Tuesday 1st of July 2025
Home » Blogs » Gus Leonisky's blog

failure to act....

Before the last election in 2022, the Labor opposition promised to establish an integrity commission that would have a broad jurisdiction and strong investigative powers including the capacity to hold public hearings when it was in the public interest to do so.

This had been widely supported in the community, including by an open letter sent to the then Prime Minister, Scott Morrison, in December 2018, signed by 34 judges (including myself). Three former chief justices of the High Court (Sir Anthony Mason, Sir Gerard Brennan and Murray Gleeson AC) had also expressed their support for commissions being entitled to hold public hearings.

 

The NACC’s refusal to consider Robodebt    By Stephen Charles

 

When the new Labor Government’s Attorney-General, Mark Dreyfus QC, was about to put the Bill to establish the NACC before Parliament in June 2022, the Opposition requested an amendment to Sec. 73, which would have permitted the Commissioner to hold public hearings if it was in the public interest to do so; the Opposition wanted to substitute a provision from the flawed Victorian IBAC legislation which limited public hearings to “exceptional circumstances”. This provision, unique to Victoria, had been strongly criticised by IBAC’s first two commissioners (Stephen O’Bryan QC and Robert Redlich AM QC), both of whom had said publicly that the ability to hold public hearings is critical to the ability of an anti-corruption commission to expose and combat corruption.

Transparency International Australia defines “corruption” as the “abuse of entrusted power for personal, private, or political gain,” and the Coalition, which had been in government from 2013 to 2022, had so deplorable a record for corruption and misconduct that TIA in its Corruption Perceptions Index had dropped Australia’s ranking from seventh in the world in 2012 to 18th in 2022. So the last thing the Coalition, now in opposition, would have wanted is for the NACC to hold a series of public hearings in relation to its misbehaviour while in government.

The amendment to the NACC’s power to hold public hearings to exceptional circumstances was a disastrous reduction in its capacity and no one is surprised that more than 12 months after its establishment in mid 2023, little or nothing has been heard since of the NACC’s investigations.

One of the most significant areas of governmental misconduct in the last decade was the Robodebt scheme which ran from 2015 to 2019. This was investigated by Catherine Holmes AC SC, who was appointed by this government to investigate Robodebt in August 2022, but not the question of whether any persons had been guilty of corrupt conduct. Holmes completed her report in July 2023, but delayed delivery of it until the NACC had been established in order that she could refer to it questions contained in the final volume of her report, which was sealed.

These matters were then considered by the NACC, which decided on 16 April 2024 not to investigate the Robodebt referrals from Commissioner Holmes.

A series of documents obtained from the NACC under FOI show that Commissioner Brereton at the outset concluded he had a personal conflict of interest and, at a meeting on 3 July 2023, he raised it, saying he would delegate decision-making to a Deputy Commissioner. On 11 August 2023, Commissioner Brereton wrote to Dreyfus disclosing that he had a close association with a person and saying he would recuse himself from decision-making concerning that person. It can reasonably be assumed that the person concerned was Kathryn Campbell, a major-general (like Brereton) in the Army Reserve, and a long-term and close friend of Brereton.

The documents also show that Commissioner Brereton took the view that he remained entitled to take part in discussion of the Robodebt referrals and make comments on them, and that this continued until the decision was finally taken in April 2024 not to accept the referrals from Commissioner Holmes.

It is well-accepted law that when a judge decides that he or she has a conflict of interest and that it is necessary to make a recusal from a proceeding, the judge must then take no further part in that proceeding. Commissioner Brereton asserts, (and has done so by letter on 5 September 2024), that this is not directly applicable to a decision of the Commissioner whether or not to commence an investigation. 

In my opinion, there is no justification whatever for this assertion and it is simply wrong. Where a person, in a position such as Commissioner Brereton’s, has a conflict of interest, the purpose of recusal is to prevent others being exposed to that person’s favourable (or unfavourable) view, to assure the outside world that natural justice or fairness has been maintained in the decision whether or not to commence an investigation. In the present case, Commissioner Brereton’s continuing presence, and making of comments on the Robodebt referrals until the moment of the final decision, completely undermined his acknowledgement of the conflict of interest and his supposed recusal. In other words, his “recusal” was without consequence, and would not have prevented him approving the investigation of one of his enemies.

NACC’s primary task is to investigate and report publicly whether nominated persons have or have not been guilty of corrupt conduct. It was no answer to say that these people have already been investigated. What had not occurred was a determination by the only body with the jurisdiction to do so whether the conduct in question constituted “corrupt conduct.” By refusing to act, NACC betrayed its core obligation and failed to fulfil its primary duty.

In the light of the foregoing, it is strongly arguable that the government may not have picked the right person for the job as Commissioner of the NACC.

Commissioner Holmes’s task remains incomplete. If the NACC will not examine the referrals in the final sealed volume, the Attorney-General should now seek her approval to unveil the final volume and release the contents to the public so that we all may know the full extent of Commissioner Holmes’s conclusions in relation to her critically important investigation.

This will also reveal the nature and extent of NACC’s failure to act.

https://johnmenadue.com/the-naccs-refusal-to-consider-robodebt/

 

YOURDEMOCRACY.NET RECORDS HISTORY AS IT SHOULD BE — NOT AS THE WESTERN MEDIA WRONGLY REPORTS IT.

quiet mislead.....

Three months have passed since the National Anti-Corruption Commission promised an “impartial and fair investigation” into Robodebt. Nothing has been heard since, and legal experts question the process. Michelle Fahy and Liz Minter investigate.

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, crafting the public statement that explained why the NACC would not investigate the six officials. Ms Kilgour was also involved in the editing of, and discussions regarding, the letters sent to the Robodebt 6 advising them that they would not 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.

Royal Commission referrals

It has been nearly two years since the NACC received the Robodebt referrals (6 July 2023). Eleven months later, 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 to decide 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 all should progress to investigations.

Anthony 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?”

Kylie Kilgour’s involvement

In a media release in February, the NACC obliquely raised the prospect of Deputy Commissioner Kylie Kilgour being involved in the investigation, but documentsrecently 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.”

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.

 

READ MORE:

https://michaelwest.com.au/deafening-silence-at-flawed-process-nacc-and-the-robodebt-investigation/

 

READ FROM TOP.

 

YOURDEMOCRACY.NET RECORDS HISTORY AS IT SHOULD BE — NOT AS THE WESTERN MEDIA WRONGLY REPORTS IT.

 

         Gus Leonisky

         POLITICAL CARTOONIST SINCE 1951.