Chapter 2

Chapter 2

Key issues

2.1        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?

2.2        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.[1]

2.3        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 February 2015.[2]

2.4        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 Cabinet (PM&C).[3]

2.5        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.[4]

2.6        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.[5] When asked about why the spreadsheet file was divided into two tabs, Mr Sheehan responded:

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.[6]

2.7        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 system.[7] 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.[8]

2.8        Mr Neil Gaughan, Acting Deputy Commissioner, National Security, Australian Federal Police (AFP), explained when the AFP first became aware of the Monis letter:

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 thereafter.

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...[9]

2.9        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.[10] 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'.[11]

2.10      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.[12]

2.11      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 AGD stated:

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.[13]

2.12      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 passed through.[14]

2.13      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.[15]

Consideration of the Monis letter by the Thawley‑Comley review

2.14      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'.[16]

2.15      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.[17]

2.16      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.[18]

2.17      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'.[19]

2.18      Mr Thawley explained that in his opinion Mr Moraitis dealt with the correction of evidence issue in a reasonable manner.[20] 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 Thawley stressed:

...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.[21]

2.19      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.[22]

The AGD's document handling processes

2.20      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 'haphazard'.[23] 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 staffed.[24] 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.[25]

The AGD's resources

2.21      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.[26]

2.22      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.

2.23      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.[27]

The AGD's protocols, procedures and staff training

2.24      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.[28]

2.25      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 that:

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 well.[29]

2.26      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.[30] The committee observes that departmental restructuring may involve requiring officers to undertake further training and be more flexible, to better enable cross-divisional support.

Responding to sensitive correspondence

2.27      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 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.[31]

2.28      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.[32]

Correction of evidence given during estimates

2.29      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.[33]

2.30      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'.[34]

2.31      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.[35]

2.32      Ms Jones explained that, on Saturday, 30 May 2015, she went into work, where she reviewed the relevant Hansard transcript from estimates. She noted: 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.[36]

2.33      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.[37]

2.34      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.[38]

2.35      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.[39]

2.36      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: 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 correction.[40]

2.37      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.[41]

2.38      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.[42] 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.[43]

2.39      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.[44]

2.40      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',[45] 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.[46] 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'.[47]

2.41      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."[48]

2.42      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.[49]

2.43      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.[50]

Attorney-General's media release

2.44      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 Attorney-General's office.[51]

2.45      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.[52]

2.46      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 communications'.[53] 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 office'.[54]

2.47      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.[55]

2.48      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...[56]

2.49      Mr Sheehan confirmed that the AGD would look into the process to ensure that the web guidelines are properly implemented in the future.[57]

Committee's views and recommendations

2.50      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.[58] 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 thwarted.

Inconsistency of evidence and a failure to be proactive

2.51      The committee is concerned about the manner in which this inquiry has been treated by the AGD.

2.52      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 provided earlier:

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.[59]

2.53      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.

2.54      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.[60]

2.55      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'[61] 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.[62] 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

2.56      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. 

2.57      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.

2.58      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 regard.

2.59      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:

  1. 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;
  2. the existence of any remedy other than that power for any act which may be held to be a contempt; and
  3. whether a person who committed any act which may be held to be a contempt:
    1. knowingly committed that act, or
    2. had any reasonable excuse for the commission of that act.[63]

2.60      The duty to correct is outlined in the Government guidelines for official witnesses before Parliamentary Committees and related matters, which specify:

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.[64]

Obligation of honesty and candour

2.61      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.[65]

2.62      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.

2.63      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.[66]

2.64      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[67] 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 review team.

2.65      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.

Recommendation 1

2.66      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.

2.67      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.[68]

2.68      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[69] and raised it with Mr Sheehan on 29 May 2015.[70]

2.69      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.[71] 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.[72]

2.70      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.

2.71      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.

Recommendation 2

2.72      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 intra-departmental communication

2.73      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 raised.[73]

2.74      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.

2.75      The committee commends the AGD for developing a document search and document management protocol to ensure that an error such as this is not repeated.[74] 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 it.[75] 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.

Recommendation 3

2.76      The committee recommends that the Attorney-General's Department:

2.77      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.

Recommendation 4

2.78      The committee recommends that the Attorney-General's Department:

Responding to sensitive correspondence

2.79      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.[76] 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.

Recommendation 5

2.80      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.

2.81      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.

Recommendation 6

2.82      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

2.83      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.

2.84      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 implications.

Recommendation 7

2.85      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 implications.

2.86      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.

Recommendation 8

2.87      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 manner.

Taking down ministerial media releases

2.88      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 May 2014[77] 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.

2.89      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.

Recommendation 9

2.90      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.

Senator Glenn Lazarus                                                     Senator Catryna Bilyk

Senator Jacinta Collins                                                     Senator the Hon Joe Ludwig

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