AFP drops inquiry into whether an inducement was offerered to Prof. Gillian Triggs by the government … Investigation stymied by “loss” of notes taken by departmental secretary … FOI request shows failure to follow security procedures … Little information to corroborate that the notes were ever missing … Alex McKean takes it further
PROFESSOR Gillian Triggs has recently reaffirmed her determination to continue in the role as president of the Human Rights Commission for the full five-year term. In a speech to female leaders in the public sector organised by the YWCA, Prof Triggs said the treatment she received as a result of her report into the treatment of children in Australian immigration detention was the low point of her 47-year legal career.
Of interest to those who have followed the matter closely, Triggs reiterated that attempts had been made to persuade her to take “an alternative position”. This follows on from Prof Triggs’ evidence before Senate Estimates on February 24 this year.
On that occasion Triggs said that the purpose of a meeting with Chris Moraitis, secretary of the attorney general’s department, on February 3, was for Moraitis to deliver a message from attorney general George Brandis asking for Triggs’ resignation from the HRC.
While Prof Triggs described this as a “disgraceful proposal”, she refused to characterise that request as an inducement for her to resign her position as an independent statutory officer of the Commonwealth, which could found a criminal charge. Moraitis and Brandis refute the allegation that any inducement was offered and say the word “resignation” was not used.
The controversy could be resolved by reference to the notes Moraitis took of conversations he had with Brandis and Triggs in early February 2015.
One of the more extraordinary pieces of evidence given at Senate Estimates on February 24 was Moraitis’ statement that he had, “travelled to three countries in two weeks and I have lost those notes, losing my briefcase by mistake”.
The Saturday Paper has followed the AG Department’s response to an FOI request aimed at revealing the circumstances surrounding the loss of those notes here and here.
Now the FOI request has been finalised, the most startling thing is the amount of material the department has now confirmed does not exist. The response indicates that the only material Moraitis lost was the set of notes from his conversations with Brandis and Triggs.
It also appears no report was made by Moraitis that the notes were missing. The departmental Secretary gave evidence to Senate Estimates on February 24 that he went looking for the notes one week earlier. He gave very unsatisfactory responses to questions about what prompted him to go looking them, as can be seen from this exchange:
Senator Wong: When did you realise that you had lost those notes?
Moraitis: It was about a week ago.
Senator Wong: You did not look for them prior to a week ago?
Moraitis: I beg your pardon?
Senator Wong: When did you first look for them?
Moraitis: About a week ago.
Senator Wong: What prompted you to look for them?
Moraitis: Because I had moved several series of note papers around in my briefcase because of my travels and I could not locate them.
Senator Wong: What prompted you to look for them?
Moraitis: I just wanted to have them, because I would have kept them.
Senator Wong: For estimates or because there was some media speculation? Was there something external which prompted you to look for them?
Moraitis: No. It was because I wanted to keep the notes. That is why I kept them in the first place.
Reasonable minds might draw the conclusion that this was the moment the loss would be reported, as it seems this was when Moraitis discovered they had been misplaced. According to the department’s response to the FOI request no document exists showing Moraitis reported the notes missing in the weeks after he gave evidence.
Likewise, it appears the Secretary never took any step to correct the record, to ensure the Senate understood that he had never lost his briefcase, as stated in the FOI decision.
Nor does it appear Moraitis ever took any step, either between when he realised the notes were missing on February 17, 2015 and at estimates a week later, or subsequently, to inform Prof Triggs, even as a matter of courtesy, that he had lost notes of their private and confidential conversation.
If this were the case, then the first the head of the HRC would have known of Moraitis carelessness would have been his mumbled admission at estimates, when the two were giving evidence, seated next to one another.
Perhaps of even more concern is the total absence of any document showing that the loss of the notes has been treated seriously by Moraitis or his department, and the failure to take any steps to locate them.
Whether or not the Secretary lost a briefcase, a folder, or just the notes, the issue remains whether the loss of the notes should have triggered the requirements for a “major security incident”.
The security governance guidelines published by the Department of Attorney General provide that a major security incident can include any incident which may result in negative consequences for Australian government institutions and programs, specifically any reckless or negligent action which could lead, to the loss, damage, corruption, or disclosure of official resources.
Had the loss of the notes been treated as such an incident, documents would exist setting out the steps taken by Moraitis to search for the notes, when he reported them missing and steps taken by the department to investigate the loss.
The purpose of the guidelines is to identify and address security incidents and provide best practice guidelines for investigating them. It states that information gathered on security incidents may highlight the need for agencies to assess current arrangements and that good security management can enable agencies to recover as quickly as possible from a security incident.
Far from being treated as a major security incident, not a single record exists showing Moraitis has ever informed anyone about he loss of the notes. It should be remembered that the notes record the attorney general’s instructions that he had lost confidence in Prof Triggs as the head of an independent statutory authority and to make an offer of another job within the gift of the government.
Details of that alternative position was apparently so sensitive that it could not be disclosed to Senate estimates.
The notes also record the details of the subsequent conversation with Triggs about these sensitive and confidential matters.
On the state of the evidence as it currently stands, there is very little to corroborate Moraitis claims that he lost the notes. There are also significant concerns raised by the apparent failure of of the Secretary to act in accordance with guidelines published by his own department, which are designed to prevent losses of such material.
It is difficult to see how any assessment can be made of Moraitis’ conduct in this matter, nor how any action can be taken to prevent any such loss in the future, if no investigation is conducted into the circumstances of the loss of the notes.
Department’s first response to FOI request