Did Attorney-General George Brandis illegally induce a public servant to quit? And will his most senior bureaucrat take the fall?
Maybe, and possibly. Crikey sister publication The Mandarin canvassed the views of former senior public servants and public-administration academics over the conduct of Brandis and Attorney-General’s Department secretary Chris Moraitis for suggesting alternate employment for Human Rights Commission president Gillian Triggs. Both, at the very least, have left themselves exposed.
In Senate estimates yesterday, Triggs said Moraitis had asked her to resign in a meeting last year and had offered her another senior position in a way that was “clearly linked”. Moraitis — just five months in the job — confirmed he had conveyed to Triggs she had lost the confidence of Brandis and had offered another “specific” position, but he denied asking her to quit.
Shadow attorney-general Mark Dreyfus wrote to the Australian Federal Police yesterday seeking an investigation:
“The Attorney-General’s offer to an independent statutory officer of an inducement to resign her position as president, with the object of affecting the leadership of the Australian Human Rights Commission to avoid political damage to the Abbott government may constitute corrupt and unlawful conduct.
“I request the matter be investigated by the Australian federal police as a priority and that it be referred to the Commonwealth Director of Public Prosecutions, if appropriate.”
According to the Criminal Code Act 1995:
There’s complexity and conflict. The AFP is now being asked to investigate the minister and secretary it answers to. And who’s responsible for making the offer: Brandis or his messenger?
Patrick Gourley, a former senior bureaucrat in Canberra, believes Brandis should be sidelined. “Now that this matter has been put to the AFP, it would seem that at a minimum Brandis should stand aside while the AFP, an organisation within his portfolio, decides what it is going to do,” he said.
That seems unlikely. If anything, as one former deputy secretary told The Mandarin, it’s Moraitis in the gun. “The fall guy or person being set up here will be Moraitis,” the source said.
“As we know with this government, they [public servants] are disposable commodities. The issue is whether the AFP will go the political elite — rather than hang another public servant (albeit a well-paid one) out to dry. That’s usually how these things end up.”
Not that Moraitis was doing anything wrong in conveying the disappointment of the minister, according to Gourley.
“Putting aside the legal question, would it be out of order for ministers to ask their secretaries to convey to heads of statutory authorities in their portfolios views about their performance? I would have thought not and I would have thought it to be not uncommon. In the circumstances of Triggs’ case, however, it would have been better if the Attorney [Brandis] had had the discussion,” he said.
Another former agency head agreed performance assessments from ministers and even fellow bureaucrats was not unusual. But those running independent statutory bodies should feel empowered to reject direction that puts that independence at risk. Triggs certainly did, and continued to yesterday in the face of a sustained attack in Parliament by Prime Minister Tony Abbott.
Bill De Maria, a University of Queensland academic in public sector ethics, believes “Moriatis riding shotgun for Brandis is the actions of a highly politicised public servant”. The biggest loser, he says, is the AHRC.
“The commission relies on the goodwill of governments to transit its recommendations into policy. That process is now suspended, make no bones about it. Brandis won’t even take a call from her, let alone read anything that comes to him with her signature on it. So for the future human rights governance, particularly the commission’s watchdog role on the consistency between Australian laws and international human rights covenants, it is in chronic abeyance. A shocking fact given the new anti-terrorist laws heading to Parliament,” he said.
“This will play out either with Triggs staying put on top of a dysfunctional and demoralised organisation or going, leaving the way clear for another pro-Abbott appointment. I think it will be the latter. While an eminent international law academic, I don’t think she has sufficient mongrel in her to withstand the bullying and ostracism.”
John Uhr, director of the Centre for the Study of Australian Politics at the Australian National University, believes the issue is ultimately not one of legalities but ethics and the relationship between ministers and their bureaucrats.
“To what extent should a public servant do the bidding for a minister? We really know very little about the rights and wrongs of public servants as messengers,” he said.
*This article was originally published at The Mandarin.