Was the government right to sack a public servant and former ALP adviser for his email correspondence with the office of then Labor foreign affairs spokesman Kevin Rudd?

That’s the question being addressed in the case of Trent Smith v DFAT which continues today at the Australian Industrial Relations Commission. But it could be the iceberg’s tip.

The Department of Foreign Affairs and Trade claims that Smith breached the Australian Public Service Code of Conduct (under the Public Service Act 1999) by providing partisan advice in contravention of the APS’s apolitical values. Now questions are being raised about the Department’s own conduct after the government’s star witness appeared to score an own goal at yesterday’s hearing.

Australia’s deputy high commissioner to Sri Lanka, Matthew Hyndes, was brought in to provide supplementary justification for Smith’s sacking, but his own promotion became the story of the day under cross-examination. The Age reports:

On August 16, 2002, diplomat Matthew Hyndes sent a threatening email to the head of the Department of Foreign Affairs and Trade’s security branch demanding that his security clearance be restored — or else. Stripped of full clearance in 1997 after becoming involved with a Thai finance company embroiled in bribery allegations, Dr Hyndes resented missing out on promotions. In the email Dr Hyndes threatened to leak information about the department and its security officials unless his security clearance was reinstated … Dr Hyndes’s’ security clearance was promptly restored. He was soon promoted to his Sri Lanka position.

So … email to ALP adviser by former ALP adviser = the sack; threat to DFAT by public servant with strong Liberal Party connections = promotion. During Dr Hyndes’s evidence his barrister, Tom Howe, QC, was forced to ask the commissioner, Barbara Deegan, to restrain the public gallery from “guffawing and sniggering and ridicule”, reports The Brisbane Times.

(As an aside, not lying on behalf of DFAT = non-extension of contract, according to a recent Canberra Times article, even though the Code of Conduct says very clearly that “an APS employee must behave honestly and with integrity in the course of APS employment”.)

Mr Smith wants to be reinstated after being suspended from employment in 2003 and sacked in July 2006, ostensibly for an email to Ashley Wells, adviser to Kevin Rudd, in 2002.

But DFAT had an earlier bone to pick with Mr Smith. They suspected he’d leaked records of a confidential conversation between Foreign Minister Alexander Downer and New Zealand high commissioner Kate Lackey about the prospect of war in Iraq, reports The Age — although a Federal Police investigation found no evidence.  

In trying to find further evidence against Smith, the Department “trawled through some 8,000 emails”, noted Gordon Taylor on Radio National’s Breakfast this morning.

The email correspondence they pinned their hopes on was no smoking gun according to Professor Stephen Bartos, director of the National Institute for Governance, whose statement was tendered to the AIRC.

…in my professional opinion, even were the email to be considered to be political in nature it is not partisan or extreme, and could not be considered to have provided any significant political advice to the Opposition. In this light, the action of the Department of Foreign Affairs and Trade to terminate his employment seems a grossly disproportionate reaction. Even were the Department to take the view that the email was of a political nature, counseling or a reprimand would seem, on the face of the facts presented to me, to be a far more appropriate course of action.

The government has yet to challenge Bartos’s opinion at the hearing. Perhaps they considered the Hyndes approach was going to be more fruitful than relying on the email conversation which ran thus:

         “From: Wells, Ashley (K.Rudd, MP)

Mate,

Hope all is well in whatever part of the world you’re in.

Quick favour I hope you can help me with – you have a contact list for Govt’s white paper? Or one that we might be able to use for our own purposes in our consultation processes? We’re sh-tting our daks here.

Alternatively a contact we can make who might have it?

Mr Smith writes from his Hotmail account:

More thoughts on the white paper. The list of individuals consulted could form the basis of an estimates question (it may have already been asked – See Nore or Hansard).

Regardless, the release of the white paper gives us an excuse to consult with everyone, NGOs, academics, etc. Bit of outreach.

Cheers

Trent

Mr Wells responds:

Thanks. Will think about it and have a look through hansard.”

On the face of the email itself and in the absence of other evidence, wrote Bartos, “it would be difficult to form a conclusion that its transmission constituted a breach of the Code of Conduct”.

Which raises yet another question: does DFAT know something we don’t? Perhaps they just hoped Dr Hyndes would bring it.

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