One of the most senior members of Australia’s national security elite is in a lot of trouble. And he may yet land his boss, George Brandis, in it as well.

Chris Moraitis, appointed as Secretary of the Attorney-General’s Department last year, spent most of yesterday in the hot seat at Estimates as non-government senators probed the circumstances in which, at the request of Attorney-General George Brandis, Moraitis offered the president of the Human Rights Commission Gillian Triggs another “senior” legal job. The matter has now been referred by Labor to the Australian Federal Police for investigation.

At issue is whether Moraitis, in the course of a conversation with Triggs, may have breached s.142.1 of the Criminal Code, which makes it an offence to dishonestly offer to provide a benefit with the intent of influencing a Commonwealth public official in the exercise of their duties.

Triggs’ evidence yesterday was clear. Moraitis met with her, and after some pleasantries, told her Brandis had lost confidence in her, asked for her resignation and told her that if she resigned, she would be given another senior legal position — an international job that the government is keeping confidential.

Moraitis’s evidence was, to be charitable, less than clear. Initially he said he had merely conveyed three points to Triggs — that Brandis had lost confidence in her, that Brandis retained a high regard for her legal skills and that the unidentified position would be available to her. He did not, he insisted, use the word “resignation”. Triggs says she is “absolutely certain” that Moraitis specifically asked for her resignation.

But under questioning from Labor’s Penny Wong, Moriatis’ story began to blur. He admitted that he believed Triggs’ resignation “was one option” from his discussions with Brandis. He didn’t really explain what being an “option” meant. Then he admitted the obvious point that, yes, it would not be possible for Triggs to remain in her current role and take the role he offered her. So by his own admission, Moraitis met with Triggs, knowing the resignation was “one option” Brandis wanted, told her Brandis had lost confidence in her and offered her a role that she would have had to resign in order to accept. But he did not, he was at pains to insist, ask her for her resignation.

This guy is head of the Attorney-General’s Department, remember.

Of course if either party to the conversation had kept notes, we could make some effort to resolve the serious discrepancy between the evidence of Triggs and the evidence of Moraitis. Perhaps it’s a simple misunderstanding on the part of Triggs, and everything Moraitis did was perfectly legal and appropriate. Triggs says she didn’t take any notes. Moraitis says he did. Ah! So can we see those, Wong inquired. Sadly, Moraitis had lost them. He’d tried to find them last week and, alas, had misplaced them. The bloke who wants data retention imposed on all Australians evidently has trouble retaining his own data.

Perhaps senior public servants do it differently now, but traditionally APS Senior Executive Service officers kept large notebooks in which they recorded their own notes of the thousands of meetings they attended a year. And they tended to keep those volumes, in date order, because you never knew when an old matter might rear its head, or legal action from a decision years ago find its way into the courts. In such circumstances, an officer went to their notebooks for the relevant year and checked what they’d written down. Moraitis’ system is evidently different. He wrote his notes on some sheets of paper, he said. No wonder they went missing.

Don’t hold your breath waiting for the AFP to decide Moraitis has a case to answer. First, there’s a legal issue. The requirement is “dishonestly” offering a benefit. The legislative term “dishonestly” has a long and storied history in our legal tradition that Crikey’s criminal lawyer readers are better placed than myself to explain, but in effect means Moraitis would have had to have known he was acting without any legal right in making the offer.

Second, there’s who’s doing the investigation and, perhaps, prosecution. The AFP reports to Brandis, and is a portfolio agency under Moraitis’ oversight as Secretary of AGD. And last time this sort of case was investigated, nothing resulted. In 2004, the Howard government offered independent MP Tony Windsor a diplomatic posting if he resigned his seat of New England. Eventually, the then-Commonwealth Director of Public Prosecutions decided there wasn’t sufficient basis to prosecute the National Party figures involved.

Of course, if there were a federal version of the Independent Commission Against Corruption, there’d be a permanent mechanism that could handle this sort of claim and clear Moraitis and Brandis, if necessary, of wrongdoing, or recommend further action. And it could do so without any conflict of interest arising from the AFP conducting an investigation into two of the most important supporters of the AFP at a time when the AFP is calling for a dramatic expansion in its own powers.

Peter Fray

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Peter Fray
Editor-in-chief of Crikey