Speech
Published:

NACC Deputy Commissioner Kylie Kilgour delivered the following address to the Public Sector Integrity & Governance Conference on 6 May 2025 in Canberra.

 

Thank you for inviting me to be part of this Public Sector Governance and Integrity event today.

I too acknowledge the Traditional Owners of the land on which we are meeting, the Ngunnawal people, and pay my respect to their Elders, past and present, and any First Nations people in the audience. 

Jurisdiction of the Commission

As many of you will (hopefully!) be aware, the Commission commenced operations on 1 July 2023. I’m conscious for a lot of people, you won’t know much more about us than this, so I will start by giving you an overview of our functions and some of our work over the past 18 months and then focus on why ethical leadership and accountability, particularly in decision making, is a key priority for the Commission’s corruption prevention work. 

The Commission’s jurisdiction is primarily concerned with investigating serious and/or systemic corrupt conduct that involves Commonwealth public officials: either by them or affecting their honesty and impartiality. 

‘Public official’ is defined to include Commonwealth parliamentarians (including ministers) (highly topical for this week after an election has been held), and staff members of Commonwealth agencies, and it also includes individuals involved in delivering services to, or on behalf of, the agency under a contract with the Commonwealth. This is around 200 Commonwealth agencies and 380,000 employees and a yet unquantified number of contractors and sub-contractors, including consultants and law firms providing legal services to Commonwealth agencies.

NACC Act, section 17 

Equally as important as our work investigating corrupt conduct, we also have a corruption prevention and education function, which is what leads me to be here today.

The Commission has so far conducted just over 240 engagement activities with a range of Commonwealth agencies and other stakeholders, and is producing a range of factsheets, case studies and other publications, which you can find on our website. We are always keen to work with agencies to help them understand our role, what has to be reported to us, and about corruption prevention strategies. So please feel free to follow up with me with any requests for this after today. 

And we have a range of other statutory functions set out in section 17 of the NACC Act. While I won’t go through them in detail, I am happy to answer any questions about these functions at the end. 

Definition of corrupt conduct

‘Corrupt conduct’ is defined differently in every anti-corruption body’s legislation. The Commission’s definition has had the benefit of being informed by the states’ and territories’ experience and has been drafted fairly broadly. But is not a ‘pub test’ and it is not yet well understood by the public or the people who fall under our jurisdiction (which are many of you in the audience today), so I will just take a bit of time to go over that with you.

Section 8 of the NACC Act defines ‘corrupt conduct’ as a breach of public trust, abuse of office, or misuse official information by a public official. 

In addition, any person engages in corrupt conduct if they do something to cause a public official to behave other than honestly and impartially in performing their public duties, such as offering a bribe or inducement.

This extends to conduct of public officials themselves that affects the honest and impartial performance of their own functions. In fact one of the first NACC investigations that has led to a prosecution and guilty plea involved a Commonwealth public official at Western Sydney Airport seeking to induce a tenderer to a contract for the carpark at the airport to give him a $200,000 bribe to award the tender to that company. We are just waiting on that person to be sentenced later this month in the District Court of NSW.

The definition of corrupt conduct extends to attempting, conspiring or planning to engage in any of those types of conduct, and participating in another’s corrupt conduct. 

You can also think of section 8 of the NACC Act as a pretty good guide to what is clearly not ethical conduct. Stick it up on the wall of your office or your workstation as an aide memoir.

Breach of public trust

I will just briefly speak to the distinction between breach of public trust and abuse of office as it is a question that is often asked. 

In any consideration of whether someone has/is/will engage in corrupt conduct, the starting point is to consider what public powers have been conferred on that public official, and have they exercised them for the public benefit. The public trusts that this is what public officials are there to do. 

It will be a breach of that trust if a power is not exercised honestly for the purpose for which it is conferred.

The concept of a breach of public trust does not depend on personal gain or benefit for a third party. The key feature of a breach of trust is the exercise of a power, or the performance of a function, for an improper purpose.

This could include the use of official powers to advance a personal interest, or applying public resources for a purpose for which they were not appropriated. 

Abuse of office

Often overlapping with breach of public trust, it will be an abuse of office for a public official to use their powers or office improperly to obtain a benefit for themselves or to inflict a detriment on someone else. 

The term is not further defined in the Act, but it is informed by common law notions of misconduct in public office. Misconduct in public office remains a common law offence in New South Wales and Victoria. Under Commonwealth law and in the Code jurisdictions, for example, the Australian Capital Territory and South Australia, misconduct in public office is a matter governed by statutory provisions. 

At common law, dishonesty is not an essential ingredient of the offence of misconduct in public office,[1] but requires an element of impropriety.[2] The impropriety has to be such as to injure the public interest, and serious enough to call for condemnation and punishment.[3] [4] 

However, the Act also provides that conduct may still constitute corrupt conduct even if it were not for the personal benefit of the public official or other persons involved in the conduct (see subsection 8(8) of the NACC Act). 

In the context of an abuse of office, this means that a public official may still abuse their office if the public official intended to cause a benefit that was indirect, intangible (such as political advantage or even friendship), or several steps removed from themselves, or for the benefit of other persons.

What isn’t corrupt conduct

I note that for any of the limbs of the definition of corrupt conduct, mistakes, bad or unpopular decisions, negligent maladministration and monumental stuff-ups, are not in themselves corrupt conduct. Generally speaking, an element of bad faith and/or benefit is necessary to make it corrupt conduct.

Of course, some of this behaviour might cross into what can be considered professional misconduct or otherwise unethical conduct and be sanctioned in other ways, such as through the Australian Public Service Code of Conduct, the Commonwealth Ombudsman or the Australian National Audit Office.

Current work of the Commission

To give you a sense of our current activities, as of 30 April 2025, the Commission:   

  • is completing a number of investigations inherited from the Australian Commission for Law Enforcement Integrity (ACLEI) – which was a much smaller anti-corruption agency focused on around 10 Commonwealth law enforcement bodies
  • is conducting 36 preliminary investigations   
  • is conducting 32 corruption investigations, including 9 joint investigations   
  • is overseeing or monitoring 15 investigations referred by us to other agencies   
  • has 7 matters before the courts  
  • has received 1,875 referrals so far this financial year, and received 3,190 referrals in 2023-24, the majority of which are voluntary referrals from members of the public. We have completed assessing more than 85% of these.
  • there have been 8 convictions as a result of Commission investigations.

Commonwealth Integrity Survey

Another important element of the Commission’s corruption prevention and education work has been to conduct the first detailed voluntary survey of observations and perceptions of corruption at the Commonwealth level. This type of survey has been conducted by other anti-corruption commissions on a regular basis to help shape their corruption prevention priorities. We intend to also do this. 

The survey was made available to over 270,000 public officials between 19 August to 20 September 2024. We received responses from 58,309 of them, which amounts to about a 20% response rate. 

We released the results in December 2024, and some of the key positive results included:

  • 96% of participants felt confident they can identify corrupt conduct in their area of responsibility
  • 88% were willing to report corrupt conduct if they have direct knowledge of it
  • 79% have faith in the integrity of their agency

When asked if they have specific knowledge of corrupt conduct that occurred in their organisation, 15% (8746) of respondents stated ‘yes’. (By comparison, in the 2024 APS Census, when asked if they have witnessed another employee to have engaged in potentially corrupt behaviour, 3% (4212) of respondents answered ‘yes’.[5]  This may reflect that the people who responded to our survey were more motivated to perceive corrupt conduct. 

Also, when respondents were asked to consider 5 particular and fairly common scenarios, there was some misunderstanding as to what constitutes corrupt conduct and what actions should be taken. Only 20% of survey participants provided the right response across all 5 scenarios. So while 96% of participants told us they felt confident they can identify corrupt conduct in their area of responsibility, their answers to these scenarios suggests to us that there is still work to be done in improving understanding of what is and is not corrupt conduct. 

These results are informing our corruption prevention work including the publishing of public reports and case studies on what corrupt conduct looks like in practice. 

The Integrity Survey results are also being used to create tailored information about particular agencies results for senior leaders to use in their work in promoting pro-integrity initiatives at the agency level.

Commonwealth integrity maturity framework

Our Commonwealth Integrity Maturity Framework, published in August 2023, is a useful resource for thinking about what you might need to do about this in your own setting. This is a set of 8 integrity principles with corresponding governance obligations and controls designed to support agencies to review and improve the effectiveness of their organisational integrity frameworks. This can be accessed from our website nacc.gov.au in the corruption and prevention drop down box. 

Commonwealth integrity system

The Commonwealth Government uses a multi-agency approach to promote integrity, transparency and accountability and to prevent corruption, fraud and misconduct. We are the newest part of the Commonwealth integrity system – and while we are an independent statutory authority – we are working closely with many of the other agencies who make up the integrity system, including the Australian Public Service Commission (APSC), who you heard from this morning on the topic of stewardship. 

Other key entities with integrity-related functions include:

A degree of coordination, cooperation, deconfliction and information-sharing is provided by networks and communities of interest, such as the Integrity Agencies Group (IAG) and the Criminal Justice and Law Enforcement Forum (CJLEF).

There has probably never been a better time to work in the Commonwealth Government in relation to the number of integrity bodies and initiatives underway and there is a map of the Commonwealth integrity landscape being developed for release later this year.

APSC Directions

As most of you should be aware from the APSC presentation this morning the APSC administers the Public Service Act 1999, which importantly includes ‘ethical’ as one of the APS Values and defines this as: ‘the APS demonstrates leadership, is trustworthy and acts with integrity in all that it does’.[6] Thus ethical leadership and accountability are core expectations of the APS, at all levels.

The Australian Public Service Commissioner’s Directions 2022 are made under the Public Service Act 1999. The Directions very comprehensively prescribe standards that agency heads and APS employees must comply with to meet their obligations under the Act, including the APS Values (in Part 2 of the Directions). In relation to the APS value of ‘ethical’, the Directions require: 

  1. acting in a way that models and promotes the highest standard of ethical behaviour
  2. following through on commitments made 
  3. having the courage to address difficult issues
  4. complying with all relevant laws, appropriate professional standards and the APS Code of Conduct 
  5.  acting in a way that is right and proper, as well as technically and legally correct or preferable 
  6.  reporting and addressing misconduct and other unacceptable behaviour by public servants in a fair, timely and effective way 
  7. providing leadership in policy development, implementation, program management and regulation 
  8.  supporting systems that give APS employees appropriate opportunities to develop and demonstrate leadership qualities. 

For those of you working in other public service or public sector settings, check your equivalent Public Service Commission’s guidance/directions. Most will have something similar. For those of you who don’t have the benefit of a public service commission, you may want to think about developing similar directions as the above for your context. 

Supporting ethical leadership and accountability

In our work to date, together with other ‘integrity failures’ that have occurred over the past few years, we have observed that in a small number of cases, despite longstanding APSC Values and Directions, some quite senior public officials have failed to make ethical decisions – not all of which technically amount to ‘corrupt conduct’, but the most serious instances often can. 

We are using these examples (using root cause analysis) to develop corruption prevention guidance, starting with a publication to support public officials to make decisions that serve the public interest (and thus guard against corrupt conduct and at the same time promote ethical leadership and accountability) which will be released later in 2025. 

Practices for ethical decision-making

In this guidance the Commission will be suggesting some key practices that can be used to support what we are calling ‘ethical decision making’. 

1. Consider and consult (or the ‘don’t rush and you are not alone’ practice)

Decision-makers often need to balance competing interests, priorities and pressures when navigating ethical dilemmas. So when faced with a decision—especially one with significant consequences—take time to consider and consult with others to aid in the decision-making process. Identify all relevant considerations and discard irrelevant ones. Consulting with others reduces the burden on a single person and allows for shared responsibilities in the decision-making process. 

Departure from established policies or procedures may sometimes be appropriate, especially in novel or dynamic situations, but requires caution. So too can departure from advice and recommendations, for good reason. 

2. Decide based on evidence

Base decisions and advice on the best available evidence and the merits of that evidence.

You cannot make well-informed decisions without a reliable understanding of the environment you are operating in. Seek advice from experts to ensure you have a robust understanding of legislation and best practice. You may not always have all the information you would like, but it is best practice to seek as much evidence-based information as possible.

Be mindful of personal biases when evaluating evidence. Bias can impact your assessment and lead to inaccurate assumptions that can undermine ethical decision-making. 

3. Consider first what is the ‘right’ outcome on the merits, before the practicalities and optics

It is helpful to split the decision-making process into two stages: first, what is called the ‘ethical question’, which is what is the ‘right’ decision; and second the ‘integrity question’, which is whether that decision is implemented. In essence the ‘ethical question’ will be your judgement about the right course of action, which differs to the ‘integrity question’ which is in essence developing your intent to act on that judgement. This separates consideration of the potential reasons for not implementing the ‘right’ decision – which will often involve questions of optics, popularity and reputation - from first identifying the right decision on the merits.

4. Ensure decisions are lawful 

Legality is not optional. Legal advice may be necessary to establish the lawfulness of potential decisions. Risk-based assessments of legality carry inherent weaknesses which may be problematic in the future. 

As a decision-maker your role may require you to be proactive and dynamic and depart from established policies or procedures. When doing so, it is important to have a firm understanding of the legal implications of your decision and to seek legal advice before making the decision. 

Government lawyers are increasingly asked to provide advice based on the ‘risk’ that a course of action will be challenged in court. This practice can have a concerning effect on decision-making by senior officials. Advising that a course of action involves ‘high legal risk’ rather than advising it is ‘unlawful’ may result in a decision to accept that risk.

It is the duty of lawyers to provide a legal opinion, not a risk assessment. The role of a lawyer is to give advice based on what the law is, requires or permits. The role of the decision maker/ (be that a Minister or public official) is to decide and be accountable for the ensuing course of action. If there is no straightforward answer, it may be appropriate to express a level of confidence or uncertainty. Government lawyers should be steadfast in advising government to comply with the law. 

Another concerning practice is keeping legal advice in draft form. This enables public sector clients to ignore advice if it does not align with government policy or objectives and provides a mechanism to deny that contrary legal advice was received.

Advice provided in draft can undermine lawyers’ independence and opens the possibility of a client exerting influence to shape the final advice. 

Instead of providing draft advice, lawyers should correct errors, oversights or misapprehensions through supplementary advice. If necessary, lawyers should be prepared to invoke their duty to the court and the administration of justice. 

In circumstances where draft advice is used, the Attorney-General’s department instructs it must be finalised within three months of the draft advice being provided. Any reasons for not finalising draft advice must be documented. Legal advice in draft form cannot be disregarded. As a public official, rather than ask for advice based on risk, legal advice should be requested in relation to taking a particular course of action legally. This enables government lawyers to advise in a way that ensures legality is upheld and senior decision-makers are informed.

Risk-based legal assessments should not be used to make policy decisions. Whether a potential decision is legal is the critical question. You may need to consider either changes to your policy and program, or changes to legislation to enable a more positive outcome for the public and ensure it is lawful. 

5. Maintain a degree of independence

The APS value of impartiality requires public servants be apolitical and provide government with advice that is frank, honest, timely and based on the best available evidence.

Impartiality also requires decision-makers to be independent to make decisions that may be unpopular or go against the wishes of those in power. 

6. Expect scrutiny

Assume any decision you make will be tested and scrutinised.

Taking responsibility for your acts and decisions and those of your team is an inherent feature of leadership at every level. You must be prepared to be accountable, and not avoid being held to account. You must lead by example in cooperating with those who hold you and your agency accountable for decisions and actions. 

While not all decisions will be scrutinised later, assuming scrutiny is best practice. 

7. Record reasons for your decisions

Record-keeping is a key feature of a transparent and accountable government. This is especially important if you are, for good reason, departing from an established policy or practice, or from advice or recommendations. 

Make sure you record any decisions made and the reasoning behind them as soon as possible at the time of or after making the decision. Your reasons usually do not need to be long or elaborate, often you can just jot down the points that support it. Reasons assist your staff to understand your intent, and this will assist them in dealing with events in the future. Reasons also make it easier to justify your decision if questioned or scrutinised. A reasoned decision is much easier to justify at a later date. If a decision and a course of action can be shown to have been made rationally, then it should withstand scrutiny in the event unexpected or unwanted outcomes occur. 

The APS Values and Code of Conduct in Practice guidance on ‘Managing information’ states that the creation, maintenance and accessibility of Commonwealth records is essential for accountability and sound public administration. The level and standard of record keeping needs to reflect the circumstances and the importance of the decision or action being recorded. 

The National Archives of Australia Information Management Policy notes that transparent and accountable government requires that records of decisions—including reasons for those decisions—must be made and kept. Significant advice, decisions and meetings between senior decision-makers, including ministers, should be recorded in writing. 

It is important to keep a record of incidents and important decisions and not delete them after the event has passed. 

8. Take a cautious approach to the speed offered by taking humans out of decision making 

Automation and artificial intelligence have the potential to increase productivity, efficiency, accuracy and cost-effectiveness of service delivery. But these must also be designed to be ethical, lawful, technically robust, and this requires good governance and risk management.

9. Remember being responsive includes advising on delivering policy properly

Do not assume Ministers or senior public officials want a particular outcome regardless of legality and good governance (or just because of something an adviser has said, or someone has said in a media interview). Make sure you point out all problems identified and provide your best advice. 

Truth and accuracy at all levels in reporting is crucial. It is vital to provide frank advice and feedback to your leadership, even if you think they may not want to hear it. Integrity sometimes requires making unpopular decisions or providing unwelcome advice. It is also important to escalate concerns you have for unfolding situations. Bad news rarely improves with time. 

 To support ethical decision-making at every level there must be a culture where: 

  • decisions are made and advice is given honestly, impartially and in the public interest 
  • matters are reported honestly 
  • responsibility is accepted, including for inevitable mistakes. 

Additional support

The guide will also include a list of external resources to offer additional support and guidance on the topics covered. These are just a few examples. 

  • The Australian Public Service Commission (APSC) offers an Ethics Advisory service to all APS employees, including agency heads and Senior Executive Service (SES) employees who wish to discuss and seek advice on ethical issues in the workplace. 
  • The Australian Government Legal Service Statement of expectations of Commonwealth government lawyers outlines obligations and expectations of government lawyers.
  • The Attorney-General’s Department provides guidance on the use of draft legal advice within government which applies to all legal advice provided to the Commonwealth.
  • The National Archives of Australia offers introductory training resources to help users understand basic information management concepts and practices.

Making referrals

While some individuals, mainly heads of Commonwealth agencies, are obliged to refer corruption issues of which they become aware (which we call mandatory referrals), anyone can make a voluntary referral to the Commission (and voluntary referrals make up the vast majority of the over 5,500 referrals we have received to date). 

This means that while the Commission’s jurisdiction is focused on public officials, anyone who makes a referral that ‘raises a corruption issue’ to the Commission attracts the protections that are afforded under the National Anti-Corruption Commission Act 2022 (NACC Act). 

All referrals received by the Commission are treated confidentially.

Referrals can be made online, by phone or by post.  We strongly encourage referrals to be made online through our website and/or via the 1300 phone number. This is because the webform is designed to prompt referrers to provide the key information we need to decide whether it is within our jurisdiction, and whether a corruption issue arises.  The webform now permits a limited amount of documentary material to be attached. However, hard copy referrals can also be mailed to us at the address provided on our website.

A person who refers, provides information about, or gives evidence to the Commission about a corruption issue, cannot be subject to any civil, criminal or administrative liability (including disciplinary action) for doing so, and no contractual or other right or remedy can be enforced against them. This includes absolute privilege in proceedings for defamation, and protection from termination of or other detriment in employment for making the disclosure. These protections override all other laws of the Commonwealth. 

You can also speak to the integrity area in your agency and consider if you want to make a public interest disclosure (PID). A person who makes a disclosure under the PID Act, and a person who makes a referral under the NACC Act, receive similar protections from liability and reprisals, but there are some key differences: 

  1. Someone who makes a disclosure under the PID Act obtains additional access to civil remedies for reprisals, as is provided under the PID Act. 
  2. The protections afforded to disclosers under the PID Act are conditional on the disclosure objectively tending to show disclosable conduct or the discloser believing on reasonable grounds that it does so. Protections under the NACC Act are not explicitly conditioned like this, however they are subject to the disclosure meeting the threshold for a ‘NACC disclosure’ (ie, raising a corruption issue).  

Conclusion

In finishing I will leave you with a salutary lesson from the Lawyer X debacle:

Only a few months into her role as a human source for VicPol Ms Gobbo stated to her handlers ‘this is ethically f#@$ed’. (I pause to note Gobbo got a HD in Legal Ethics when studying for her law degree at University of Melbourne)

Everyone in the room laughed. The response to this ‘ethical dilemma’ was to promise her that no-one would ever find out what they were doing. They carried on for another 4 years using her as a source, and then over another decade tried to cover it up. 

Simon Overland, who was the AC responsible for the unit using her, then a DC, then CCP, agreed in a number of the subsequent inquiries, including the Royal Commission, that it was ‘ethically f#@$ed’– but argued that the ends (getting various clients of hers imprisoned) justified the means (using confidential or privileged information). Hundreds of millions of dollars have been spent on the civil litigation flowing from this, an IBAC Inquiry, then the Royal Commission, the implementation of its recommendations and several appeals against conviction. In considering the appeal brought by Tony Mokbel against his serious sentence of imprisonment for drug trafficking (which he admits he did), Justice Fullerton late last year described that as a perversion of the course of justice. Tony Mokbel has recently been bailed in anticipation his conviction will be overturned by the Victorian Court of Appeal. So if the words ‘this is ethically f@$ed’ ever come to mind – you know what not to do!

Thank you, I hope you found this presentation useful, I’m happy to take any of your questions.


Footnotes

[1] R v Llewellyn-Jones [1968] 1 QB 429 at 436; (here, however, dishonesty was present). See also R v Dytham [1979] 3 All ER 641 per Widgery LCJ, considered in R v Huy Vinh Quach [2010] VSCA 106.

[2] A ‘malfeasance’ is the doing of a wrongful act, whether a tort or a crime; the act itself is. A ‘misfeasance’ is the doing of something badly or improperly; the act itself is not necessarily wrongful: see Encyclopaedic Australian Legal Dictionary.

[3] R v Dytham [1979] 3 All ER 641 per Widgery LCJ, considered in R v Huy Vinh Quach [2010] VSCA 106.

[4] In R V Quach ([2010] VSCA 106, Redlich JA, at para [46]) it was held that the elements of the offence of misconduct in public office are: a public official; in the course of or connected to his or her public office; wilfully misconducts himself /herself: by act or omission, for example, by wilfully neglecting or failing to perform his or her duty; without reasonable excuse or justification; and where such misconduct is serious and meriting criminal punishment having regard to the responsibilities of the office and the officeholder, the importance of the public objects which they serve and the nature and extent of the departure from those objects.

[5] A total of 140,396 people responded to the APS employee census, but the Census results do not disclose how many responses were received for this specific question. Assuming all respondents responded to this question, 3% would represent 4,212 people. 

[6] Public Service Act 1990, section 10(2).