Au pairs: a minister under fire, his department overruled, and a very long list of QONs

By Stephen Easton

Wednesday September 5, 2018

Secretary of the Department of Home Affairs Michael Pezzullo (right) speaks to the Commissioner of the Australian Border Force Michael Outram during a Senate Inquiry at Parliament House in Canberra, Wednesday, September 5, 2018. The Senate legal affairs committee is examining whether Minister for Home Affairs Peter Dutton misused his ministerial discretion to grant two European au pairs visas in 2015, despite the reservations of border authorities. (AAP Image/Lukas Coch) NO ARCHIVING

The Department of Home Affairs has agreed to tell a Senate committee what led border control officials to advise Minister Peter Dutton there was a “high risk” that a woman would illegally work as an au pair if granted a tourist visa, shortly before the minister did just that.

This, and another similar question regarding a second woman granted clemency by Dutton in very similar circumstances, were the most sensitive of many taken on notice by secretary Michael Pezzullo, Australian Border Force commissioner Michael Outram and other senior officials in a tense inquiry hearing this morning. So sensitive that the chair, Labor senator Louise Pratt, agreed to keep the department’s responses confidential.

Of course, whatever answers Home Affairs provides will feed into the opposition-dominated committee’s report, which is due for publication next Tuesday and likely to continue Labor’s campaign to cast aspersions on Dutton’s use of his ministerial intervention powers.

Pezzullo said he was unwilling to provide more details publicly for the same reason they were recently redacted from documents released to journalists following freedom-of-information requests — to protect the privacy of the women at the centre of the controversy — and pointed out the FOI decisions had been upheld by the information commissioner on appeal.

Committee members also noted the department had spent considerable amount of funds — reportedly over $10,000 — on opposing FOI requests over the matter.

The secretary was very careful to state repeatedly that the minister’s use of his discretionary powers was entirely the minister’s responsibility, and it did not matter to the department who had asked Dutton to intervene, whether the minister knew them personally or how he chose to act on their advice related to the specific cases. Pezzullo said the advice was more like a set of options for the minister and relevant risk factors, than advice on how to proceed.

He also refused to answer questions related to emails leaked from the department, which showed Dutton had granted one of the new visas in under 24 hours, and only just before the woman was deported, claiming public-interest immunity on the basis that the leaks were unauthorised and potentially a criminal act. Outram took a question on notice about whether such rapid intervention was common.

Watt believes that out of Dutton’s 4129 ministerial interventions since 2014, only 14 were related to comparable situations involving the same tourist visas up to June this year, while another 11 had occurred since then. Home Affairs has undertaken to confirm that in one of its new QONs.

Meanwhile, two former senior immigration officials interviewed by the ABC have criticised the interventions.

More leaks referred to AFP

Pezzullo confirmed in the hearing that he has referred the leaks to the Australian Federal Police and reiterated the official line that if public servants believe they have seen evidence of impropriety in the course of their work, they should make an official public-interest disclosure. This, he pointed out, would grant them protection from reprisals or being accused of criminal disclosure of government information.

Pratt made a point of asking the secretary to confirm he knew about the details of the case where the AFP raided former Senator Stephen Conroy’s office and seized documents, which suggested a similar clash between the executive and legislative arms of government might be brewing here. Pratt said she “knew the providence” of the documents and implied at least some leaked documents had been submitted confidentially to the committee, potentially shielding whoever submitted them under the Senate’s broad privileges.

“I need to ensure witnesses to this committee have protections and have to make sure Mr Pezzullo is aware of that,” she said.

Pratt’s Labor colleagues Kimberley Kitching and Murray Watt took the lead questioning the public servants along with Greens senator Nick McKim. They were unimpressed with how the officials had prepared for the hearing, mainly because they had turned up without the relevant specific case files, but also when told some of their questions would be best answered by staff members who were not in attendance.

Watt, who began the hearing by pointedly asking Pezzullo to allow the other officials to answer questions there and then if they knew the answers, rather than taking most himself as he has done in Senate estimates, eventually became frustrated with the secretary’s cautious responses. At one point he accused Pezzullo of inappropriately “coaching” the other public servants instead of letting them answer the questions freely, but later withdrew the remark.

No smoking gun

On the whole, no big new smoking gun emerged from the hearing and the resulting report is almost certain to include dissenting views expressed by government senators Barry O’Sullivan and Eric Abetz, who made their disdain for the inquiry very plain in this morning’s proceedings.

O’Sullivan cast doubt on whether the committee should accept any leaked documents were genuine, while Abetz confirmed that the ABF had never found any evidence that either woman had breached the tourist visas so generously and rapidly granted by Dutton after they contacted their Australian friends, and argued they deserved the presumption of innocence.

The officials also confirmed they had done nothing to check whether the women breached their visa conditions, however, as they were only here for three months and did not overstay.

Home Affairs officials were first asked about the au pairs during a marathon budget estimates hearing in May.

“Is it the case that two people who intended to work, as far as the Border Force is aware, as au pairs, were detained at an Australian airport in 2015?” Senator McKim asked on May 21, before many facts had emerged.

Australian Border Force commissioner Michael Outram took the question on notice, as he didn’t have the “facts and details” in front of him at the time. Out of a very long list of QONs from the hearing, it is one of very few that were answered late. The answer came back on August 2: “Yes.”

What’s the go with the CIO?

Home Affairs is still yet to answer another awkward QON from the 2018-19 budget estimates hearings, about an intriguing news article from May. Fairfax Media reported on a confidential New South Wales Information and Privacy Commission investigation involving Tim Catley, the former chief information officer at Transport for NSW, who moved into the same role with Home Affairs in February.

A preliminary finding of the IPC investigation was that an unnamed NSW transport executive had directed staff to delete records that were “germane” to an application for public access to government information.

Catley strongly denied he had ever given any such instruction, in response to an accusation reportedly contained in a submission to the confidential IPC inquiry.

Senator Pratt asked Pezzullo in estimates if there were “any conditions attached to Mr Catley’s hiring” given he got the job before the IPC inquiry had been concluded.

“Do you think it’s appropriate for your new information chief — who will be overseeing a vast amount of hugely sensitive national security information, and will no doubt deal with plenty of FOI requests in his role — to be someone who has been investigated by the Information Commission?” she asked.

Catley had also argued it was not technically possible to completely delete emails and other records, as they would always exist in an electronic archive. Transport for NSW told the newspaper: “The commissioner found no evidence that information within scope of the applications was deleted. No information was released in relation to the identified GIPA applications.”

But according to the news article, NSW information commissioner Elizabeth Tydd also found the only reason the agency had not breached the record-keeping rules was that other staff were able to produce the information. She reported that these actions “remediated” the unnamed executive’s attempt to have it deleted (even if only from the most easily accessible normal data storage location).

And while she found the unnamed transport executive did not break the law, the article implies this was mainly due to a deficiency in the NSW transparency legislation that was identified by Tydd.

“Is the secretary concerned by this?” Pratt asked Pezzullo.

Without the NSW report seeing the light of day and only a news article to go on, she suggested it was up to the Home Affairs secretary to clear the air, asking if he agreed that “having a Chief Information Officer who has been accused of deleting information subject to an FOI request” was a good way for his department to build public trust.

Pezzullo enjoys expressing his thoughts on a wide range of topics in both public and private forums including speeches and expansive memos to senior executives, such as a recent one that found its way to Crikey and included the following musing on reputation:

“Reputation is a function of what we do and what we are seen to stand for. It is not a function of communications plans and media management, although those aid in the management of reputation. Look for opportunities to authentically promote what we do, and to build confidence, without ‘spin’.”

Top photo: Secretary of the Department of Home Affairs Michael Pezzullo (right) speaks to the Commissioner of the Australian Border Force Michael Outram during a Senate Inquiry at Parliament House in Canberra, Wednesday, September 5, 2018. AAP Image/Lukas Coch.

If The Mandarin‘s readers were hoping for part two of Michael Pezzullo’s famous address to the Trans-Tasman Business Circle from last year in which he leaped from Tolkien to Thomas Hobbes and John Locke, he’ll be speaking to the group again tomorrow — but unfortunately it’s off the record.

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