capabilities and fulfil its functions.
By 2025, the NACC’s staff allocation was in the order of 220 employees on a growth trajectory heading to an optimum of 270. Its organisational structure consists of a commissioner, three deputies commissioners, and a chief executive officer. Six general managers report to the CEO, and are in turn responsible for capabilities that include legal, evaluations, investigations, corruption prevention and public relations. The commissioner and CEO are jointly responsible for governance.
A recent article points out that the Albanese Government’s picks for the three NACC deputy commissioner positions were made at the lowest possible threshold of eligibility, raising questions about whether the anti-corruption body was set up for failure at the outset. That question has recently been put to the test.
Holmes’ letter to Hurley
At the conclusion of the Robodebt Royal Commission, Commissioner Catherine Holmes sent a sealed document to the Governor General containing the names of five senior public servants and a sixth person whom Holmes referred in her covering letter “for civil action or criminal prosecution”. Chief among them were the scheme’s originators, former Prime Minister Scott Morrison and Department of Human Services Secretary Kathryn Campbell.
Two years later, the NACC found that no further action was required to pursue the six, a decision later overturned.
For reasons she may one day decide to reveal, Holmes referred those six individuals to the fledgling NACC rather than to the Commonwealth Director of Public Prosecutions (CDPP), which in hindsight may have been the better option.
The ‘wisdom’ of Kilgour
In March this year, Deputy Commissioner Kilgour released her reinvestigation report of the NACC’s 2024 decision on the ‘Robodebt six’ under the title of Operation Myrtleford. Her report set out details of the 39 witnesses from whom she heard evidence given in secret hearings. Her evaluation of that evidence and the conclusions she drew from it has been shown ($) to be naïve at best, if not grossly incompetent.
The deputy commissioner’s work profile describes an ambitious middle-level bureaucrat with a law degree, but falls well short of a properly qualified person to conduct a critical re-investigation
which effectively puts Australia’s anti-corruption body itself on trial.
Setting aside the fact that Holmes had expressly referred the Robodebt six for civil action or criminal prosecution, Kilgour asserted that Holmes could not have made such a referral because decisions of that order are for the CDPP to make. Having made that observation, Kilgour brazenly took upon herself the role of public prosecutor in deciding what amounted to a ‘requisite standard’ to be put before a court. This is the relevant paragraph, the emphasis in bold is hers:
“Ministers and senior public servants should have known that income averaging based on ATO data was an unreliable basis upon which to raise and recover debts from social security recipients. However, it is quite another thing to be able to prove to the requisite standard that they actually knew that the operation of the Robodebt system was unlawful. There is little in the materials to indicate that the evidence rises to that level. I am reminded of the aphorism that, given a choice between a stuff-up (even a massive one) and a conspiracy, one should usually choose a stuff-up.”
The sentences she chose to highlight allude to the received ‘wisdom’ that when looking at a set of circumstances that might be described as either a stuff-up or a conspiracy, the former is a more likely explanation than the latter.
Flouting basic principles of investigation
It hardly needs saying that one of the core purposes of an official investigation by a taxpayer-funded anti-corruption body with significant investigative powers and abundant resources is to distinguish between stuff-ups and conspiracies.
It’s a reasonable expectation, therefore, to assume a competent investigator would use those powers and resources to arrive at an evidence-based conclusion with an acceptable degree of certainty or probability, or provide cogent reasons for being inconclusive. Instead of doing that, Kilgour resorted to
the lubricated gut feeling that might be found emanating from an arbitrary barfly at a bush pub.
Making a determination on that distinction is especially necessary when the main players in the investigation made considerable personal gains at great public cost to the lives of half a million defenceless citizens. The citizens suffered greatly, and many have not recovered. An unknown number of people suicided.
In addition, many Australian citizens have distinct memories of hearing witness testimonies of the perpetrators during live-streamed public hearings of the Robodebt Royal Commission, hearings which depicted them in a damning light.
If the Operation Myrtleford investigation were to have somehow enabled those witnesses to present themselves in a more benign light, it was imperative, at least, that the evidence given to Kilgour’s NACC investigation be heard in public hearings rather than in secrecy.
As the NACC lurches from one dysfunctional misadventure to another with no achievements of substance to its credit after three years of existence, Australian taxpayers can legitimately ask whether there is any point persisting with a national institution ostensibly safeguarding honesty in the public sector, when the most pertinent question it faces goes to its own integrity.
“Enough is enough”. Why Brereton *has* to resign from the NACC
Paul Begley worked in public affairs roles for three decades, most recently as general manager of government and media relations with the Australian HR Institute.