After over three-and-a-half years’ investigation, a year in court and around $1.3 million spent by the government trying to nail the diplomat Trent Smith, the Department of Foreign Affairs and Trade bureaucrat finally has won his bid to be re-instated.
The Smith case is one of the nastiest witch-hunts of the Howard era, involving the harassment of public servants it suspects of leaking politically embarrassing information.
In this case Smith was subject to a lengthy departmental and police inquiry after he was suspected of leaking minutes of a conversation between foreign minister Alexander (Bunter) Downer and the New Zealand High Commissioner to Australia, Kate Lackey.
Unfortunately, the conversation captured Bunter in all his dim-witted braggadocio, telling the New Zealand diplomat in early 2003 that with or without UN approval Australian troops would be part of the invasion of Iraq.
Howard, of course, had been fudging the truth, publicly saying up to that time that the decision to commit Australian troops had not yet been made.
After sifting through 8,000 emails in an enormously heavy-handed investigation, Smith was cleared of leaking the minutes of the Bunter-Lackey (pic) conversation.
However, the government was unrelenting. Smith was sacked by the department in July 2006 after another investigation into a 2002 email he sent to Ashley Wells, a member of Kevin Rudd’s staff, who was seeking assistance on where he might find a list of consultants involved in a DFAT white paper.
Rudd, at that time, was the shadow foreign minister.
Smith told Wells that the information could be obtained by asking questions at the relevant Senate estimates committee. For that he got the chop.
In her reasons for Smith’s reinstatement, Australian Industrial Relations Commissioner Barbara Deegan appeared singularly unimpressed with DFAT’s approach.
“It is not good enough for the department to argue that, even if the applicant should not have had his employment suspended or terminated, he should not be reinstated because his contesting the suspension and termination has affected his relationship with his employer.”
“I am also certain that the applicant is sufficiently mature and intelligent to know that his attitude upon his return to the department will determine his future career prospects and, therefore, that the respondent’s concerns about his ‘crowing’ in such an event are unfounded.”
It was Dr Matthew Hyndes (pic), a fellow DFAT officer and National Party campaigner, who fingered Smith to the initial inquiry in February 2003.
Hyndes enjoyed an undistinguished career in DFAT dogged by charges of unethical behaviour. One allegation was that he paid a $1.2 million bribe to the Thai deputy finance minister while on leave from DFAT and employed in 1996 by the company Asset Risk Management.
Hyndes is currently Australia’s deputy high commissioner to Sri Lanka – his term having recently been extended by the government, despite his discreditable performance before the AIRC.
The second inquiry was conducted by Peter Kennedy, a former Peter Reith staffer and public service commissioner, who found Smith had attempted to enlist the support of Hyndes and that he told Hyndes he was prepared to help formulate an Opposition question about the levels of DFAT staffing in Jakarta.
Smith was found guilty of three breaches of the Australian Public Service Code of Conduct and suspended on full pay in February 2003. He was sacked in July 2006 and applied to be re-instated in December the same year.
There is a suggestion from Canberra that Kennedy’s report was largely formulated in the office of the Australian Government Solicitor.
According to the evidence reviewed by Commissioner Deegan, Smith committed no breach by responding to Wells’ email request because he directed Wells to information on the public record, none of which was privileged.
Several witnesses testified to this effect including Professor Stephen Bartos, Director of the National Institute for Governance, University of Canberra, and two high ranking DFAT officers Dr Milton Churche and Bruce James.
A former DFAT officer Rajan Venkataraman said:
“In my view, Mr Smith’s email reply is straightforward and it contains no sensitive, official or classified material. It is also my view that it contains nothing that demonstrates unprofessional conduct.”
A witness for DFAT, Phillip Allars, conceded that there was talk among staff at the time that Smith was responsible for the Downer/Lackey leak but that the email to Wells was “a minor matter”.
Smith’s main accuser, Hyndes, proved a doozy of a witness.
His evidence encompassed threatening letters to department officers, criminal “complaints” by Thai authorities, confessions of mental impairment, thwarted overseas posting ambitions, misconduct charges, disciplinary proceedings and threats of libel and common assault actions.
Hyndes maintained he was “convinced at some level” that Smith passed on official information to the Opposition; “material he was working on for the Senates Estimates [Committee]”.
Commissioner Deegan appeared concerned about the way in which Kennedy gathered information for his report.
“The DFAT officers were asked to comment on an email exchange which was incomplete and, in at least one case, had not been seen at all… Mr Kennedy did not then collect ‘evidence’ until nearly a year after the event. Additionally, a letter was sent to each of the DFAT officers to be interviewed setting out all the allegations against the applicant. This was unnecessary and may well have affected their evidence.”
She rejected entirely DFAT’s submission that Smith’s email to Wells was politically loaded.
“I do not accept that for a public servant to inform an Opposition staffer that one method of obtaining information is to ask a question in Senate Estimates Committee hearings breaches the requirement that public servants perform their duties in an ‘apolitical’ manner… Mr Kennedy reached his conclusion on this matter on the basis of evidence that was unsafe, untested and unsustainable on the facts.”
She was even more critical of Hyndes, finding him a witness of little credit, driven by an obsessive desire to revive his career in the department.
“His evidence about his activities in Thailand and their aftermath, and that concerning his various grievances against the department was not given frankly or, in my view, truthfully… The scatter-gun approach of his allegations, in my view, should have raised doubts in the minds of the investigators at a very early stage.”
The commissioner was scathing about the conclusions drawn by Kennedy, saying:
“I am unable to accept Mr Kennedy’s reasoning, or many of his conclusions, or any of his findings as to the breaches alleged to have been committed by the applicant.”
Deegan found none of the breaches occurred and DFAT’s sacking of Smith to be “harsh, unjust and unreasonable”.
She ordered that Smith be re-instated to his former position or one just like it.
The department will not appeal and has told Smith he need not rush back from Canada because he still has to get a security clearance.