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Monday, March 09, 2020

Pass the hot parcel when questions are raised about 40 years of records in the bin

The testimony in a senate committee hearing on the Sports Rorts affair that retiring Secretary of the Department of Health Glenys Beauchamp had destroyed all of the notes and notebooks from her public service career at the end of January led to further inquiry in Senate estimates last week. The hot potato of course was the notes if any that had been kept then destroyed about meetings concerning the tortuous decision making on community sports grants.

Senate Estimates on this bore passing resemblance to pass the parcel but there was no prize for anyone when the music stopped-for the moment at least.

In short:

Australian Public Service Commissioner Peter Woolcott said he hadn't carried out an investigation into the matter as requested by Senator Gallagher because he didn't have authority and the Attorney General's Department not the Commission was the agency responsible for the Archives Act. Senator Gallagher noted the APSC website had a lot of information about record keeping. Woolcott said this was all to do with the broader issue of integrity and the APS Code of Conduct but "I have no room to investigate Ms Beauchamp at this point." 

The Attorney General's Department couldn't say one way or the other whether destruction of the notes and notebooks could give rise to an offence under the Archives Act, noting that destruction of records in accordance with "a normal administrative practice" was exempt from the offence provision, and flagged that the Archives office was to be heard later in the day.

 When the Archives office, no doubt the best placed to throw light on it all, finally got the call at 10.45 pm, none of the senators who pursued the issue earlier in the day asked a question about it in the 15 minutes devoted to Archives. Archives will no doubt get a chance through questions on notice to express a view in light of  published guidance on the matter but now Ms Beauchamp has left the service and the records no longer exist it seems unlikely to go any further.

What message this conveys to public servants about record keeping generally is another matter, just as Mr Woolcott prepares for a service wide training initiative on integrity. Quite a challenge but a ready made case study perhaps?

 Senator Gallagher the opposition shadow public service minister has written to the Attorney General asking him to investigate the destroyed notes.
“It seems all very convenient that no official records are available from a key meeting of senior officials – urgently convened to discuss the management of political interference in the allocation of sports grants and that of the three officials present at that meeting only former CEO of Sport Australia, Ms Palmer, can recall it,” Gallagher said.“I have referred the matter of the destruction of records to the attorney general following the advice of the Public Service Commissioner. As a commonwealth public servant the making and keeping of records is not a discretionary act.”

The long version of what transpired in Estimates is in these extracts from the Hansard transcripts:

Australian Public Service Commission

CHAIR: I welcome Mr Peter Woolcott, Australian Public Service Commissioner. Mr Woolcott, do you wish to make an opening statement?
Mr Woolcott : No, thank you.
CHAIR: That's good given the time.
Senator GALLAGHER: I have probably half an hour's worth of questions, but, given the time, I will put most of them on notice. Mr Woolcott, thank you for your letter today in relation to my letter on Friday asking you to look into the matter of the former head of Health, Ms Beauchamp, and her evidence to the Senate Select Committee on Administration of Sports Grants where she indicated that she had destroyed her notebooks and notes of her time as a senior official in the Australian Public Service. To go straight to the issue that's concerning me, how were you able to reach the conclusion in your letter that the matters I raised with you on Friday afternoon don't warrant any investigation?
Mr Woolcott : Obviously I have a statutory duty to uphold the integrity of the APS, and I take these issues very seriously, but I have no powers to investigate under the Archives Act. That's a matter for the Attorney-General's portfolio. As I said, the administration of the Archives Act falls under the responsibility of the Attorney-General. So that's the first aspect.
The second aspect—you referred to your concern about widespread and ongoing systematic issues in the Australian Public Service over the destruction of records. I've not seen any evidence of that in the time I have been the APS Commissioner. As I also mentioned in my response to your letter, Senator, I will be working with the Attorney-General's Department as part of a broader integrity regime ensuring the proper treatment of documents under the Archives Act is part of that integrity training. But, on the basis of those things I have mentioned, I saw no room to investigate Ms Beauchamp at this point.
Senator GALLAGHER: Did you talk to Ms Beauchamp?
Mr Woolcott : I didn't talk to Ms Beauchamp. She did text me at another stage and said she was sorry if she has caused me any grief.
Senator GALLAGHER: Did you review the Hansard, the transcript of her evidence?
Mr Woolcott : I did.
Senator GALLAGHER: Did you take any advice about whether you had any ability to investigate the matter?
Mr Woolcott : We did approach the AGS for advice on that.
Senator GALLAGHER: Did they confirm that you didn't have any powers?
Mr Woolcott : It was clear that it was under the Archives Act and that it was a matter for the Attorney-General's portfolio.
Senator GALLAGHER: So why does the Public Service Commission provide the guidance about what constitutes a record? It basically provides all the information for public servants about the importance of keeping records. It defines a record and defines different classes of records. And I know that low-value notes are included as potentially Commonwealth records. Informal notes and diaries can be considered as Commonwealth records. Why do you have that role but then no other role?
Mr Woolcott : We have an overarching responsibility for integrity, and that is part of the broad suite of materials that we maintain to ensure compliance with the APS Values and the Code of Conduct. The APSC provides guidance material on a range of things, which includes the proper handling of documents. But we are not the authority and we are not the responsible agency under the Archives Act.
Senator GALLAGHER: Is there someone you can refer me to for this matter to be looked at? Who would be the appropriate authority?
Mr Woolcott : It would be a matter for the Attorney-General and his department.
Senator GALLAGHER: We've walked down that path before, I think. So you've had legal advice that basically said you're not able to investigate this matter?
Mr Woolcott : I'd need to double-check that. I might just take that on notice.
Senator GALLAGHER: Okay, if you could.
Mr Woolcott : My clear understanding is that we are not the authority responsible for the act, but I will need to take that on notice to be double sure.
Senator GALLAGHER: So where there are other questions about documents unrelated to this issue, the Public Service Commission doesn't have a role?
Mr Woolcott : That is my view, yes.
Senator GALLAGHER: I raised two issues with you. One was the Beauchamp matter and the other was whether there are widespread or ongoing issues in relation to the destruction of documents. You said in your answer to a question I just asked that you haven't seen any evidence of this. What's that statement based on?
Mr Woolcott : That statement is largely based on—we have an ethics hotline at the APSC, where people ring in and ask us questions about ethical issues, and my understanding is that it has not been raised with us.
Senator GALLAGHER: Not through the hotline or any other way—any matters around the destruction of documents?
Mr Woolcott : No. That is my understanding—certainly in the time that I've been the commissioner.
Senator GALLAGHER: Considering that the secretary of the Department of Health has destroyed years of personal notebooks as we heard on Friday, do you think it's worth the Public Service Commission proactively having a look at the Department of Health to see whether there is an issue there?
Mr Woolcott : I read her transcript. She indicated that she was aware and complied with obligations under the Archives Act. The National Archives of Australia—
Senator GALLAGHER: She also said that she didn't take advice on it. A straight reading of the guidance material that you distribute does include personal and informal notes and diaries, which are, on the surface, what Ms Beauchamp said she had destroyed.
Mr Woolcott : I'm not the authority on the act, as you know. But the National Archives of Australia does provide guidance about the compliance of archiving. There's the AA, under which the Archives sets standards and provides advice to each agency to apply in these circumstances. I do understand that Health has a policy outlining where it is appropriate to destroy records as a normal administrative practise, but, again, I'm not the authority on this.
Senator GALLAGHER: We might ask Health if the secretary was able to comply with the policy and destroy personal notes. You're referring me, basically, to the Attorney-General. That's my only real point for review. Is that correct?
Mr Woolcott : They have the responsibility for the act.
Senator GALLAGHER: I do have a lot of other questions—
CHAIR: I'm sure you do.
Senator GALLAGHER: and I apologise to you and your and officials for getting pushed this late in the program. It means we have to keep our questions short.
CHAIR: We have had a busy day. If there are no further questions this evening for the APSC, I thank you very much for your attendance and your evidence here this evening.

Attorney General's Department

Senator KIM CARR: First of all, I declare that I am a member of the advisory board of the Archives, so this is a matter of concern to me. Last Friday, the outgoing health department secretary, Glenys Beauchamp, who had retired from the department at the close of business that day, told the inquiry into the administration of the sports grants that she had destroyed all of what she said were her notebooks. In seeking to justify the action, she said:
I should not have notebooks and things as a private citizen after midnight tonight.
She said:
They're just my scratchings that I write down in a notebook of things that I might have to follow up on and just a reminder to me …
She couldn't remember the detail of the notes. Obviously, it's raised some pretty serious concerns given that these records relate directly to actions of public servants in their dealings with ministers, and the decision to destroy those records of the meetings was well after this issue was a matter of considerable public interest. I would ask if you could provide me with some advice on the Attorney-General's Department's view. Section 24 of the Commonwealth Archives Act states:
(1) … a person must not engage in conduct that results in:
(a) the destruction or other disposal of a Commonwealth record …
I note this is a criminal offence with strict liability. Mr Secretary, do you believe that the destruction of the departmental secretary's records of a meeting with the minister could constitute an offence against the Archives Act?
Mr Moraitis : It would depend on the circumstances. Section 24 of the act, if I recall correctly, provides exemptions—if the destruction is part of the normal administration, for example. If there are jottings-down and a formal record has been taken elsewhere, the second is the actual record. If someone's jottings or notebooks have been destroyed, I don't know what the situation is, but that's not necessarily a breach of the act on the face of it. No-one expects everybody to keep every single piece of paper. I think anyone would diligently ensure that anything that requires recording will be recorded, whether in a minute commenting on something or in other things. So it would depend. Let me just say any suggestions of a breach of that act would depend on each agency coming to that view. It's not as if I or the head of the Archives sits around making sure that every single department doesn't breach the act. We would depend on each agency to consider that.
Senator KIM CARR: I'm wondering whether or not a departmental secretary's records of a meeting with their minister would usually constitute a Commonwealth record for the purposes of the Archives Act.
Mr Moraitis : I don't know. I don't know whether that was the only record or whether it was just a jotting-down of something that then was recorded elsewhere in a so-called formal Commonwealth record under the act. I'm just speculating here and giving you a scenario. If it's recorded elsewhere, so be it. I don't see why that's problematic, although it depends on the circumstances and I don't know what the circumstances were there.
Senator KIM CARR: Do you believe that a policy of destroying records of meetings at the most senior levels of government is consistent with the purposes of the National Archives?
Mr Moraitis : I don't think there is a policy of destruction from what I can tell. As far as I know, that's not a practice that I'm aware of.
Ms Chidgey : All I could add is that the Archives Act and information that the Archives itself provides indicates that it's permissible to destroy a record, as the secretary mentioned, in accordance with normal administrative practice. The information the Archives provides envisages that that could occur if that record is not needed to be retained to document an agency's business, which could be for a range of circumstances—if it's transitory, if there's duplicate material or if it's unofficial information. So the circumstance where someone has translated any key pieces of information that need to be retained to another more formal record could mean that destruction is then permissible.
Mr Moraitis : I'll add to my answer. The Public Service Commissioner has written back to Senator Gallagher, I understand on 2 March, and he's provided me with a copy of his correspondence. He said:
The Australian Public Service Commission does not hold any evidence that there are widespread or ongoing issues in the service relating to the destruction of documents.
That accords with my understanding, albeit in a smaller context.
Senator KIM CARR: On the normal practice, though, of a conversation between the secretary and the minister, you're saying, in your judgement, that that would not normally become a record of the Commonwealth.
Mr Moraitis : I wasn't saying that. I was saying that there could be a record of conversation with the minister that is recorded. For example, I could send an email to my staff saying that I had a conversation with the Attorney, and these are the two or three things that he wants actioned, or these are two or three things that we discussed.
Ms Chidgey : There are two separate issues at play there. One is an issue about whether it qualifies as a record under the act, but that itself doesn't determine whether it needs to be retained. There are further considerations, including the possibility of reasons why destruction might be in accordance with normal administrative practice, that mean that something that is a record could be destroyed in certain circumstances, as I've outlined.
CHAIR: I'm conscious that—
Mr Moraitis : Mr Fricker, who is the head of the Archives, will be appearing this afternoon or evening, and he may have his perspectives as well. So I don't wish to pre-empt his views.
CHAIR: Thank you very much. When we do resume, we will be going onto the next section in the program, which is program 1.3 with the AGS.

National Archives of Australia
CHAIR: Our most patient agency award goes to the National Archives. Those from the Archives take the long view!
Mr Fricker : Absolutely. And we never forget!
CHAIR: A 14-hour day is nothing for you! If you have one, feel free to give the briefest of opening statements.
Mr Fricker : I'm pleased to advise you that I do not have an opening statement this evening.
CHAIR: You know how to please me. Thank you very much, Mr Fricker. Senator Carr, you have the call.
Senator KIM CARR: Madam Chair, it's a bit rude to these officers to engage them with some pretty serious matters at this hour, given they've only got 15 minutes, so I give notice that at our next session, the next round, I'd like to see the National Archives brought on earlier. This seems to happen quite regularly, where they're shunted down to the end of the program, so I'd just indicate to the officers we should make more of an effort. I have got a lot of matters I want to raise.
CHAIR: When we're getting the program together next time, let's make sure that we apply some scrutiny to that order.
Senator KIM CARR: Yes. Thank you. I take full responsibility for not paying more attention to what is clearly a problem.
CHAIR: I'm happy to adjust it to give it the attention it deserves.
Senator KIM CARR: Thank you. So they can at least come prepared for an earlier session. I'm interested in the Tune review. Mr Secretary, why was the Tune review established?
Mr Moraitis : I think it was during the course of 2018 that both the director, Mr Fricker, and the advisory council raised this with the Attorney and gave advice, as the responsible people. The issue of funding for the Archives was one issue that came up, and also the capability of the Archives to deliver on its responsibilities under the act. On that basis, in early 2019 the Attorney-General wrote to the chair of the council to acknowledge that these issues of the functions, powers and resourcing of the NAA would benefit from examination and that it was obvious that a functional and efficiency review would be the way to go.
Senator KIM CARR: Thank you. So there were two substantive issues: finance and the ability of the Archives to actually meet its statutory obligations. When was the final report received by the department?
Mr Moraitis : The report was finalised on 30 January this year. Is that correct, Ms Chidgey?
Ms Chidgey : We received it in early February.
Mr Moraitis : So a few weeks ago.
Ms Chidgey : I think maybe 5 February was when we received it.
Senator KIM CARR: When will it be published?
Ms Chidgey : That's a matter for the Attorney. We've sent the report to the Attorney.
Senator KIM CARR: Minister, when will the Tune review be published?
Senator Payne: I'm not aware but I will seek advice.
Senator KIM CARR: It was always intended that it would be published. On my reading of the submissions, all the submitters had expectations that it would be published. I don't know of any statement to the contrary. What's the reason for the delay, Mr Secretary?
Mr Moraitis : I'll outline the chronology. We received it on the 5th, so that was some 15 days ago.
Senator KIM CARR: It was actually late, wasn't it? It was intended to be a much shorter review than that, wasn't it?
Ms Chidgey : The original time frame—
Mr Moraitis : Well, how long is a functional and efficiency review? It depends what you find.
Senator KIM CARR: But, as to the original time frame, the terms of reference were set up in such a way that it was actually due much earlier.
Mr Moraitis : Yes. We received it in the last three weeks, we're still going through it, the Attorney and his office will be looking at it—
Ms Chidgey : And we have yet to provide advice to the Attorney to enable him to do his review as well.
Senator KIM CARR: Thank you. That's the point, isn't it: the department's yet to provide advice. What's holding up your response?
Ms Chidgey : Conversations with other departments that the report is relevant to in government in order to inform fully considered advice to the Attorney.
Senator KIM CARR: I see. Presumably you worked with Mr Tune throughout the process of the review. Would that be a fair description?
Ms Chidgey : We were participating in the steering committee for the review.
Senator KIM CARR: Yes, the steering committee. Mr Tune's a highly respected, highly authoritative public servant. He's retired now but obviously he was commissioned to undertake this review because of his standing within the service; would that be true?
Mr Moraitis : Yes.
Senator KIM CARR: So I'm surprised, given that you were a member of the steering committee, that you're not able to respond more quickly.
Mr Moraitis : Really?
Senator KIM CARR: I am surprised, given that the—
Mr Moraitis : Are you?
Senator KIM CARR: Yes, I am surprised.
Mr Moraitis : We've had 3½ weeks to turn around a massive functional and efficiency review. While we were on the steering committee, we still didn't see the final review until 5 February, and you expect us to turn around this—
Senator KIM CARR: You actually had this review. When did you actually receive this review, as distinct from the final review? When did you receive the draft review?
Ms Chidgey : We saw drafts before that, but we obviously need the final review to be able to consider that.
Senator KIM CARR: Yes, I understand that, but we've got a budget process underway right now.
Mr Moraitis : I don't accept that, Senator.
Senator KIM CARR: You don't accept that we've got a budget process underway right now?
Mr Moraitis : I don't accept that we're taking an inappropriate length of time to respond to this.
Senator KIM CARR: Tell me: have you commissioned the Boston Consulting Group to undertake a further study?
Mr Moraitis : Of what?
Senator KIM CARR: The matters contained by the Tune review.
Mr Moraitis : Not that I'm aware of.
Senator KIM CARR: Is that the case? Has the Boston Consulting Group been commissioned to undertake a further study?
Ms Chidgey : Not that I'm aware. It's possible the Archives might have been looking at getting them, because there's further work to be done on top of that.
Senator KIM CARR: Is that true? Has the Boston Consulting Group been commissioned to do further work for you?
Mr Fricker : No, we have not commissioned the Boston Consulting Group to do any consultancy for the National Archives. If I could speculate, it has been reported that Boston Consulting Group has been engaged to consider scoping aspects of the Public Service reform.
Senator KIM CARR: So, Mr Secretary, is it true? Has the Boston Consulting Group been commissioned?
Mr Moraitis : We have no idea what you're talking about, Senator.
Senator Payne: I think there is a BCG commission for another government entity. I don't know whether that is—
Senator KIM CARR: Which is that entity?
Mr Moraitis : We're not aware of any consulting group, whether it's Boston or anyone else, who is being superimposed on Mr Tune's functional and efficiency review of the NAA.
CHAIR: Senator Carr, you've got a direct answer.
Senator KIM CARR: No, I'm asking the question.
Senator Payne: You and I would agree entirely about the merit and standing of David Tune. That is not in question in any way whatsoever. Therefore, we would also agree, I presume, that it is a comprehensive review and one which requires appropriate consideration by government and appropriate advice from agencies. So, if it has been in the possession of the agency for a matter of weeks only, I think Mr Secretary Moraitis is absolutely entitled to say they'll consider it properly before they advise government.
Senator KIM CARR: Of course I would expect the secretary to say they'll consider it properly. But, like you, I understand that the Boston Consulting Group has been commissioned to undertake further work.
Senator Payne: But not in relation to this matter. I said 'another entity of government'.
Senator KIM CARR: What other entity of government would that be?
Senator Payne: I just want to make sure that I have it correct before I put something on the record. But it is not the Archives and it's not the Attorney-General's Department.
Senator KIM CARR: What is it, then?
Senator Payne: I'll check. It's the Fair Work Commission. That is a public matter, as I understand it.
Senator KIM CARR: It has nothing whatsoever to do with the public records of this country?
Mr Moraitis : There is nothing involving any consultancy group to do with the functional and efficiency review or a review of the review. Having a review, in itself, is sufficient. We're more than happy with the functional and efficiency review of Mr Tune.
Senator Payne: Trust me. Having gone through multiple functional and efficiency review, I can say you're right.
Mr Moraitis : We can assure you that, as you said, anything Mr Tune has looked at we would look at very carefully, and his consideration will be taken into account.
Senator Payne: You've woken everyone up, Senator, so thank you for that.
Ms Chidgey : There is just a slight correction: the date on which we received it was 31 January.
Senator KIM CARR: It's neither here nor there. My concern is that there has been a suggestion that there's been a further consultancy sought on top of Mr Tune's review. Are the departmental secretaries considering this matter?
Mr Moraitis : Which departmental secretaries?
Senator KIM CARR: The Commonwealth departmental secretaries. Are they considering this matter?
Ms Chidgey : No. We're considering it and talking to other key relevant departments, and then we'll provide advice to the Attorney.
Mr Moraitis : Ms Chidgey said that, in the process of giving advice to the Attorney about the Tune review, she and her team are consulting with all the stakeholders who have an interest in the Archives, which by definition is a very broad spectrum of interested parties.
Senator KIM CARR: Absolutely, and they must have an interest by law.
Mr Moraitis : Correct. That's what we would like to consult with them about.
Senator KIM CARR: That's why I'm concerned, given that the reason for the review to be established was, as you've indicated, a fundamental problem about the capacity to undertake statutory obligations because of lack of money. That was the reason why the review was established.
Mr Moraitis : That's why I said there was a functional and efficiency review established. That was the first thing I said, five seconds ago.
Senator KIM CARR: That's right. When will there be a response from the department?
Ms Chidgey : We're providing advice to the Attorney and we'll do that in coming weeks when we've consulted other key departments. I might just correct the record on the purpose of the review, which was to look more broadly at effective and efficient undertaking of archives functions.
Mr Moraitis : That's what functional efficiency reviews have done.
Senator KIM CARR: Yes. How does it relate to the Audit Office's findings in regard to the Archives?
Mr Fricker : I believe you're referring to the National Audit Office's audit into oversight and administration of the Digital Continuity 2020 policy. The headline finding was that we were largely ineffective in the monitoring and oversight of that program. We have responded to the recommendations to introduce greater levels of oversight and governance into those processes. Of course, there is some intersection there—that Mr Tune did look into our resourcing and our capacity to apply the levels of oversight and governance necessary to discharge the responsibilities that we have. So there's certainly a relationship between our capacity to successfully deliver major programs and, if you like, the resourcing and the workforce that we have.
Senator KIM CARR: When was the ANAO report tabled?
Mr McGuire : At the end of October, I believe.
Senator KIM CARR: Mr Secretary, does the department take that matter into consideration when it's examining the budgetary situation at the Archives?
Mr Moraitis : We are aware of the audit because we were one of the agencies that was part of that process. We have been engaged with the ANAO in that space.
Senator KIM CARR: How would you describe that ANAO report received on 31 October?
Mr Moraitis : I can't recall what our response was to that report. I'll have to take that on notice. I don't think there was anything problematic.
CHAIR: A response to that is a matter for the Archives.
Senator KIM CARR: Yes, it was a matter. If I could ask the director-general: it would be fair to say it was a scathing report, wouldn't it?
Mr Fricker : That's correct, Senator. There's no point in describing it any other way. I would, for the record, still acknowledge that the staff at the Archives have been able to achieve results and effect across the Public Service in the overall administration of government records and the transition to digital information management record-keeping. However, I cannot escape the conclusions of the Auditor-General in terms of our oversight administration and aspects of the governance through which we deliver that program—that they were lacking.
Senator KIM CARR: What functions do you believe will need to cease due to staff shortages?
Mr Fricker : We constantly look across the functions that we perform in terms of discretionary functions we perform and non-discretionary functions. Non-discretionary areas include, of course, preservation of records which we've determined have archival value. We will do our utmost to ensure that we protect those records against deterioration and loss, which means the more discretionary services are around public services—that is, providing access to the records, particularly through digital channels, and our capability to use digital preservation technology to rescue, in particular, records created on magnetic tape, which are deteriorating and will be lost beyond the year 2025 unless we're able to provide some sort of remedial action.
CHAIR: Time is getting very short. I'll put a few things down on notice. Madam Chair, I repeat: I do want a bit of time to actually go through this material. Given the secretary's response, I'm looking forward to the opportunity to go through this in some detail, particularly the department's role because I'm very concerned about how smaller agencies are treated in the budget processes. There's the Archives Act itself. My understanding is that there have been measures around to actually update the Archives Act for some years, going back to former Attorney-General Brandis. Is that the case?
Mr Moraitis : Yes. I recall the advisory council raised that with Senator Brandis several times in the past.
Senator KIM CARR: Is there legislation in the department ready to be brought forward?
Mr Moraitis : I'd like to take that on notice.
Ms Chidgey : We'll have to take it on notice.
Senator KIM CARR: While you're looking at it, what is your expectation in terms of that matter being put to government to actually get on the business list?
Mr Moraitis : I'll have to take on notice whether it actually has been—
Senator KIM CARR: Given the hour, Madam Chair, I'll come back to this at another date.
CHAIR: Thank you very much. We really appreciate the time you made and the time you waited to give your evidence this evening. We will adjourn this hearing of the Legal and Constitutional Affairs additional estimates process. I thank Broadcasting for their diligence and patience. I thank officers of the secretariat for their help. From a personal perspective, I thank senators who have behaved so courteously in the course of the day.

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