The minister, the job offer and the secretarial messenger

By Jason Whittaker

Wednesday February 25, 2015

Labor wants police to investigate the pressure Attorney-General’s Department secretary Chris Moraitis applied to human rights commissioner Gillian Triggs to stand down. Do they have a case?

Did Attorney-General George Brandis illegally induce a public servant to quit? And will his most senior bureaucrat take the fall?

Maybe, and possibly. The Mandarin canvassed the views of former senior public servants and public administration academics over the conduct of Brandis (pictured) and Attorney-General’s Department secretary Chris Moraitis for suggesting alternative employment for Human Rights Commission president Gillian Triggs. Both, at the very least, have left themselves exposed.

Chris Moraitis
Chris Moraitis

In Senate Estimates yesterday, Triggs said Moraitis asked her to resign in a meeting last year and offered another senior position in a way that was “clearly linked”. Moraitis — just five months in the job — confirmed he conveyed to Triggs she had lost the confidence of Brandis and offered another “specific” position, but denied asking her to quit.

Shadow attorney-general Mark Dreyfus wrote to 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:

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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,” they 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.”

“Moraitis riding shotgun for Brandis is the actions of a highly politicised public servant.”

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 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, an expert in public sector ethics, believes “Moraitis 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 Trigg 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.

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Fahne Hoch
Fahne Hoch
5 years ago

I fail to see wherein lies any illegality offering Triggs a job elsewhere in an area where she’d be more compatible. This is happening all across the business world if a CEO fails to measure up to employer’s expectations, they get ‘moved sideways’ as the euphemism went.
Call it ‘inducement’ if you want, it’s a nicer way of settling a problem without anyone losing face.

Norman Hanscombe
Norman Hanscombe
5 years ago
Reply to  Fahne Hoch

Fahne, there ISN’T any illegality or even impropriety in what
happened; but on this site’s blogs those in control are inhabiting a
metaphorical distant galaxy which is far, far away from the real world.

Jacob Kelly
Jacob Kelly
5 years ago
Reply to  Fahne Hoch

As a public servant, we are to hold ourselves above approachment. This also includes ‘inducing’ which is essentially legalese for bribe. Make no mistake, a public servant is supposed to be impartial, and in exercising our duties, this impartiality is often at odds of our job of implementing government policy. Government policy in regards to the AHRC is for the body to be an independent entity that compares our law against international law, of which Triggs has done. Its not the AHRC’s fault that it goes against its narrative.

Malcolm Street
Malcolm Street
5 years ago

Fahne – the point is that this is *not* the business world. The issue isn’t her competence in the role, it’s that she’s provided “frank and fearless advice” as a senior public servant should, and the government wants a yes man or woman.

Pamela Curr
Pamela Curr
5 years ago

The Biggest loser in all this are the asylum seekers in detention who lose the only official advocate they had. They along with other vulnerable “outsiders” in Australian society risk having no one standing up for their rights in an official sense.The Human Rights commission was at least a place where human rights are taken seriously no matter how limited their mandate for action. Of course we as a nation suffer a loss of reputation and respect.
The Ombudsmans office was gutted of any role in monitoring detention – when did you last hear a squeak from them after the honourable Allan Asher was hounded from office for being too critical of Government. An apparatchnik from Immigration was installed to clear out those too active in their jobs leaving the others to collect pay checks for doing nothing. The Ombudsmans office even advertises their services in detention camps- not that anyone ever asks for help- asylum seekers know it is useless.
And thats it. The rest of us are NGO’s fighting against egregious rights abuses with a government which shows no respect and gets away with it because they have dehumanised asylum seekers to a level of concern below that of cattle.
Remember uproar for Cattle in Indonesia, sheep in the Middle East- nothing for little children physically and sexually abused on Nauru – see last nights official acknowledgement of this from Ministers office – clearly coming from the Moss report which may never see the light of day.
Both Labor and Liberal are guilty.

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5 years ago
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