The children overboard inquiry is sitting tomorrow, with senior public servant Dr Brendon Hammer under the hammer. Here’s a preview.

It’s a nasty, labyrinthine bureaucratic game these days, avoiding the taint of the children overboard lie. It’s also very unfair, because the big boys fingered for the cover-up – including Peter Reith and staffers – are refusing to play. It’s like the captain sitting on his easy chair watching his troops die on television in the war he ordered and directed. Let the small fish fry.

I discussed the emerging crisis in the Department of Prime Minister and Cabinet (PM&C) – Australia’s premier and most powerful public service organ – in Edging towards the desk where the buck stops. Since then, it’s deepened with a report by department head head Max Moore-Wilton, whose `investigation’ of alleged witness tampering by a senior officer was so unsatisfactory to the Senate that it asked a committee to decide whether to cite one or more public servants for contempt. From there, a criminal charge could be considered. It’s got so bad that when PM&C learned that the defence force had accused one of its staff of witness tampering, it saw fit to withhold that information from the Senate inquiry until AFTER the alleged victim began giving evidence. The reason? PM&C thought the inquiry would ask the right questions to get the information out of the witness.

The public has had the pleasure of an unprecedented and still unfolding expose on the inner workings of a public service operating in a culture of fear. Ironically – is there room for irony these days or is it ironic for something not to be ironic? – the Coalition government crafted a new Public Service Act in 1999 which legally enshrines an “Australian Public Service (APS) Values and Code of Conduct” statement.

Before analysing the details of Hammer affair, some background on what the government now officially requires from public servants, courtesy of a speech by Public Service Commissioner Andrew Podger at a May 31 conference called Improving Government decision-making

The new Australian Public Service (APS) Act enacts a supposedly legally binding “APS Values and Code of Conduct” statement. “One of the major responses to the increased pace of change for the Service has been the shift away from central prescriptive rules of operation, to a principles-based Public Service Act,” Podger said. The key, legally binding APS `values for decision-making’ are that it is apolitical, performs its functions in an impartial and professional manner, has the highest ethical standards, and is openly accountable for its actions to Parliament and the Australian public. An APS employee must behave honestly and with integrity, act with care and diligence, treat everyone with respect and courtesy and comply with all applicable Australian laws.

“Key words here are impartial, professional, ethical, accountable, fair, effective, courteous, honesty, integrity, compliance with the law,” Podger said. “The ethical emphasis is important. The public which has vested power and authority in public servants rightly expects that power and authority to be exercised in the highest ethical manner.”

Podger also stressed “crucial guidelines for good administrative practice” from the audit office, the ombudsman, the National Institute for Governance, and his office. They include “the importance of evidence and systematic information support, along with proper record-keeping”.

Podger cited the Auditor-General, Pat Barrett, with approval: “Documentation is important for an agency to:

* demonstrate it has taken all reasonable steps to identify and manage risks;

* provide assurance to management that the administrative processes are adequate and have integrity;

* record significant events and decisions;

* be able to review its decisions and processes thereby identifying strengths and weaknesses in the process, drawing out lessons for the future;

*in some circumstances provide support for the Commonwealths position in the event of a legal challenge; and

* meet its accountability obligations to the Government, Parliament and other stakeholders.”

Podger made two crucial points to the children overboard inquiry at a recent roundtable discussion.

* “The values and the code of conduct are in the law. They are in sections 10 and 13 of our act. There are obligations in the act on agency heads to uphold and promote the values and to ensure that there is compliance with the code of conduct.”

* “There is some tension between the values, and we should recognise that. The value about being apolitical, impartial and professional does not actually say we are independent. If we took that value on its own to an extreme, we would have major problems about responsiveness of the service to the government of the day. I also note that the responsiveness value actually includes within it the terms `frankness’, `accuracy’, `comprehensiveness’ and `honesty’- that is, if we are truly responsive to the government of the day we have got to be careful that we understand that a short term responsiveness to meet an immediate apparent requirement is not being responsive if we fail to give the frank and more detailed advice that is necessary and with full accuracy.“.

On these principles, more than one public servant would have got the chop already. But of course the government which legislated these values and standards for public servants is the same one ordering them to breach them. Yuk.

***

Here’s my May 7 Herald column on the case Moore-Wilton and Hammer had to answer after the evidence of Commander Stefan King on May 2.

PM’s man out on a shaky inquiry limb

By Margo Kingston

Months into the children overboard inquiry, it seems that early in the election campaign just about everyone in Canberra knew that kids weren’t thrown overboard and the photos proving the lie were fake. The trouble is, no-one let the voters in on the joke. As the inquiry grinds on and it becomes obvious that someone’s head has to roll, the bureaucracy appears to be playing musical chairs, while panic responses to the latest revelations are becoming surreal.

Take last week’s bombshell. Why on earth is Max Moore-Wilton conducting the investigation into whether one of his senior officers, Brendon Hammer, committed a contempt of the Senate or a criminal offence by attempting to influence the evidence of a witness at the children overboard inquiry? Let’s look at his qualifications.

First, as head of the Department of Prime Minister and Cabinet (PM&C), he presided over an internal report on the fake photos which kept his department out of the frame. In January, the officer Moore-Wilton appointed to detect “what efforts were made to correct any misinformation” found PM&C knew nothing. The Senate inquiry has established that since October 11, PM&C knew at senior levels that the photos were fake courtesy of a briefing from the Defence Department through PM&C’s defence liaison officer, Commander Stefan King.

Second, in February Moore-Wilton gave evidence to another inquiry that “None of the information … was released outside the Department of Defence. It was not released to the Department of Prime Minister and Cabinet … This constant effort to consistently say that the department was aware that the photographs were not of October 7 is not true.”

This, by itself, calls into question the quality of Moore-Wilton’s stewardship of the department.

Third, we don’t know what Hammer did with the shock news. Did he, as King expected, confirm it and report to superiors – of which there are few? If he didn’t – and Moore-Wilton must know what happened by now – Hammer should have resigned, just as a junior officer did for similar behaviour during the travel rorts affair in John Howard’s first term. And if he did pass the information higher, PM&C and its boss are out on a limb that could be cut off when Hammer gives evidence on May 22.

Fourth, Hammer’s junior Harinder Sidhu – who King also briefed – gave evidence that when Hammer ordered a private meeting with King and her to discuss the October 11 briefing, “I just gained the impression that it was not actually his idea … It was almost as if `It has been suggested to me that it would be a good idea if we got together to refresh our ideas’.”‘

If Sidhu’s impression is correct, there are very few people senior to Hammer who could have made the suggestion.

It was at the March 11 chat at the Kurrajong Hotel, which Sidhu agreed was a “rehearsal”, that Hammer, according to King, tried to cross-examine him about his recollection and suggested that “Another or a better way to describe that might be …”

Fifth, Moore-Wilton knew more than a week ago, at the latest, that Hammer stood accused of trying to tamper with a witness. Yet three days later the department told the inquiry – only after King made the allegation public – that he was “commencing a process to establish the veracity or otherwise of the allegations in order to determine what further action by him might be required”.

All this is not to suggest that Moore-Wilton is guilty of anything, but that it is farcical that he have carriage of the investigation into Hammer. In the circumstances, the Public Service Commissioner and the Federal Police are the appropriate investigators.

Attempting to influence a witness is a contempt of the Senate, which it can punish with six months’ jail or a fine. But it is much more serious; under the Parliamentary Privileges Act, it is a criminal offence to attempt to influence a witness to a parliamentary inquiry or attempt to induce this witness to refrain from giving certain evidence.

The finely woven web of omission and cover-up has now unravelled so far that attention has shifted from the Defence Department to focus squarely on John Howard’s department.

Bit by tortuous bit we edge closer to the desk at which the buck stops. Does it stop on Dr Hammer’s desk, or do we go higher?

It is time now, surely, that Moore-Wilton and others intimately involved in, or inexplicably kept in the dark about, the scandal step aside and let the truth emerge. At last.

***

As foreshadowed, Max’s report is unsatisfactory (see right-hand column for its text) and for proof I cite the fact that he saw the need to defend HIMSELF three times in the course of clearing his officers. “I can confirm that at no stage during the relevant periods in 2001/2002 have (the officers concerned) consulted me or advised me in regard to any of those matters”.

And: “I consider it worth restating that at no time did I seek to raise issues relating to `children overboard’ with you (the PM) prior to the November 2001 election.”

And: “I cannot accept the proposition that concerns were brought officially to the attention of PM&C management.”

Max’s report is a statement of the background, a collation of statements he sought – in writing for once – from the officers concerned – in writing for once – and his “comment” and “conclusion”. Such a pity no-one wrote ANYTHING when the incident actually happened. Max notes that “there are no written records or recollections that have come to light”. That’s a prima facie breach of administrative guidelines and a big impediment to accountability. Breach of the new Public Service Act, perhaps? From the man responsible for the department’s practices – the man expected to lead the public service as a whole – not a word of criticism. And no analysis, no questions, no teasing out of inconsistencies. In contemptuous fashion, he doesn’t even explore King’s sworn evidence, some of which contradicts Max’s witness statements. And no questioning of King or of the man who advised the government of alleged witness tampering, Admiral Gates. Why? He says privately it was because he was only responsible for his officers. But Hammer had moved to another department, and King was seconded to PM&C at the time of the incident!

Despite crucial conflicts of evidence between the two men on the block – Hammer and his boss Michael Potts – he ignores them and concludes: “On the basis of the material available to me to date I am of the view that there are no grounds for taking disciplinary action under the Public Service Act against Dr Hammer or any other officer of this department.” Really! Since he decided what material was before him, no wonder! I wonder what Andrew Podger would have done?

***

Now to poor Dr Hammer, the meat in this nasty little sandwich. He says he was “deeply shocked and found it difficult to concentrate” when told of the allegation that he had attempted to tamper with a witness. And doesn’t it show in his statement. He has to explain no less than five problematic incidents or personal judgements between October 2001 and April this year. Most are contradicted or disputed by other witnesses, and his recollections on one swings wildly from nothing to enormous detail.

1. What King told him, and on what basis.

Hammer states that at the meeting with Commander King on October 11, King told him “he had heard of a rumour within ADF circles that photographs in the press relating to children being thrown overboard had been taken at a different time to the time everyone thought they had been taken.”

King hotly disputes this. This was no rumour, but a formal briefing to Hammer – after a briefing from a senior officer in defence – which he expected Hammer to pursue. After all, he’s called a “defence liaison officer”, and his job was, as he put it, “to facilitate movement of information”.

Faulkner: Would you describe the two meetings you had on that day as formal meetings – where you present a brief to officers?

King: Yes.

2. Hammer’s reaction

Hammer says he doesn’t remember what he said in reply. He decided to do nothing because:

(1) He had “no real grasp” of the significance of the information, as “I had barely been following illegal immigration and people smuggling”.

(2) He was preoccupied with “a massive additional workload” upgrading Australia’s security after September 11, and

(3) The issue was being handled by PM&C’s people smuggling task force, and he assumed defence would tell them.

As to (1), such ignorance is unacceptable in a senior public servant in PM&C – the department’s core responsibility is to co-ordinate and monitor information across portfolios in a big picture way, to ensure consistency. Children overboard was central to election campaign news and the photos to `prove’ it made page one across the nation.

As to (2), since the matter was outside his area of direct responsibility he had three responsible choices. He could advise his superior Michael Potts and get back to his own work, just as his junior, Harinder Sidhu, had done when she arranged an urgent meeting with Hammer so King could brief him. He could telephone the task force and tell them what he’d heard and get back to his own work. He could ring Defence and check the information, then take one of the first two choices. None of these course of action should have taken more than 5 minutes.

I have spoken to many public servants on this matter and all are incredulous. The job of a senior public servant is not to box himself into his speciality as an excuse not to be proactive, but to pass on such information, formally or informally.

Let’s be very clear on this. During the travel rorts scandal in Howard’s first term, it was revealed that a PM&C officer junior in rank to Hamme, had failed to advise superiors, and therefore the PM”s office, of information on the rorts. Howard had claimed no knowledge, and the public servant resigned. Is the new rule that you’re out if you embarrass your masters and in if you don’t? If so, that’s not public service, that’s political sycophancy. In any event, a public servant should never judge whether politicians will welcome the truth or not – second guessing politicians is always fraught with danger.

Stefan King had been defence liaison officer in PM&C for three months before briefing Hammer and got a good sense of the PM&C culture. “In considering the information I had received (about the photos) it was very clear to me that my function was to provide this advice to my two senior officers in International Division (Sidhu and Hammer) such that they could advise their seniors as appropriate. My logic for this was that … it was obvious that great care was taken to ensure that any public announcements by the Prime Minister and other ministers was consistent. As this matter was only a day or so old, I thought it could be corrected quickly.”

Faulkner: Having formally briefed Ms Sidhu and Dr Hammer, did you have an expectation about what action those officers might take?

King: I guess I had two expectations: That he would say to me, `We actually need to define this issue more clearly and we need to formalise our understanding of it,’ or he might do that himself. It was not a surprise to me that he would have gone about that himself … my professional expectation was most probably that Dr Hammer would call someone at his level – perhaps Vice-Marshall Titheridge – and ask him whether there was any truth to the issue or at least establish in his own mind that there was.”

…

King: I assessed that (Hammer) acknowledged that the information was sensitive but he did not give any indication to me about what action he would take in response … It is a series of expression and body language, if you like, into acknowledging, “Yes, I hear that information” … It is body language, expression – maybe a pursed lip or a raised eyebrow. It was just a professional assessment that I made, and I am quite satisfied with it.

Faulkner: I want to be assured that you are confident that Dr Hammer understood the import of your briefing to him. Are you satisfied about that?

King: Yes, I am.

Faulkner: Could you say why?

King: My experience of Dr Hammer is that he is an extremely astute and intellectual man. In the trade you would say he does not miss a trick.

Faulkner: So you are saying he got it on board, basically.

King: Yes.

Moore-Wilton’s response? Hammer was right not to go outside “the chain of command” What? The whole mess started when Titheridge rang the PM’s task force after a rushed call to HMAS Adelaide’s commander while he was in the middle of the SIEV-4 drama – disregarding the defence chain of command and tradition of advising ministers only after written reports – on the orders of politicians wanting to tell the media something sexy. PM&C officers constantly rings other departments with questions and constantly relay information between themselves. It’s their JOB. Is Max really saying that if a senior officer gets highly relevant information disputing the PM’s public claims he should keep it to himself on a `chain-of-command’ basis? If he is, how on earth does he justify Hammer not reporting the matter up HIS chain of command to Michael Potts?

3. Meeting at the Kurrajong Hotel

The Hammer/Sidhu/King coffee at the Kurrajong is the incident on which Hammer’s career hangs.

(i) Why did he call the meeting?

Hammer says Potts suggested he call a meeting with Sidhu and King “to refresh … respective memories” of the October 11 meeting. Hammer specifically asked Potts “whether such a meeting was appropriate”. Potts replied that “it was normal for people to talk to one another to refresh their recollections on matters which could be of interest (to Senate Estimates committees)”.

“My impression was that he (Potts) wanted me to use the proposed meeting … to develop a good understanding of what had happened within his Division on the `children overboard’ matter,” Hammer said.

Potts was VERY interested in that, according to Hammer. Potts raised a possible meeting in mid-to-late February, followed it up later, and by early March had “been asking me to meet with Ms Sidhu and Commander King for some time”.

Potts flatly denies Hammer’s statement, saying he asked Hammer only to work out WHEN the October meeting occurred, in whatever way Hammer liked. A phone could would do that. Just a phone call.

“I can recall pressing each of the two officers separately on the matter on at least two occasions. Ms Sidhu indicated she had conscientiously tried to recall the rough timing of Commander King’s approach, but that the more she pressed her memory, the more hesitant she became about its reliability. Dr Hammer also indicated that he was unable to recall when the exchange had taken place. I suggested to him that the question of timing was important and pressed him to provide at least a rough approximation of the timing (eg early November, mid-November etc). I also said that, if necessary, he should consult both Ms Sidhu and Commander King in order to get a better sense of the timing of Commander King’s advice. He said he thought he would do so.”

Either Potts or Hammer is wrong. If Potts is right he is out of the frame on alleged witness tampering and Hammer carries the can. If he’s wrong, they’re both in the frame.

Moore-Wilton’s response? He ignores the dramatic inconsistencies and finds “there are no grounds for taking disciplinary action under the Public Service Act”. Privately, Moore-Wilton stresses that he has an out, citing this sentence: “I am conscious that sworn evidence remains to be given … I do not propose to consider any further action … until they have been dealt with by the Senate Select Committee.”

Yes, he’s got an out, but WHY and HOW, given the crucial inconsistencies between Potts and Hammer, does he clear both “on the material before me”?

(ii) What was said at the meeting

Hammer says he’d “virtually forgotten that the October meeting had taken place”, but that the meeting “very much helped to trigger my own recollections”.

“I accept that it is possible that I may naively have experimented with ways of drawing memories forth.” Thus King’s evidence, supported by Sidhu’s, stands. Hammer tried to ask King questions as if he were an inquiry member and get him to answer. King refused several attempts to do this. Hammer also suggested to King that “another or a better way to describe that might be…” Hammer asked: “What happened when you told Dr Hammer about the photographs?”

Hammer’s defence to the charge of witness tampering is that he was “naive”. A senior officer in the top echelon of the top department was naive, but not naive enough, according to his own statement, not to query Potts about whether a meeting would be “appropriate”.

4. What did Hammer report to Potts?

“A brief oral account of the recollections we had shared,” says Hammer. In his estimates evidence Potts stressed that he had not asked Hammer for an account of the meeting because it would be inappropriate given that Hammer would be giving evidence. Hammer told him only that the meeting had taken place. Oh dear.

5. Hammer’s refusal to give a statement to the inquiry

On March 28 the inquiry formally asked Hammer to make a written submission. “I declined to do so because I felt at that time that the meeting that the meeting in my office in early October 2001 had been a small episode which would be of little interest to the Committee.”

Incredible. Potts said he did not ask Hammer what happened at the Kurrajong Hotel meeting because “it was pretty clear that there would be a select committee and obviously he might be an individual witness before it”.

Faulkner: Beyond having an indication from Dr Hammer that this (meeting) had occurred, you did not try to satisfy yourself as to what that particular fix was?

Potts: No.

Faulkner: Wouldn’t having that understanding have helped you at any inquiries?

Potts: … I think that at that stage my mindset was that things would have to fall where they fell, that there was no point in my adding an extra layer to matters.

Senator Faulkner: What do you mean they would have to fall where they fell?

Potts: That people would be called to give evidence and that evidence would be tested by a select committee.

Max’s response to Hammer’s almost inconceivable lack of judgement? Nothing. Ignored.

I’ll be at the hearings tomorrow, and report to you tomorrow night.