This chapter will examine the key issues raised at the hearings. The
chapter will then outline the committee's views and recommendations.
Why was the Monis letter not provided to the Thawley-Comley review?
Mr Chris Moraitis, Secretary of the Attorney-General's Department (AGD),
explained that the failure to provide the Monis letter, the AGD's response and
four other documents to the Thawley‑Comley review resulted from an
administrative error. On 19 June 2015, Mr Moraitis stated that the:
administrative error became evident during the course of an
internal review that I requested my department to conduct to ensure the
accuracy of the search and to confirm what had been passed to the siege review.
Later during the inquiry, it became apparent that several officers at
the AGD knew the Monis letter had not been provided to the review during early
Mr Moraitis described the circumstances leading to the omission,
outlining that between 5 and 15 January 2015, in response to a request from the
Thawley‑Comley review, the AGD carried out searches to compile a list of
documents and correspondence relevant to the terms of reference of the review.
Copies of the relevant documents were collated and passed on to the
Thawley-Comley review team located in the Department of Prime Minister and
Mr Tony Sheehan, former Deputy Secretary, Strategic Policy and
Coordination Group, the AGD, added:
We had nominated one division in the department to be the
central point for coordination of the provision of material to the review, and
that was the place to which the results of searches came. The letter from Monis
was identified in the searches by the department. That was then provided, in
search form, to the coordinating division. Unfortunately, when that was
provided, the letter was on the second tab of a spreadsheet that was provided
to the division; and when the division collated the documents to provide to the
review at PM&C they did not realise that there was a second tab to that
spreadsheet. So they collated the documents and provided the documents to
PM&C appropriately, but they did not know that there was this document
which was in scope on another page of the spreadsheet. So it was essentially a
human error, and that was not detected through the clearance process that
occurred. As a result, although the document had been identified it was not
passed to the review.
Mr Sheehan explained that the spreadsheet had a total of 68 documents
listed on the two tabs. Of these 68 documents, 35 were forwarded to the
Thawley-Comley review, all of which were listed on the first tab. Although the
second tab of the spreadsheet listed a number of documents, only five of them
were deemed relevant to the terms of reference of the Thawley‑Comley
review: the Monis letter together with the AGD's response (treated as a single
document), a cover sheet, two separate letters to politicians and a piece of
correspondence addressed to another agency.
When asked about why the spreadsheet file was divided into two tabs, Mr Sheehan
It was simply the way the information was electronically
organised. There was nothing unusual about that. It was simply that the officer
doing the collation did not see it...there was not any difference in general
character between what was on tab 1 and tab 2, to my recollection.
The AGD later confirmed that the first tab listed records that were held
in TRIM, the AGD's general records management system, and the second tab listed
records that were kept in ExecCorro, the AGD's ministerial correspondence
The AGD then confirmed that the first tab listed records created up to and
including part of 2010, while the second tab listed records created from 2010
onwards. Therefore, the AGD did not provide any relevant documents that were
created after 2010 to the Thawley-Comley review team.
Mr Neil Gaughan, Acting Deputy Commissioner, National Security,
Australian Federal Police (AFP), explained when the AFP first became aware of the
At the time of the siege and immediately thereafter, New
South Wales police enacted the terrorism powers—the commissioner of police
there has the power to do so—and a number of search warrants were undertaken in
New South Wales in relation to the Monis activity. Our understanding is that
the particular letter that is the focus of this inquiry was actually seized by
the New South Wales police either on the date of the siege or shortly
On 28 January, a New South Wales police officer working with
the coronial team, and subsequently also working in assisting the Joint Counter
Terrorism Team, asked the AFP whether or not they were aware of a particular
piece of correspondence, and the advice was they were not...
The AFP advised that the Monis letter was the only piece of
correspondence that the New South Wales Police Force (NSWPF) had brought to the
attention of the AFP.
On 28 January 2015, the AFP wrote to the AGD highlighting that it had become
aware of the existence of the Monis letter and requested, on behalf of the
Joint Counter Terrorism Team (JCTT), a copy of 'all correspondence that may be
retained from the past few years' between Man Haron Monis and the AGD or the
Attorney-General. In response to this request the AGD officer confirmed that
the material could be provided to the AFP by the following week, stating 'I'm
confident we'll have all our processes and authorities sorted by then'.
The AGD responded to the AFP request on 25 February 2015, handing over a
bundle of documents in hard copy on 3 March 2015. These documents, in sealed
envelopes, were handed over to the JCTT via the NSWPF on 5 March 2015.
On 27 July 2015, the committee received a copy of an email dated 1 June 2015
from the AGD to the Attorney‑General's Office in which an officer of the
On 2 February 2015, AGD became aware that this correspondence
had been omitted from the correspondence provided to the Martin Place Siege
Review due to an administrative error related to a spreadsheet...On the same day,
AGD advised the Review team by telephone that an additional item of
correspondence and response had inadvertently not been provided to the Review
due to an administrative error. The Review team member responded that the text
of the Review had been finalised and AGD therefore did not provide the document.
When questioned as to why the information relating to 2 February 2015
was not disclosed to the committee sooner, Mr Moraitis answered:
On the question of the 2 February issue, when you say the
department was aware, that emerged on 1 June. That is when it first emerged at
a senior level, at any level above that officer who had raised that issue on 2 February,
that it had happened. As far as I know—and I will ask Ms Jones and Mr Sheehan
to confirm this—that was the first time that anyone apart from that officer was
aware of that interchange and discussion between that officer and the review
team. That was a development that emerged in the course of that process with Mr
Sheehan looking into this issue. No-one was aware of that before that time,
apart from the officer who raised it...I expected that issue to be raised in the
course of the hearings and that we would get to that. Unfortunately, we did not
get to that. In retrospect, I would have preferred that I had raised it and I
should have, but it was not germane to the reason why the letter had not been
Mr Sheehan provided further clarification, noting that by 2 February
2015, a second officer would have known that the Monis letter had not been given
to the Thawley-Comley review team, by stating:
I think it is important to say that the way in which the
events occurred on 2 February—and I spoke with officers on 1 June about
this, as we were trying to understand the picture of what had occurred—was that
one officer who, in looking at material for the AFP, concluded that the
document may not have been passed, contacted another officer in the division
that had passed the information and said, "There may be correspondence
that has not been passed." That officer then made contact with the review
and was told that they were not accepting further correspondence, and the
matter rested. There was not proper corporate knowledge of it, so individuals
did not create a picture at that time that would have given the department that
knowledge. There is a very clear recognition that that is not a good outcome in
terms of the way it was handled.
Consideration of the Monis letter by the Thawley‑Comley review
As noted in chapter 1, Mr Michael Thawley, Secretary, PM&C wrote to
the Prime Minister on 4 June 2015 to advise him that the Thawley‑Comley
review team had not received the Monis letter, but that this omission 'would
have made no difference to the findings in the review'.
Mr McKinnon gave his opinion as to why Mr Thawley may have come to this
conclusion, breaking it down into two elements:
One is the amount of information that was available to the
review and to the security and intelligence agencies over the very many years
when Monis was the subject of their attentions. We are talking about hundreds
of thousands of sheets of information. Looking at the subset of letters, there
were many letters there. I think that we have 90 readily available to us; there
are many more out there. This letter—against the context of the sort of letters
that he wrote—was nothing at all special. For example, he had previously
written to an earlier Attorney-General seeking information about whether it was
legal or illegal to write to Sheikh Hassan Nasrallah, the secretary general of
Hezbollah. So this sort of thing where he would write letters asking for that
sort of an opinion was common...We look at this letter: it had no threat of
violence and no reference to terrorism; it was simply asking a legal opinion
about whether he can write to the leader of ISIL. It was really stock standard.
Mr Duncan Lewis, Director-General of Security, Australian Security
Intelligence Organisation, in his evidence at estimates, stated:
I find the letter very flat. It is a very flat letter. It has
not been assessed, but on first examination I find it very flat. But I am not
commenting beyond that.
Mr Thawley took the view that the missing correspondence was a minor
issue. However, he stated that the failure by AGD to provide any correspondence
for which a record was created after 2010 was 'a mistake and a pity', and that
at the time, the AGD 'needed to improve their handling of correspondence'.
Mr Thawley explained that in his opinion Mr Moraitis dealt with the
correction of evidence issue in a reasonable manner.
He noted that 'Chris Moraitis is a very fine secretary' and that he was not
surprised that it took the AGD 'a couple of days to sort through it'. Mr
...if I were a
secretary of a department where there had been missing correspondence I would
want to check exactly what happened so that I had a full story, so that I did
not have my minister going out and giving half a story or half a correction. I
would want to know that I had all the information available.
When asked about any lessons that could be learned about vigilance in
handling correspondence that may have national security implications, Mr
Thawley stated that:
I do think that this
pointed out a weakness in the process for assessing whether correspondence was
relevant. I did make the point that, apart from finding out what happened, the
A-G's department did need to make sure that the procedures for handling
correspondence which might have security relevance needed to be looked at.
The AGD's document handling processes
With regard to the AGD's handling of documents and failure to
communicate information up the line on 2 February 2015, Mr Moraitis agreed with
a comment that the method employed by the AGD for handling documents had been
He explained that the errors may have occurred because the division dealing
with national security issues had been very busy over a period of four to five
months in the lead up to the summer break and, due to leave arrangements, some
officers were temporarily filling in for others and the division was not fully
Mr Moraitis declared:
I have bent over backwards in the department to get a process
in place whereby this never happens again. I cannot guarantee that it will
never happen again, but I am going to be sure that we do the best we can. Does
it mean having three sets of eyes to look at material—one who collates it, one
who ensures it goes out and one who verifies it has been received—and they
audit and reconcile it? If that has to be done it has to be done...It is not just
about setting up a protocol for how you handle material; it is also about my
desire to ensure that, when we do set up these sorts of processes, there is
someone responsible...One way would have been to have one person in charge of the
whole process and for me to say to them, "You are personally responsible
for checking every single document in the system, putting it in a folder,
making sure it gets to the person at the other end and ticking it all off."
We could have had a group of people where one person did that, another person
made sure it was all collated and another person oversaw it to make sure X went
to Y. Or I could have just said that I wanted to see hard copies of everything
in one big folder with an index—everything that was found was in that folder
and I physically looked at it.
The AGD's resources
When questioned about available resources, the AGD confirmed that it had
been the subject of efficiency dividends and other cuts, and that this may have
contributed to the AGD's failure to provide the relevant documents to the
Thawley‑Comley review team. Mr Moraitis declared:
I did not want to give an excuse—and Senator Collins picked
me up on that point—but it was a period where there was not full staffing. It
was coming off a very intense period of work. That is not an excuse. That just
puts it into context. It did not happen in February, March or April when
everyone is going at full bottle and is 100 per cent full-steam in terms of
work. It is that period between New Year, the first half of January and the end
of January when people come and go, people are doing other people's work and we
do the best we can.
The committee accepts that the AGD was still experiencing a shortage of
resources by 2 February 2015 when junior officers failed to notify senior
officers of the communications with the Thawley-Comley review team and the AFP.
Mr Moraitis reassured the committee that budgetary measures aimed at
cost‑savings may be overcome without affecting the AGD's current level of
resourcing. Mr Moraitis stated:
...we just need to prioritise. I might have to set up things
like a task force when you need to do something like this, where you say,
"Okay, I need two or three people offline for three, four or five weeks,
and this is their job full time," and they report to someone senior who is
doing that. If that means that an area loses two, three or four people for a
period of time, so be it. That is one way of doing it. The use of task forces
for high-priority issues is a normal procedure in government. It has been used
for years now. The reality is resources are tight, staff numbers are tighter,
and there are ongoing priorities in the day job that Ms Jones has to work on
and Mr Sheehan does as well, as do all my staff. So a task force is one
way to do it, where you assign a group of officers who are good at this stuff
to come together and work on that as a priority 24/7.
The AGD's protocols, procedures and staff training
Mr Moraitis explained that the AGD has developed and promulgated, via
the AGD intranet, a protocol defining how to collate information to be provided
to an inquiry, stating:
As I said in the first hearing, I asked my department to look
at a protocol of procedures of how you collate material that you provide for
inquiries and other things. That has been done. I have had a look at it and I
was pretty satisfied with it. It is now being promulgated. I raised it with all
my executives. I raised it three or four weeks ago at my executive meeting with
all my senior executive staff—branch heads and FASs. They have been told to
acquaint themselves with it. It is on our intranet. It is there on the first
page of the intranet—I have seen it. I have clicked in to see that it is there.
The case now is just to ensure that I keep reminding people it is there, don't
just leave it on the intranet and not use it, and actually use it when you do
these things. And I think there has to be a more hands-on approach from someone
at a senior level who is the assigned senior officer who accounts to senior
management, in my case, me as the secretary that it has been done to their
satisfaction. Short of sitting down and doing it myself—and if in the future I
have to, I will do it myself.
Mr Moraitis noted that he had been looking at methods to train staff to
better equip them to process documents and conduct document searches. He stated
Since 1 July, the Australian Government Solicitor has come
into the AGD as a functional area, and I want to speak to the Australian
Government Solicitor about getting his advice on how they do document searches
and how they collate. Obviously, they have a lot of experience because of
litigation and discovery. I am thinking about what sort of advice and training
they could give to our staff as well because they are very experienced in discovery
and other processes of document retrieval. So I will be following that up as
Mr Moraitis noted that the AGD is comprised of various divisions which
may, from time to time, need to be restructured to maximise resources and allow
the AGD as a whole to complete its work.
The committee observes that departmental restructuring may involve requiring
officers to undertake further training and be more flexible, to better enable
Responding to sensitive correspondence
When asked whether he intended to conduct a further review into the
handling of correspondence on national security-related concerns by the AGD, Mr
Moraitis stated that he did not have any such intention. Mr Moratis explained:
...after the raising of the security alert levels, the acting
secretary...informed the staff about the heightened security level, to be
vigilant, to be alert. That built on their basic professional dealing with
correspondence, and officers at senior levels—EL, director level or above—are
the persons who decide how to deal with correspondence. There is a clear
protocol in place about dealing with threatening letters, emails or phone
calls...There are occasions where we do refer individuals in those situations
to the relevant authorities to deal with those concerns...my strong view at this
stage is that you still rely on the judgement of professional policy officers
to make judgement calls about these things, based on their experience and their
knowledge, and, if they have doubts, to raise them up the line with their
supervisors if they feel that it is a borderline issue. That is how I would
approach it at this stage. That is not to say that, down the track, I may
consider further things.
When asked about the use of the term 'Caliph' in the AGD's response to
the Monis letter, dated 5 November 2014, Mr Moraitis responded:
Could I say that it is just a question of responding in the
terms that the letter is written in. If I had been an officer responding, I
possibly would have written the same thing myself, in my view. I do not see
that that has any sort of relevance, in that sense...Having said that, let me
say, in a de facto way, given the prominence of this discussion recently, that
officers would be sensitised to the new reality of scrutiny. Is it a question
of how you use correspondence? Is it a style manual issue of how you respond to
correspondence? That might be something that I could finetune.
Correction of evidence given during estimates
As noted in chapter 1, at estimates, Ms Jones and then Senator Brandis
both stated that the Monis letter had been provided to and was considered by
the Thawley‑Comley review. Ms Jones stated that:
On the night of the estimates when I provided the evidence
that the letter had been provided to the Martin Place siege review, it was my
understanding that that letter had been included in a range of documents that
had been provided to the review. My understanding that it had been provided was
reinforced by a strong recollection that I had around discussions.
However, Ms Jones also stated that 'I had this strong—though
mistaken—recollection that I had seen the letter as a member of the review team'.
Ms Jones explained that on Friday, 29 May, she had lunch with Mr Allan McKinnon,
Acting Associate Secretary, PM&C. Ms Jones advised that:
In the course of conversation with that colleague I mentioned
in passing the fact that there had been discussion at estimates...It was part of
a broader conversation that we were having about a range of matters. I
mentioned that I had recalled detailed conversations about a letter from Monis
seeking legal advice from the minister. During the course of that conversation
it became clear that the letter we had had quite a detailed discussion
about—and there were several that were provided to the review where Monis had
written to ministers asking for legal advice—was not the 7 October letter to
the Attorney-General. So at that point I became aware of the fact that I could
not conclude conclusively that as a member of the review team I had seen the 7
October 2014 letter from Monis.
Ms Jones explained that, on Saturday, 30 May 2015, she went into work,
where she reviewed the relevant Hansard transcript from estimates. She
...at that point I concluded that we should take further steps
to categorically confirm whether or not the letter had been provided. So, on
the morning of Monday...1 June, I contacted Tony Sheehan in the department to
indicate that I felt that we needed to take some steps to clarify definitively
whether that letter had been provided by the department to the Martin Place
siege review during the time of the review.
Ms Jones continued, by stating:
I was on leave at that time, so Mr Sheehan then undertook to
look into the matter to try and give a definitive answer in terms of whether
the letter had been provided. At that point, he and I did have a conversation
about the fact that my evidence would need to be corrected if investigations
did determine that the letter had not been provided.
During questioning on the circumstances in which a media release of 28 May 2015
was removed from Senator Brandis's ministerial website, the AGD was asked on
notice to produce records of communications between officials and the office of
Senator Brandis. At this point, Ms Jones admitted:
Can I clarify what I said before? You asked if I had any
conversations with anyone on the Friday afternoon. Mr Sheehan and I did have a
brief conversation late on Friday afternoon following that lunch. I said to him
at that point that we probably needed to undertake some investigation to
clarify that we definitively have provided the letter. I spoke to him both on
Friday night and on Monday morning.
Mr Sheehan confirmed that:
...I recollect Ms Jones speaking to me. It was on Friday night.
On Friday night I did not do anything with that information, but after Ms
Jones called me on the Monday morning I went to see the Secretary, and I said
to the Secretary that Ms Jones had called me, and it was at that point that the
Secretary asked me to oversee a review.
Mr Moraitis added that when Mr Sheehan approached him, he asked Mr Sheehan
to clarify what had happened. Mr Moraitis then went to Senator Brandis to tell
him that the matter would need to be looked into further. Mr Moraitis stated
that Senator Brandis had instructed him:
...to conduct an inquiry to get the facts, to ascertain what
had happened, whether the letter had been passed to the review and, if not by
that time, did the inquiry have those letters separately, and what happened and
why? And if it was true that the review had not inspected those letters then I
should confirm that and have the record corrected as soon as possible...As of
Monday night I still did not understand whether the letter had been passed or
not. Had it been passed [on] by some other agency? Did the inquiry have it? At
that stage Mr Sheehan had told me the coroner had the correspondence. It
appeared that our searches had provided that correspondence. So, there were all
these inconsistencies. Neither Mr Sheehan nor I was confident of where we
stood on that letter. So, that is where it was. And, as I said, it took a few
days, and I asked Mr Sheehan to conduct a thorough, quick review to ensure that
we had captured everything. If there had to be a correction of the record,
which I guess was the gut feeling at that stage—that it was possible, or
likely; I do not know what stage it was at—I wanted the correction to be one
correction, to be the absolutely correct correction. I did not want a further
Mr Sheehan reported that by Thursday, 4 June 2015, after consulting with
the relevant officers and repeating the searches, the internal review team had
a complete understanding of what had occurred. The internal review determined
that the AGD had not provided the Monis correspondence to the Thawley-Comley
review, due to the incident with the second tab of the spreadsheet. It was at
that point that Ms Jones corrected the record.
When asked why someone did not contact PM&C to directly ask if the
Thawley‑Comley review team had received the Monis letter, Mr Sheehan
confirmed that he 'did speak with people who had been on the review' and that
he had gone over to the offices of PM&C on the morning of Tuesday, 2 June 2015,
to deliver copies of the documents listed in the second tab of the spreadsheet.
Persistent questioning about why he had not contacted PM&C on Monday, 1
June 2015, led Mr Sheehan to state:
There may have been contact with PM&C on the Monday as
well. I said I went to PM&C on the Tuesday with the documents from the
second tab of the spreadsheet.
Mr Sheehan reiterated this point by stating:
My first discussion with the review was on Tuesday, 2 June...We
asked advice as to whether they had the documents and we had a general
discussion about that but did not expect to get any information about them at
that time...We asked them to provide advice as quickly as possible.
Although Mr Sheehan stated 'it was clear to me on the Monday that the
document was not in the batch that had been sent over',
he later assured the committee that by Monday, 1 June 2015, he could not have
categorically said that the Monis letter had not made its way from the AGD to
the Thawley‑Comley review team by some other pathway.
However, Mr Sheehan later informed the committee that 'at 9.30' on Monday, 1
June 2015, 'PM&C advised that they did not have the letter in question'.
The AGD subsequently corrected this information, stating that:
...the first advice that PM&C gave to the department about
the letter in question was at 12:15pm on 1 June. That advice stated that
PM&C had "checked the index of AGD documents for the Martin Place
Review very carefully. The letter is not there."
Mr McKinnon confirmed that at 5.30 pm on Monday, 1 June 2015, he
contacted the AGD asking them whether they intended to correct Ms Jones's
evidence at estimates. The email stated:
Michael Thawley rang me from PMO. He wanted to know whether
AGD had corrected the Senate Estimates record the other night where K Jones had
said that [t]he Monis Letter was provided to the Martin Place Review team.
He said that Senator Bishop [sic] had repeated the same line
today. He wanted AGD to correct the record and to notify Senator Bishop's [sic]
office of the correction.
Mr Moraitis acknowledged that by Monday, 1 June 2015, he 'was certainly
focused on ensuring that the record would be corrected' but was concerned about
the nature of the correction. When explaining why he had not immediately informed
the committee of his suspicions at that point, Mr Moraitis advised that:
...personally I did not realise that you could half correct the
record. My view would be that the record should be corrected absolutely. That
has always been my understanding, so that is a good clarification for me...—to
be honest, I should have known this but I did not—that I can put on notice a
correction to say, "We're not sure about the answer we gave last week, but
we're following it up." That is a correction. That would have been a good
course of action too, I gather.
Attorney-General's media release
The AGD confirmed that on or around 3.00 pm on Thursday, 28 May 2015,
the AGD's web publishing area published a media release on the ministerial
website of Senator Brandis. The AGD stated:
The department subsequently removed the release from the
Attorney‑General's website on 29 May following an assessment by an
officer in the department that placing the release on the website may not be
consistent with the "Guidelines for Ministerial and Agency Websites"
issued by the Department of Finance. In deciding to remove the release, the
officer had regard to the statement in the Guidelines that "agency-funded
websites should not contain material of a party political nature". In
making the decision to remove the media release the officer did not consult the
The Web Guide: Guidelines for Ministerial and Agency Websites (web
guidelines) provide that:
...individual judgement will be required. For example, a
minister's explanation and defence of government policy might draw distinctions
between Government and Opposition policies. Such material may be placed on a
ministerial website funded by an agency. However, material that relates solely
to party political issues or that could be categorised as "how to
vote" material may not be placed on an agency-funded site.
If agency staff are concerned about material placed (or
proposed to be placed) on an agency-funded website, they should raise those
concerns promptly with their minister's office.
Mr Sheehan explained that the decision to take down the media release
resulted from a 'discussion between only two people in the department—one
person from web publishing, who saw it, and then another person in
Mr Sheehan confirmed that the respective officers failed to communicate
their decision and subsequent actions. Mr Sheehan also acknowledged that the
web guidelines had not been properly followed as 'the matter should have
been reported up and should also have been communicated to the Attorney's
In answer to a question taken on notice asking 'How many of the Attorney‑General's
media releases have been taken down from the Attorney-General's website since
Senator Brandis became Attorney-General?', the AGD responded:
It is not possible to provide a figure for the number of
Attorney-General media releases that the department has taken down since
September 2013. To do so would involve a significant diversion of resources.
However, the department is able to advise that the media release of 28 May 2015
is not the only media release the department has taken down or not put up since
September 2013. Whenever a decision is made to take down or not put up a media
release the officer making the decision has regard to the Guidelines for
Ministerial and Agency Websites.
When asked how non-conforming press releases are put up in the first
place, Mr Moraitis stated:
My understanding is that you have a person who is an IT
person called a webmaster, and they put it on because that is their job. But
then there is someone who actually does the checking to see if the content is
right. It is the nature, again, of some people who do their job, which is the
IT job, and someone who does the checking...
Mr Sheehan confirmed that the AGD would look into the process to ensure
that the web guidelines are properly implemented in the future.
Committee's views and recommendations
The committee accepts the evidence of Mr Moraitis that administrative
error was the reason why the five documents on tab two of the spreadsheet were
not provided to the Thawley‑Comley review.
The committee does not wish to imply that the Monis letter was deliberately
withheld from the Thawley‑Comley review. However, the committee questions
the timing of the correction of evidence given during estimates by both Ms
Jones and Senator Brandis. The committee has formed the view that the evidence
was not corrected at the earliest opportunity. Rather, the committee believes
the corrections were delayed until after question time on Thursday, 4 June 2015,
so that any immediate parliamentary scrutiny of the corrections would be
Inconsistency of evidence and a
failure to be proactive
The committee is concerned about the manner in which this inquiry has
been treated by the AGD.
The committee considers that the AGD has not fully cooperated with the
inquiry. The AGD failed to be proactive in its disclosure of relevant
information, making the provision of information contingent upon the right
question being asked. Furthermore, the committee takes the view that on more
than one occasion corrections or clarifications were only made by the AGD after
inconsistencies were highlighted by the committee. The failure to properly
explain at the first instance why the index of relevant documents had been
separated into two tabs is one example. Another example is the initial failure
to disclose the AGD's communications with the AFP. Further examples include the
way in which the AGD explained the removal of the Attorney-General's media
release dated 28 May 2015, and the time at which Ms Jones first spoke to
Mr Sheehan about the Monis letter, after estimates. Yet another example
was demonstrated during the later stages of the inquiry, when the AGD provided
further volumes of email correspondence and was asked why these had not been
In the totality of all the searches, they had been parts of
chains and maybe had not been separated out...It came about as a course of
doing a very final check to ensure that we provided everything comprehensively
to the committee and I made the decision that they should be provided.
A further key example of inconsistent information was that provided by
the AGD about when the failure to provide the Monis letter to the
Thawley-Comley review was discovered and to whom it was known.
At the public hearings on 19 June 2015 and 3 August 2015 Mr Moraitis
claimed that senior officers of the AGD were unaware that the Monis letter had
not been provided to the review until 1 June 2015.
Documents provided to the committee by the AGD showed that departmental
officers knew of the error well before June. An email from an AGD officer to an
AFP Federal Agent dated 30 January 2015 stated 'I'm confident we'll have
all our processes and authorities sorted by then'
and suggests to the committee several AGD officers knew of concerns about
whether the Monis letter had been provided at this time. Another email
provided to the committee on 18 August 2015 showed that at 11.35 am on
2 February 2015 a Senior Legal Officer, an Acting Senior Legal
Officer, a Principal Legal Officer and a Director were parties to an email asking
whether the letter from 'Sheikh Haron' to the Attorney-General dated 7 October
2014 had been provided to the review.
Clearly, at least four AGD officers knew about the failure to provide the Monis
letter to the Thawley‑Comley review team by early February 2015.
Duty to the committee
Senate committees are appointed by the Senate to investigate and examine
in detail particular matters on its behalf. In accordance with Senate
procedure, the inquiry which is the subject of this report was referred to the
committee by a majority vote in the Senate. On this occasion, the committee is
of the view that the AGD has not approached or engaged with the committee in
the most appropriate and professional manner. The committee believes it is
timely to remind the AGD, and the Commonwealth public service more broadly,
that Senate committees are an extension of the Senate and their proceedings are
parliamentary proceedings; public agencies and their staff must be accountable
to and respectful of committees in the same way required of them by the Senate.
With particular regard to Senate estimates, this process provides
senators with an opportunity to examine the operations and expenditure of
government. It plays a key role in parliamentary scrutiny of the executive.
Senate committees, both in estimates and in inquiries, are fundamentally
reliant on the accuracy of evidence provided to them. Where the information
sought by a committee pertains to the workings of government agencies and
statutory authorities, those agencies and authorities themselves are better
equipped than any other party to provide detailed information about the
implementation, administration and cost of government policies.
In order for the Senate to properly oversee the accountability of government
agencies, it is imperative that evidence given during estimates is accurate.
Where evidence provided to a committee is incorrect the onus falls to the
witness, or the relevant department or statutory agency, to correct the error
as soon as it is identified. A witness must be proactive and apolitical in this
Privilege Resolution 6(12)(c) provides that the giving of false and
misleading evidence, or evidence which a witness does not believe on reasonable
grounds to be true or substantially true in every material particular may be a
contempt of the Senate. In determining whether a contempt has been committed,
three criteria must be taken into account:
- the principle that the Senate's power
to adjudge and deal with contempts should be used only where it is necessary to
provide reasonable protection for the Senate and its committees...against
improper acts tending substantially to obstruct them in the performance of
their functions, and should not be used in respect of matters which appear to
be of a trivial nature or unworthy of the attention of the Senate;
- the existence of any remedy other
than that power for any act which may be held to be a contempt; and
- whether a person who committed any
act which may be held to be a contempt:
- knowingly committed that act, or
- had any reasonable excuse for the
commission of that act.
The duty to correct is outlined in the Government guidelines for
official witnesses before Parliamentary Committees and related matters,
5.6. Correction or clarification of evidence
5.6.1. Witnesses will receive
transcripts of their evidence in the days following their appearance. The
transcript should be examined promptly to establish whether any evidence needs
to be corrected or clarified. On occasions, a witness may become aware of the
need for correction or clarification before the receipt of the transcript or,
in the case of a written submission, before the commencement of hearings.
5.6.2. Once the need to provide
a committee with revised information has been established, it is most important
that the committee receive that revised information at the earliest
opportunity. In the case of officials who made submissions or appeared as
witnesses in relation to the administration and implementation of government
policy...the departmental secretary or agency head (or senior official who
represented the secretary at the hearing) should be informed that revised
information is to be provided. Depending on the nature of the correction, it
may also be appropriate to inform the minister. Officials need to keep in mind
that, while their evidence remains uncorrected or unclarified they are
vulnerable to allegations that they have misled a committee.
5.6.3. Supplementary information
for a committee should be forwarded to the committee secretary. If uncertain of
the most appropriate way to provide a committee with additional or corrected
information, officials should seek the guidance of the committee secretary.
Obligation of honesty and candour
As discussed above, it is a long accepted and well established principle
that if ministers or departmental officials for whom they are responsible have
given misleading evidence to the Senate or a Senate committee they are expected
to correct the record as soon as practicable. This obligation is consistent
with the doctrines of ministerial responsibility and parliamentary accountability.
Consistent with the importance placed on this obligation of honesty and
candour, ministers have been censured for misleading the Senate. For example,
on 27 June 1996, Senator John Herron was censured by the Senate for
giving misleading answers in relation to funding of Aboriginal programs.
It is also open to the Senate to censure a minister for failing to
correct misleading evidence in a timely manner, if the Senate comes to the view
that there was no excuse for the correction not to have occurred earlier, or
that the minister's conduct was culpable.
In respect of departmental officials, the Australian Public Service Code
of Conduct requires an Australian public servant to act honestly and with
integrity and to act with care and diligence. Moreover, an Australian public
servant must not provide false or misleading information in response to a
request for information that is made for official purposes in connection with
the employee's APS employment.
The committee accepts the evidence of Ms Jones, that at the time of
giving her evidence before estimates on 27 May 2015, Ms Jones believed her evidence
to be true and correct
and in so doing, at that time, she did not intentionally or knowingly give
false or misleading evidence. However, the committee believes that the AGD was
in a position to correct the error or contact the committee and explain that
the record may need to be corrected at least three days, if not six days,
before it did. In the opinion of the committee, once the error or suspected
error had been identified, the first priority of the AGD was to notify the
committee. As soon as the error was suspected, the AGD should have contacted
the committee to ensure that the committee was not misled, inadvertently or
otherwise. The committee takes the view that the AGD should have contacted
the committee on 29 May 2015 to flag its suspicions that the evidence given on
27 and 28 May 2015 at estimates may have been given in error. Then, once the
error was confirmed, on 1 June 2015, the AGD should have confirmed that
the Thawley‑Comley review team had not received the Monis letter or the
AGD response attached to it under the batch sent in response to the formal
request and as such it was highly likely that it had not been considered by the
Notwithstanding that, in the committee's opinion, the internal review
should have been conducted in February 2015 when the AGD became aware that the
letter from Mr Monis had been omitted from the documents provided to the review,
the committee believes that, while necessary measures, consulting the
Attorney-General and conducting an internal review must be considered secondary
to the duty to inform the committee of the suspected error. As a result of the
delay in informing the committee of the error, the committee and the Parliament
were misled for a period of nearly eight days. While the government claims that
the Monis letter may not have had any effect on the report of the Thawley‑Comley
review, the delay limited the capacity of the committee and the Parliament to
scrutinise the actions of the AGD.
The committee reminds government agencies and statutory
authorities, that where evidence is given in error to a Senate committee, the
primary duty of the department or statutory authority is to the committee.
Witnesses must bring errors or suspected errors to the attention of the
relevant Senate committee as a priority.
The committee notes Mr Moraitis's statement that he did not realise that
the AGD could partially correct the record prior to a final correction.
As discussed at paragraph 2.55, departmental officers in the division
reporting to Ms Jones were aware during early February 2015 that the letter
from Mr Monis had not been provided to the Thawley-Comley review. Mr Moraitis
claimed that senior officers were not aware of this until 1 June 2015; Ms Jones
indicated that she suspected the error
and raised it with Mr Sheehan on 29 May 2015.
It may be the case that senior AGD officers did not know of the failure
to provide the Monis letter to the Thawley-Comley review in the period between
2 February 2015, when the error was first known to the department, and
late May/early June 2015. Irrespective, emails provided to the committee showed
that the Department of Prime Minister and Cabinet was convinced by 12.15 pm on
1 June 2015 that the Monis letter had not been provided to the
review, and the Attorney-General's office (AGO) was alerted to the error by at
least 1.54 pm that same day.
Further, a draft response from Ms Jones to the committee to correct her
evidence of 27 May 2015 had been prepared by 3.17 pm on 1 June 2015.
It remains unclear to the committee why it then took another three days
for the AGD to advise the committee of the error and the incorrect evidence
given on 27 and 28 May 2015; the committee is not assuaged by Mr
Moraitis's argument that the delay was the result of his misapprehension about
partially correcting the record.
The committee considers that statements by both Mr Moraitis and
Mr Thawley about correcting the Hansard record show a lack of
understanding on the part of Commonwealth officials about their roles and
responsibilities with respect to parliamentary accountability, correcting the Hansard
record and providing accurate and timely information. The committee believes
that senior executive staff (SES) must be better informed about these
responsibilities and therefore recommends that SES across the Australian Public
Service, including the secretaries of PM&C and the AGD, undergo training in
parliamentary accountability provided by the Department of the Senate.
The committee recommends that senior executive staff across the
Australian Public Service, including the secretaries of the Department of Prime
Minister and Cabinet and the Attorney-General's Department, undergo training in
parliamentary accountability provided by the Department of the Senate,
including but not limited to seminars routinely provided for senior executives.
Document management and
The committee stresses that the failure of the AGD to provide relevant
correspondence created after 2010 to the Thawley‑Comley review team posed
a significant issue for national security. The committee believes that the
failure to properly index and then provide information to the Thawley-Comley
review went beyond the Monis letter itself; indeed, during the course of the
inquiry, the question of 'what if this letter had been more significant?' was
Security assessments do not rely solely on individual pieces of
information in isolation; they also give consideration to the cumulative impact
of intelligence drawn from various sources. It is likely therefore that the
Monis letter may have contributed to a more accurate overall assessment of the
security situation in Australia if it had been shared with intelligence
agencies at an earlier stage. The committee highlights that both the NSWPF and
the AFP determined that the letter had some significance and specifically
requested that the AGD provide a copy of the letter to the JCTT. The error by
the AGD pointed out a weakness in the process for assessing whether
correspondence was relevant. The committee concludes that, in the current high
security-threat environment, all government agencies and statutory authorities
need to ensure that any correspondence that may have national security
implications is referred immediately to relevant intelligence agencies.
The committee commends the AGD for developing a document search and
document management protocol to ensure that an error such as this is not
However, a formal protocol is only part of the solution. The committee
understands that the protocol has been published on the AGD's intranet and that
the AGD's senior executive officers have been asked to acquaint themselves with
The introduction of a formal protocol must be complemented by the allocation of
adequate resources and training of AGD officers about how to best implement and
adhere to the protocol. The committee supports the suggestion by Mr Moraitis of
integrating into the protocol the institutional knowledge held by the
Australian Government Solicitor on litigation discovery and document searches.
The committee recommends that the Attorney-General's Department:
formally draw to the attention of all of its officers' the
document search and document management protocol;
implement appropriate training programs to ensure adherence to
the protocol; and
consult with the Australian Government Solicitor for the purpose
of reviewing this protocol in a comprehensive and purposeful manner.
The committee is also cognisant of the likely contribution of resourcing
and restructuring issues to the AGD's error in handling sensitive
correspondence. The committee recommends that the AGD review the allocation of
resources across its various divisions. This review should take account of the
risks posed by any cross‑divisional movement, using a formal risk
assessment model. The committee further recommends that, in order to mitigate
risks associated with the ad hoc use of staff across departmental divisions,
the AGD develop and implement appropriate training for its staff relating to intra-departmental document
management and communication.
The committee recommends that the Attorney-General's Department:
review the allocation of resources across its divisions;
undertake formal risk assessments to mitigate risks associated
with the cross-divisional movement of staff and the ad hoc use of staff across
departmental divisions; and
develop and implement training for its staff relating to intra-departmental
document management and communications.
Responding to sensitive correspondence
The committee notes the use of the word 'Caliph' in the AGD's response
to the Monis letter and the explanation by Mr Moriatis that this was merely a
question of responding in the terms in which the letter was written.
However, given the heightened national security environment, the committee
takes the view that the language used in responding to correspondence of a
sensitive nature is a very important issue, as Mr Thawley conceded (see
paragraph 2.19). The use of terms such as 'Caliph' may be read as de facto
acceptance of the title and legitimisation of an organisation or cause. The
committee suggests that the AGD reflect on the importance of language used in
correspondence, especially in relation to matters of a sensitive nature, such
as correspondence that refers to a known terrorist organisation.
The committee recommends that the Attorney-General's Department
implement a training program to ensure that officers responding to correspondence
are better aware of the political and cultural connotations of titles and
names, especially in relation to known terrorist organisations.
To ensure that staff across the AGD is appropriately trained to
implement document management and search functions as intended, and to respond
to correspondence appropriately, the committee recommends that the AGD subject
its document handling procedures to both regular and random audits.
The committee recommends that the Attorney-General's Department subject
its document handling procedures to both regular and random audits, to inform
further development of protocols, and training and resource requirements.
Principles for handling and
responding to sensitive correspondence
More generally, the committee believes that the AGD needs to improve its
engagement with the relevant intelligence agencies when handling and responding
to sensitive correspondence.
The AGD should establish processes whereby intelligence and security
agencies are routinely informed about and consulted on sensitive
correspondence, especially where it has or may have national security
The committee recommends that the Attorney-General's Department routinely
consult the relevant intelligence and security agencies in relation to
sensitive correspondence, especially where it has or may have national security
This approach to dealing with sensitive correspondence should not be
restricted to the AGD. The committee recommends that all Commonwealth government
agencies examine their processes in this regard and ensure that procedures are
in place so that sensitive correspondence which has or may have national
security implications is brought to the attention of the relevant intelligence
and security agencies in a timely manner.
The committee recommends that all Commonwealth government
agencies ensure that they have procedures in place to bring sensitive
correspondence which has or may have national security implications to the
attention of the relevant intelligence and security agencies in a timely
Taking down ministerial media
The committee is concerned about whether the web guidelines have
been applied consistently by the AGD. The committee questions whether two
people, who are qualified experts in ICT and communications policy respectively,
are in the best position to make a determination on whether a media release is
of a party-political nature. The committee cites the tabled media release of 28
and suggests that there appears to be a high degree of inconsistency in the
application of the guidelines by the AGD. The committee notes that the officers
had failed to follow the web guidelines, not only because the webmaster allowed
the press release to be published in the first place but also because the webmaster
and the officer from the communications division failed to raise their concerns
and consult with the minister's office.
The committee takes the view that a decision to publish or take down a
media release from an agency-funded website on grounds that it contains or may
contain material of a party-political nature is a decision that must be made
through a consistent, objective and apolitical process.
The committee recommends that the Attorney-General's Department
review its procedures related to the application of the Web Guide:
Guidelines for Ministerial and Agency Websites in a comprehensive and
purposeful manner to ensure that these guidelines are applied consistently,
objectively and apolitically.
Lazarus Senator Catryna
Jacinta Collins Senator the
Hon Joe Ludwig
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