The dog ate the homework
Tuesday, March 3, 2015
Justinian in Attorney General's Department, Christos Moraitis, George Brandis, Gillian Triggs, National security, Stephen Keim SC & Alex McKean

Secretary of the Attorney General's Department loses crucial notes of conversation with Senator Brandis and Gillian Triggs ... Chris Moraitis' briefcase goes missing on world trip ... What else was in the briefcase that might pose a risk to the nation's security? ... Losing confidence ... Public Service Code of Conduct needs to be followed ... Stephen Keim SC and Alex McKean are on the case 

THERE'S no limit to the misfortune that can befall vital documents. The dog's consumption of homework is one of many possible mishaps. 

Into the 1980s, court rooms in Queensland heard that the witness's taxation and other records were destroyed in the 1974 flood.

Police officers in disputed cases often have, unaccountably, forgotten to switch on their hand-held recording devices the moment before the defendant's nose and eyes ran into a door while attempting to assault the police. On one occasion a visiting Master of the Rolls, who was to speak at a fundraising dinner for community legal centres, had lost his speech notes out of a four-wheel-drive on Fraser Island.

It is doubtful whether those notes would have improved the MR's speech, but they could not have made it any worse.

Dogs do eat homework, on occasion, and records do go under in floods. The great thing about excuses is that it is difficult to rule out the possibility that they might be true. 

Indeed, embarrassing and unlikely things have happened even when not proffered by way of excuse.

For example, in 2008, a senior intelligence official left an orange folder of top secret documents on a train in England. The folders contained details of what the UK knew about the capabilities and vulnerabilities of Al-Qaeda.

A member of the public handed the folder in to an office of the BBC. A police investigation into the security breach was called by then Prime Minister Gordon Brown.

More recently, in 2013, the current UK Prime Minister, David Cameron, was criticised for apparently leaving a top secret red box unattended, also on a train.

Closer to home, in 2004, Robert Owen-Jones, a US-based member of the Australian Office of National Assessments lost his briefcase in the US Congress building. The briefcase contained top secret US intelligence files.

Although the briefcase was found just hours later, apparently unmolested, the incident was described as a serious security breach and Owen-Jones was recalled to Australia with his tail between his legs.

What these incidents illustrate is that, if the dog does eat your homework, unless you are the British prime minister, both you and the dog are likely to be made accountable.

The latest emanation of the missing briefcase meme is central to the unresolved controversy concerning the government's decision to discuss an alternative future career with the President of the Australian Human Rights Commission, Professor Gillian Triggs. 

Christos Moraitis PSM is the secretary of the Attorney General's Department. It was he who spoke, as emissary of attorney general Brandis, to Professor Triggs and it was he, who, in his own words, told her that the AG did not have confidence in her as president of the AHRC, but had high regard for her legal skills and that the government would be prepared to consider, positively, a senior role for the professor.

The detail of Moraitis' recollection of the event is important. On its own, it raises questionable conduct on his behalf and that of the attorney general.

Moraitis and Brandis have sought to present their version of events in a more favourable light than Professor Triggs' own recall of the meeting.

The Labor Party referred the matter to the Australian Federal Police to investigate whether the conversation amounted to a criminal offence on the part of Moraitis and, through him, Senator Brandis.

The detail of conversations can be of great importance. That's where Moraitis' official notepad would come in handy. It would if Moraitis had not lost it.

Come in, the hungry dog. Moraitis said that he "travelled to three countries in two weeks and I have lost those notes, losing my briefcase by mistake". 

Note taking and public servants are joined at the hip. 

The Australian Public Service Values and Code of Conduct in Practice provides that it is important to record and to maintain in an accessible form "significant events, including meetings and discussions with ... stakeholders ... which may be significant in terms of policy or programme decision making".

The code provides that good record-keeping is part of good governance. It says that the use of personal diaries to record discussions should not replace records that should be accessible to others.

Employees using diaries are asked to consider, on a regular basis, whether a decision or discussion is significant enough to warrant a file note.

The code also provides that it is good practice to draft a file note after a significant meeting, which may need to be endorsed by others who were present.

So, did Moraitis make a file note? And did he send it to Professor Triggs for her endorsement? If not, why not? Surely, it was a significant discussion.

And what about the experience of Mr Owen-Jones? 

Moraitis: how many secrets were in his missing briefcase?

Christos Moraitis is the most senior public servant in the Department of Attorney General. The department is responsible for oversight of the workings of Australia's policing, security and intelligence agencies including ASIO, ASIS, and the AFP.

Moraitis is the public servant through whom the most important security and intelligence issues pass on their way for decision. 

So, did the loss of the departmental head's briefcase amount to a significant security breach? And what steps have been taken to investigate and rectify that breach? In what form has Mr. Moraitis been relieved of his duties and sent home?

The Attorney General's Department publishes protective security governance guidelines for reporting incidents and conducting security investigations. The guidelines define a "security incident" as a:

"security violation, security breach, or security infringement of protective security policy [or] any other occurrence that results, or may result, in negative consequences for the security of the Australian government, its institutions and programs." 

The same Australian Public Service Values and Code of Conduct in Practice, that requires the keeping of notes, takes a dim view of their being disclosed.

The code provides by regulation that a public servant must not disclose information obtained or generated in the course of employment, where it was communicated in confidence.

A "major security incident" is defined in the security governance guidelines as: a deliberate, negligent or reckless action that leads, or could lead, to the loss, damage, corruption, or disclosure of official resources.

Examples include: loss of material classified CONFIDENTIAL or above, or significant quantities of material of a lower classification, actual or suspected compromise of material at any level, loss or suspected compromise of classified equipment or unauthorised disclosure of official or classified information.

The security governance guidelines require agency heads to facilitate procedures to ensure security incidents are reported and that adequate records are kept to report on the agency's security performance. Managers are required to ensure security incidents are reported to the Agency Security Adviser.

Agencies are to ensure policies are in place to make it easy to report security incidents and develop a mechanism for recording incidents, which will capture the date, time and place of the incident, the types of official resources involved, the circumstances of the incident, whether it was deliberate or accidental, an assessment of the degree of harm done and a summary of immediate and long term action taken.

When reporting major security incidents, the following details should be included:

The guidelines also set out procedures for investigating security incidents. An agency must at the outset determine whether an investigation should be of a criminal, security, or other nature. The procedures require agencies to set out clear terms of reference for investigations.

The Crimes Act 1914 (Cth) contains a section dealing with official secrets. Section 79(4) provides that a person who fails to take reasonable care of a prescribed document, or to ensure that it is not communicated to a person not authorised to receive it, or so conducts himself as to endanger its safety, is guilty of an offence and liable to imprisonment for six months.

That seems to be enough law and practice guidelines to make sure that the AFP's bloodhounds, and every other investigator at the Commonwealth's disposal, have already been called in and are roaming the world to find that dog who is wrongfully in possession of Christos' homework of several months, including the notes of his conversation with Professor Triggs, and his earlier conversation with Senator Brandis.

The homework must be found before some dead North Korean President uses it to attempt to put in a tender to build our next set of non-functioning submarines.

Stephen Keim SC & Alex McKean

Article originally appeared on Justinian: Australian legal magazine. News on lawyers and the law (http://justinian.com.au/).
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