Operation Myrtleford - additional information

In its final report delivered in July 2023, the Robodebt Royal Commission identified conduct by 6 individuals that it considered might give rise to corruption issues within the meaning of the National Anti-Corruption Commission Act (NACC Act). 

Under its legislation and terms of reference, the Royal Commission could not determine whether the conduct amounted to corrupt conduct under the NACC Act. Only the NACC could make that determination.

The Royal Commission did not, as has been commonly misunderstood, refer anyone to the NACC for civil or criminal prosecution, as this is not a function of the NACC. Criminal prosecution is a matter for the Commonwealth Director of Public Prosecutions.

No. The Royal Commission’s findings remain unchanged.

The NACC’s report addresses a different question: whether the particular conduct referred by the Royal Commission constituted corrupt conduct under the NACC Act and, if so, whether further action was warranted.

The Royal Commission and the NACC perform different functions and operate under different legislation.

Therefore, an adverse finding by the Royal Commission does not automatically result in a finding of corrupt conduct by the NACC. 

The Royal Commission’s referrals were made in a confidential chapter of the Royal Commission’s report and were subject to directions not to publish. The directions did not stop the NACC from performing its functions, which means the NACC is able to publish its report. 

The NACC investigation report is a report prepared under section 149 of the NACC Act. Section 156 of the NACC Act permits publication of the report where the Commissioner (or delegate) determines it is in the public interest.

In this case the Deputy Commissioner determined publication was in the public interest because:

• the referrals were and remain a matter of public concern
• the referrals identified corruption issues that, if established, would amount to serious corrupt conduct within the meaning of the NACC Act
• it is important that the public be assured that the issues have been fully and fairly investigated.

In June 2024, the Commission announced its decision not to investigate the referrals.  Key reasons included that the conduct referred by the Robodebt Royal Commission had already been exhaustively examined and that a fresh NACC investigation was unlikely to uncover significant new evidence. 

Following complaints about that decision, which had been delegated to a Deputy Commissioner, the Inspector of the National Anti-Corruption Commission conducted an investigation into the decision-making process. In October 2024, the Inspector found that there had been officer misconduct arising from a mistake of law or fact by the Commissioner in managing a declared conflict of interest, and that he had not sufficiently removed himself from the decision-making process.

The Inspector recommended that the decision be reconsidered by an appropriate independent delegate, and that recommendation was accepted. 

The Independent Reconsideration Delegate – the Hon Geoffrey Nettle AC KC – was appointed in December 2024 to reconsider whether and how the NACC should deal with the referrals. 

In February 2025, the Independent Reconsideration Delegate determined that:

• each referral raised a corruption issue under the NACC Act; and
• it was in the public interest for the NACC to conduct a corruption investigation.

The Commissioner had no involvement in the investigation, the preparation of the investigation report, the media release or other explanatory material.

On 4 April 2025, the Commissioner delegated the conduct of the investigation to Deputy Commissioner Kylie Kilgour. At the same time, the CEO issued a direction to NACC staff creating an information barrier between the investigation team and the rest of the NACC. The Commissioner also issued a direction to the other Deputy Commissioners creating an information barrier between Deputy Commissioner Kilgour and the other Deputy Commissioners.

Deputy Commissioner Kilgour had no conflicts of interest in relation to any of the referred individuals. The investigation team that assisted the Deputy Commissioner also had no conflicts of interest in relation to any of the referred individuals.  

More information about the investigation team is available in the Appendix of the Investigation Report.

The NACC Act establishes that hearings are generally held in private unless: 

• there are exceptional circumstances that justify holding a hearing in public and
• it is in the public interest to hold them in public.

There is no definition of ‘exceptional circumstances’ in the NACC Act. 

That the referrals had been made by the Royal Commission did not mean that exceptional circumstances existed. Referrals by Royal Commissions and other time-limited inquiries often identify matters for further investigation, as was the case with the Royal Commission’s referrals. 

Key public interest considerations in this matter included the risks of prejudice to any subsequent criminal proceedings, and unfair harm to individuals’ reputations, privacy, safety or wellbeing.

The Deputy Commissioner applied the statutory requirements under the NACC Act and continued to consider whether public hearings should be held throughout the investigation. The statutory requirements for holding public hearings were not met. 

For a more detailed discussion, see Decision not to hold public hearings, in the Appendix of the investigation report.

Operation Myrtleford was a complex investigation involving consideration of a large volume of material including: thousands of documents the Royal Commission provided with the referrals; video and transcripts of the Royal Commission’s hearings; other material on the Royal Commission website; documents produced in response to notices to produce; and interviews and private hearings involving more than 40 witnesses, including the examination of the 6 referred persons.

All the evidence relevant to the findings is set out in the investigation report.

No. A finding of corrupt conduct under the NACC Act is not the same as a criminal conviction.

The NACC’s investigative and reporting functions are distinct from the criminal justice system. Key differences include:

• findings are made on the balance of probabilities, not beyond reasonable doubt
• some evidence obtained by the NACC (including compelled evidence) is not admissible in criminal proceedings.

Although the NACC found serious corrupt conduct by 2 individuals, it concluded that there was insufficient admissible evidence to establish criminal offences beyond reasonable doubt. This was because admissions made in NACC hearings cannot be used in criminal proceedings. As a result, it was not appropriate to refer either matter to the Commonwealth Director of Public Prosecutions.

Proposed findings were sent to the referred persons who were given an opportunity to make submissions in response. Those submissions were considered before the report was finalised. This is a confidential process. Where required under the NACC Act, a summary of the submissions made is included in the report.

Procedural fairness provisions of the NACC Act, as well as the general law and sound decision-making, require that before forming or publishing findings, opinions or recommendations adverse to a person or agency, the person or agency is given an opportunity to address the adverse material.  Read more about procedural fairness and the NACC Act.