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Legal and Constitutional Affairs Legislation Committee
22/10/2020
Estimates
ATTORNEY-GENERAL'S PORTFOLIO
Royal Commission into Aged Care Quality and Safety

Royal Commission into Aged Care Quality and Safety

[09:08]

CHAIR: I welcome Senator the Hon. Jonathon Duniam, representing the Attorney-General. Minister, would you like to make an opening statement?

Senator Duniam: No, thank you, Chair.

CHAIR: I call officers representing the Legal Services and Families Group of the Attorney-General's Department and the Royal Commission into Aged Care Quality and Safety. Thank you very much for making yourselves available this morning. I appreciate it very much, particularly in circumstances where there's been some adjustment to the timetable. I might start with a general question. Are you familiar, Dr Popple, with the decision in Comcare and Banerji?

Dr Popple : I am familiar with that case, yes.

CHAIR: That's good. So you don't need me to tell you what it's about, but, for those who are following along at home, it is a case where the High Court considered whether or not the people who were employed by the Australian Public Service and who were bound by the Australian Public Service Code of Conduct had obligations that extended beyond their conduct in the workplace and into the statements that they make in the wider world. Is that a fair precis, Mr Moraitis?

Mr Moraitis : Yes, it is—in particular, focusing on the use of social media in the post Twitter-Facebook world, as we're all familiar with.

CHAIR: In short, the court held that APS, or Australian Public Service, employees must constantly uphold the APS values and the integrity and good reputation of the APS—that's one of the values reflected in the code of conduct—and that that was important because fundamental to the principle of responsible government is the idea that the Public Service are loyal, neutral, accountable to government and accountable to the Australian public. Is that fair?

Mr Moraitis : Pretty fair.

CHAIR: Dr Popple, do you disagree with me there?

Dr Popple : Not at all, Senator.

CHAIR: Thanks. The judges all formulated their answers differently, but different factors were taken into account about how serious and how restrictive those obligations were. Things like the role that the person was in were relevant. The seniority of that person and the ways in which the comments made might affect the person's credibility in their role were relevant factors, as were the degree to which the public servant expected that information to be made public. Is that all pretty fair and consistent with your understanding?

Mr Moraitis : That's my recollection of the judgement, yes.

CHAIR: If at any time you're not sure and you want a copy, that's fine. I can provide that to you. Again, for those listening at home, that's a requirement that's been imposed because the Public Service Act sets out the APS values, one of which is impartiality. Is that accurate?

Mr Moraitis : Yes.

CHAIR: And the APS Code of Conduct, which comes from section 13 of the Public Service Act, similarly requires that a person behave at all times in a way that upholds the APS values and that upholds the integrity and good reputation of the agency for which they work and the Public Service as a whole. That's from section 13(11). Is that an accurate reflection of the requirements that are in place, Dr Popple?

Dr Popple : Yes, it is.

CHAIR: Who employs the staff of royal commissions?

Mr Moraitis : Technically, they're employed by the Attorney-General's Department. The official secretary is engaged by the department and they have that relationship with the commissioners, but, for the purpose of the Public Service Act and other matters, they're technically employees of the Attorney-General's Department.

CHAIR: So they are APS employees?

Mr Anderson : Not in all circumstances.

Mr Moraitis : It depends.

Mr Anderson : There might be some independent contractors and labour hire personnel and things like that, but, for the most part, they are either ongoing or non-ongoing employees of the Attorney-General's Department.

Mr Moraitis : When you establish a royal commission, you invariably would engage non-ongoing staff or specialists. You have people who do various types of logistics work. You have companies that provide staff at very short notice. We tend to provide policy officers into the royal commission at various levels, maybe a public affairs officer and a couple of senior policy people. Dr Popple, for example, is engaged, if I recall correctly, as a non-ongoing officer for the period of the duration. He is not an AGD officer; however, he was engaged for this purpose. So there is a mix. So it varies.

CHAIR: Is it fair to say that most of them are APS employees?

Mr Moraitis : I'd have to check. I'd say it is probably 50-50 or 60-40 or something like that. That's my recollection, but I couldn't give you the figures. I'd have it take that on notice.

CHAIR: You can.

Mr Moraitis : Dr Popple might know the ratio of APS to non-APS on any given day in the royal commission.

CHAIR: Dr Popple, are you able to answer that for me?

Dr Popple : I don't have the precise figures, but I'm very happy to provide them on notice. I think they are of the order of 60 per cent or 70 per cent APS, as Secretary Moraitis has just said.

CHAIR: But, in any event, in the definitions that are used in the Royal Commissions Act 1902, the definition of the term 'member of the staff of a Royal Commission' includes APS employees and people who are engaged in those contractor-type arrangements.

Mr Moraitis : People who are engaged to be contractors, specialists or accountants or things like that—people who do transcription services and things like that.

CHAIR: The consequence of everything we've just discussed is that the staff of royal commissions need to be nonpartisan in the conduct of their work and in their public commentary. That's right, isn't it?

Mr Moraitis : Yes—and on those criteria that you described from the High Court judgment about seniority of the role, whether or not they are anonymous, and all these sorts of variables, which I cannot recall in detail, because it is a while ago since the High Court judgment came out and I read it—with great interest. But time has moved on.

CHAIR: That's okay. If there are breaches of the code of conduct, there are consequences, aren't there?

Mr Moraitis : Yes. If there is an alleged breach of the code of conduct, usually what happens is that there would be a code of conduct investigation undertaken by somebody appointed by the agency. If there was a breach of the code of conduct, there would be usually a sanctioning process, which is a separate process. Invariably, what happens in my experience is that there would be a sanctioning officer, who is engaged to look at the report of the actual facts and whether there was or wasn't a breach of the code of conduct, and the nature thereof. Then a sanctioning officer would consider that and consider the range of options for sanction, as it were. And there is a wide range of sanctions, ranging from caution to non-engagement in the Public Service.

CHAIR: That's set out in section 15(1) of the Public Service Act.

Mr Moraitis : Sounds right.

CHAIR: Under the act, those consequences are either:

(a) termination of employment;

(b) reduction in classification;

(c) re-assignment of duties;

(d) reduction in salary;

(e) deductions from salary, by way of fine;

(f) a reprimand.

I think that's exactly accurate to what you just said.

Mr Moraitis : That's the spectrum. The sanctioning officer has discretion, based on the totality of the facts and breach, as to what should be done.

CHAIR: Before I come to the guts of it, I just want to make it very clear in people's minds why this matters. I'm looking at the manual on royal commissions in this country: Royal Commissions and Public Inquiries, a book by Scott Prasser. I will quote from the book: 'The best public inquiries gather evidence, conduct research, garner expert advice, establish facts, provide analysis, test ideas, assess options and propose a solution, appropriate action or a way forward.' But governments risk losing trust and legitimacy if these things are apparently political. I'll quote from page 138: 'Lack of respect for the membership of an independent review, and poor processes, will quickly undermine its legitimacy. The quality of the people involved and the operational arrangements of an inquiry are interconnected and are largely within the control of the inquiry chair.' All of that serves, I think, to say how important it is that people who are involved in roles with a royal commission act with impartiality and a careful independence. Do you agree that that's important Dr Popple?

Dr Popple : I do, yes.

CHAIR: And, Mr Secretary?

Mr Moraitis : Absolutely.

CHAIR: I've had circulated among the committee, and I understand a copy has been provided to Dr Popple and to the officers at the table, a bundle of printouts from the Twitter account of a person by the name of Kate Hannon. This person is employed, as I understand it, in the APS, and her role is as the director of communications. Is that the role Ms Hannon holds, Dr Popple?

Dr Popple : It is, yes.

CHAIR: It is this bundle here for those at the table.

Dr Popple : I'm sorry to interrupt; I don't have a copy of those.

CHAIR: It has been circulated to your assistant, I believe, via email.

Dr Popple : That could be right. I don't have it here in front of me.

CHAIR: Do you want me to press on or do you want me to give you time to find that?

Dr Popple : I'm in your hands.

CHAIR: How about we get started and, if at any time you'd like to stop to get copies, by all means we'll accommodate that for you.

Dr Popple : Certainly.

CHAIR: On the first page of the bundle, there is a retweet by Kate Hannon of somebody else's tweet in which she is questioning the bone fides, the credibility, and the integrity—I'll say disparagingly—of the Prime Minister's sincerity. In the second tweet on that page, she has retweeted a picture of a bus in which the Prime Minister is described as a Liberal muppet. Over to the next page, there is another tweet that I'd say is not complimentary but is not of itself an indicator of a lack of partiality; though I wouldn't say anybody would be happy with a photo of themselves looking like that. On the third page, there's a very political cartoon referring to, what I would suggest is, the bushfires and policy responses to that. On the next page, there is yet another tweet where there is a disparaging mural of the Prime Minister photographed and sent around by this supposedly independent and impartial member of the royal commission. I note that it is apparently a retweet of something from the Twitter account of someone called 'I am AntiFa', an extreme political group. The next page, we have a retweet of David Wenham in which Ms Hannon appears to be keen to share around the suggestion that the Prime Minister doesn't behave like a Prime Minister. On the next page, there's a further retweet, this time telling the Prime Minister to 'wrack off to Hawaii'. On the next page is a retweet in which the Deputy Prime Minister is treated very disparagingly, calling him an 'idiot'. On the next page, there are some rather unkind things said about the vice-president of the Liberal Party.

On the next page we have a cartoon that is titled 'Mr Prime Minister Head'—a reference to Mr Potato Head, the much-loved children's toy. On the next page there is a tweet directly from Ms Hannon calling my colleague Senator Canavan—I believe she is attempting to call him an idiot, but the spelling is 'e-e-j-i-t', of the first order, in her view; I obviously disagree with that one. On the next page there is a retweet from Ms Hannon in which she seems keen to circulate material that has been drawn out during estimates that she seems to be hoping will end the career of Senator Cash; she calls her 'a liar'. On the next page there is a retweet dealing with Mr Dutton. I could keep going for a long time here. It is hard to know which bit is the piece de resistance in this theatre of clear anti-Liberal sentiment. Although it is probably worth noting, since we're in estimates, that there is a lovely collage of Senator Wong's faces during estimates, which is a retweet which is described as 'Listening to [expletive]'—a clear inference that things that are said by those in government are dishonest.

Then we move on to the ones showing their enthusiasm for policies on the Labor and Greens side of things. These are retweets of basically the suite of political causes for which the Left have been advocating in the near to medium term—everything from enthusiasm for Premier Andrews to enthusiasm for the Leader of the Opposition's attendance at functions. I could keep going, but right now I will table that bundle of tweets. I'm also going to table the extracts from the Public Service Act and the Royal Commissions Act.

The point here, though, is to say we have a clear pattern demonstrated by Ms Hannon, who is in a senior role as director of communications with the supposedly impartial and independent aged-care royal commission, in circumstances where royal commissions have an extra-special responsibility to maintain impartiality and integrity because of the high esteem and importance with which they are held in our community. Yet the public communications of the royal commission are being run by somebody who clearly has an active, public and dogged anti-government agenda. When I look at those tweets, it strikes me that they do not meet the APS Code of Conduct. Do you have a reflection on that, Secretary?

Mr Moraitis : Thank you for bringing this material to our attention. Were we to consider this on the basis of stuff that I have seen this morning for the first time—I'm not aware of this person. I don't want to comment in any way on anything that may prejudice any future code of conduct case. You can appreciate where I'm coming from. I don't want to give the appearance of bias on my part which may affect a decision-maker in a potential code of conduct case.

CHAIR: Because the follow-up investigations would occur within the Attorney-General's Department?

Mr Moraitis : I would appoint somebody—most likely within the department; a senior person—to undertake a code of conduct. There is a policy on social media, which, actually, was updated following the Banerji case, which we will refer to, and, obviously, the code of conduct. I'll have to take advice on this, but, on the face of what you've described in estimates, it's something I would like to look at. But I don't want to say anything here that may affect any future decision-maker's approach to both the facts of the case—making a decision on breach of the code—and, were there to be a breach, a decision on sanction.

CHAIR: Dr Popple, were you aware of the political activity on Twitter of Ms Hannon?

Dr Popple : No, I was not.

CHAIR: Having been told of that political activity, are you of the view that clearly partial, active social media political activity is consistent with the responsibilities of the role of a director of communications in a supposedly independent royal commission?

Dr Popple : For the same reasons that Mr Moraitis stated, I don't think I can answer that question. Ms Hannon is known to me. She is, as you've said, our director of communications here in the royal commission. She is, in my view, doing that job very well in terms of managing our public communications. But the information you've just given me and given us is new to me, and I thank you for bringing it to our attention. We will, as Mr Moraitis says, investigate that and see whether or not it does amount to a breach of the code of conduct.

CHAIR: It's quite material, because the communications that come out of a royal commission are necessarily needing to be playing, let's say, a straight bat. They need to be informative, they need to be open and they need to be apolitical. That's true, isn't it?

Dr Popple : It is. And, what's more, I would say that they have been and they are.

CHAIR: Let's interrogate that for a moment. The communications that are coming out of the aged care royal commission are, quite frankly, like no other I have seen before. The communications that are coming out of the royal commission are not the kind of simple sharing of opportunities to make submissions, the public circulation of interim reports or submissions. They aren't simply making sure that Australians are able to participate in, follow along with and understand the activities of the aged care royal commission, are they?

Dr Popple : I think they are, but I'm very happy to discuss a specific example, if you have one.

CHAIR: Do you accept the proposition, though, that that is the role of a royal commission in its communications responsibility—to play a straight bat, to keep the public informed and give them opportunities to engage, but not to be political in a way that could jeopardise its independence? Would you accept that proposition?

Dr Popple : Yes, perhaps with the addition that sometimes they also use it as an opportunity for commissioners to make statements about matters within their terms of reference.

CHAIR: I accept that, Dr Popple—quite right. The commissioner may want to make statements about things within the terms of reference. So you can imagine my concern when, carefully timed to drop on a sitting day, there are titles on media releases coming out of the royal commission like 'Australia far behind in monitoring aged care quality' or 'Higher funding needed for residential aged care'. Putting aside for a moment that those potentially pre-empt the conclusions that might come out at some point from the royal commission, they also state a political policy position, don't they?

Dr Popple : I think I recall both of those. I don't have them in front of me. I believe that both of those were announcing the release of research that the royal commission had commissioned; that those headlines you just read were a summary of the substance of that research; and that the media release goes on to point out that this is just research that's been commissioned and that it does not necessarily reflect the views of the royal commissioners.

CHAIR: Yet your director of communications is not saying, 'This is research that might inform what we do,' in headlines designed to drop, timed for maximum political impact. The headline doesn't say, 'New research is being taken into account by the royal commission.' Rather, it states a political policy conclusion by demanding higher funding or being actively critical of Australia's stand in monitoring aged-care quality. These are political policy positions. How could those headlines be read any other way, particularly when taken with the timetable of dropping them to coincide with the parliamentary calendar?

Dr Popple : Senator, as I said before, that's my understanding of the meaning of those headlines. Can I assure you that the timing of all of our media releases has nothing to do with the parliamentary calendar. I have been involved in the timing of those media releases, as, indeed, have the commissioners themselves. They're always aware of these before they go out. They're always timed around our hearings and the release of our research material.

CHAIR: Tell me this: what precisely is Ms Hannon's role? What does she do, day to day, at the commission?

Dr Popple : Ms Hannon is our media person. She deals with our publications, our dealings with the outside world and also with media inquiries of the commission.

CHAIR: So she is responsible for drafting media releases?

Dr Popple : That's one of her responsibilities. Media releases like that, of course, have been drafted by a number of people, because they would require some expertise on the subject covered.

CHAIR: But as director—

Dr Popple : She would ultimately finalise those, and they would be cleared—that's right. She's responsible for finalisation of those.

CHAIR: So she's finalising those media releases. No doubt she is gathering or directing the tone and content of those media releases, since she is in the role of director. Is that right?

Dr Popple : Certainly, Senator. But, as I say, I am also responsible for those. She reports through people to me, so I'm responsible for them, and they are cleared by the commissioners before they are released.

CHAIR: What else is within her remit?

Dr Popple : I would have to take that on notice, actually. I'm not sure of her precise job description.

CHAIR: I'll be interested to know the full—

Dr Popple : Media and communications, as I said.

CHAIR: Liaising with members of the press on behalf of the commission?

Dr Popple : Yes, mostly answering press queries.

CHAIR: Does Ms Hannon actively brief the press independent of their inquiries?

Dr Popple : I'm not sure quite what you mean by that, Senator. Certainly she talks to the press about upcoming events. She makes sure that they have answers to their questions to the extent that we can answer them.

CHAIR: Does she do active outreach because she has things that she would like the press to cover on behalf of the royal commission in a way that arises separately and independently of any questions with which the press might have approached her?

Dr Popple : She certainly does active outreach, but that's active outreach to the public; not just to media.

CHAIR: I'm terribly troubled by the apparently political nature of the way in which she is conducting herself in the job—by putting an antigovernment and pro-Labor slant on her work. That concern was redoubled when I saw her plain political leanings being expressed so grotesquely on social media. Then I learnt that she has a distinguished history as a Labor political staffer, both in the federal government and in state government. It generates a very real concern that Ms Hannon is not an independent officer operating in an independent royal commission for the benefit of the public but rather a political combatant seeking to undermine the independence of one of our country's most esteemed processes—that is, a royal commission.

Dr Popple, you are responsible for ensuring officers within your remit meet the important standards of the APS Code of Conduct and, indeed, the standards the public expect of royal commissions. What will you do to protect the royal commission from the decline in public confidence that is the inevitable consequence of this kind of rabid political activity?

Dr Popple : As I said before—and thank you again for providing this material—I'm very happy to investigate that material, particularly in relation to the question of any possible breach of the code of conduct.

Mr Moraitis : May I interrupt?

CHAIR: Please.

Mr Moraitis : Given the material that has been presented in these estimates this morning and given the variety of issues you have canvassed quite comprehensively—you referred to the code of conduct and to the social media policy in particular—my intention is to conduct a code of conduct review from the department itself rather than leave it to Dr Popple or his staff to conduct a code of conduct review. I'll leave it at that for the purposes of not prejudicing any process that may be embarked on in light of the material available to me.

CHAIR: I'll wrap it up with one final observation. Just 21 hours ago Ms Hannon retweeted on her Twitter account a post from NARI, which you will be familiar with as having an interest in the aged-care sphere. So it can't even be said that the Twitter account is a private body with no connection to her work. There's a blending of her responsibilities, her political interests and clearly the causes which she is interested in. I am glad to hear you both commit on the record to investigate this matter. I assure you that I'll be intently following up to make sure that this risk to the public's trust in our royal commissions is dealt with in a way that does not prevent the royal commission from achieving the important objective of making sure that we take care of older Australians during this period of vulnerability in their life.

I understand there was a follow-up question from a colleague. With my attention being with you both for a bit, I'll have to check that. We'll go to Senator Siewert, Senator Steele-John and then Senator Patrick. I think I pointed in all the wrong directions then, but go with the names.

Senator SIEWERT: Dr Popple, I'm not going to directly explore the issue around Ms Hannon. There have been some questions asked about some of the communication from the royal commission and the research, which I have been following very closely. I want to be really clear that it was the commission itself that commissioned the two pieces of research that have been referred to. Is that a correct understanding?

Dr Popple : The commission commissioned all of the research that is the subject of various media releases. In fact, in relation to the chair's earlier comment, we released—I think it was yesterday; it might have been the day before—two reports by NARI that had been commissioned by the royal commission.

Senator SIEWERT: And those decisions are made by the commissioners?

Dr Popple : They're made by the royal commission itself—ultimately, I suppose, myself, responsible for the operation of the commission. The commissioners are aware of this, of course, and that was the process that was used. We have an extensive research program, most of it coming to an end now, of course, and those are two of the recent examples from that program.

Senator SIEWERT: I take it that the research is commissioned as a result of the ongoing work of the commission and also following up evidence that you have received.

Dr Popple : Yes. Some of it predated evidence, of course, and some of it becomes evidence, because some of the research material is brought into evidence at some of our hearings.

Senator SIEWERT: I don't think it is an exaggeration to say that you've heard some pretty damning evidence of the aged-care system in this country and some pretty heart-rending evidence on the aged-care system and its impact on older Australians.

Dr Popple : It's probably not for me to characterise that evidence, but certainly there has been a wide variety of evidence, both research and statistical but also, of course, from people with firsthand experience of the aged-care system.

Senator SIEWERT: How does the research that's been done then get used? The commission makes a decision to release the evidence?

Dr Popple : That's right, yes.

Senator SIEWERT: So it's not a decision that's taken by an individual officer or the communications officer; it's taken by the commission?

Dr Popple : That's right, and the media releases that we've been talking about are all cleared by the royal commissioners themselves before they are released.

Senator SIEWERT: Sorry; I had a bit of trouble hearing that. It gets a little bit muffled. Could you say that again?

Dr Popple : The media releases that we've been talking about which cover the research we've been talking about are also cleared by the royal commissioners themselves.

Senator SIEWERT: Thank you. It wasn't you mumbling; it was the tech. I just couldn't hear it properly. I wasn't having a go at the way you were speaking. In terms of the process of the commission of the research, what drives that decision-making? Some of it is perhaps in response to the evidence. You said some of it was commissioned before the evidence. What's the process of that decision-making?

Dr Popple : Pretty much over the life of the commission we've had a research program that has identified areas where there isn't sufficient information about aspects of the commissioners' terms of reference. We embark upon that program. The material that's produced is made public. It can be brought to the attention of witnesses, and they can be asked to comment upon it in some of our hearings, and of course it may well be used by the commissioners in their final report. It was certainly used in the interim report. It can be referred to in the course of them coming to their conclusions and making recommendations.

Senator STEELE-JOHN: We've got an awful amount to unpack there from the testimony so far today, but I just want to start off by clarifying something, probably with Mr Moraitis. Can you give me some clarity, Mr Moraitis, as to whether royal commissioners themselves are subject to the APS Code of Conduct?

Mr Moraitis : I don't think they are. I'd have to take that on notice, however, because I don't want to mislead you. This is based on my off-the-cuff reaction. Can I take that on notice to confirm that? My recollection is probably not, but I'll double-check.

Senator STEELE-JOHN: They would be covered by some code of conduct, though, I'd imagine, wouldn't they?

Mr Moraitis : Not necessarily an APS code of conduct. Ultimately, under the Royal Commissions Act there might be provisions, which we would have to check.

Senator STEELE-JOHN: Okay.

Mr Moraitis : I'll get back to you with a detailed analysis. It's a generic proven misbehaviour type of criteria as per a judiciary or something like that. But, qua APS code of conduct, I'm not necessarily sure. As I said, I'll double-check—cross the t's and dot the i's—on that point for you.

Senator STEELE-JOHN: Particularly if you can clarify what approaches exist around impartiality. I'm aware of the chair's right reference to those relevant manuals around royal commissions and the value of transparency, impartiality and good process to a well-functioning royal commission. It would be very interesting to me to know what exists around the rules for commissioners themselves that actually safeguard those aspects.

Mr Moraitis : My understanding is the chair of a royal commission is responsible for the conduct and dealing with matters relating to other commissioners. But I'd have to also include the issue of the chair themselves or any other royal commissions in totality.

Mr Anderson : I could add to that. There's also the role of courts in scrutinising the conduct of royal commissioners. There have from time to time been court challenges mounted if it has been perceived that a particular commissioner was acting in a way that was unfairly prejudicial to a party—denying them procedural rights. There's that level of check and balance as well.

Senator STEELE-JOHN: Right. Okay. The chair has pointed out the role of political partiality in the running of a royal commission in relation to an employee of that commission. Within a broader context, of course, we have several royal commissions functioning in Australia currently, one of which is the disability royal commission. One of the commissioners of the disability royal commission is a former Liberal MP who, after taking his position, intended to participate in a men's breakfast alongside New South Wales MP Mark Latham, an on-the-record racist and ableist trash bag.

CHAIR: Just be careful how you use parliamentary privilege.

Senator STEELE-JOHN: I just want to make sure that we—

CHAIR: Senator Steele-John, I think you need to be very careful about how you cast slurs like that against colleagues from other parliaments.

Senator STEELE-JOHN: Descriptors.

CHAIR: Don't abuse the privilege that is—

Senator STEELE-JOHN: Absolutely not, Chair. I would be happy to use parliamentary privilege or any other forum any day to describe Mark Latham as a racist bigoted trash bag who no-one should associate with—

CHAIR: Alright. Get on topic, please.

Senator STEELE-JOHN: let alone a royal commissioner about to undertake an historic investigation into ableism. So I am looking to you, Mr Moriatis, for clarification as to what exists to hold a royal commissioner to account in that regard, to ensure that we are not applying a double standard to employees of a commission that aren't, in fact, applied to commissioners themselves appointed by this government.

Mr Moraitis : Yes. By way of clarification, I have one name, and it's Moraitis, and I like the usage of that name. Secondly, Mr Anderson can explain the details. This has come up in previous estimates, and I think our response at the time was that the chair of the royal commission has responsibilities to deal with behavioural biases. Any potential claims of that nature are dealt with by the chair of the commission. But I'll ask Mr Anderson to clarify any further—

CHAIR: Before I let you do that, Mr Anderson, I'm conscious that I have taken the liberty of this committee's time this morning and as a consequence I'm inclined to allow some latitude to other senators in circumstances where you have all given me some latitude by recalling this witness. But the fact that we have recalled the witness is not an invitation to examine on matters that could have been raised in the proper session. It's not an invitation to go over old ground from previous estimates. It was to deal with the sole item that had come to light after the closure of the original program, and so I'd ask senators to direct any questions they have simply to what has arisen this morning, and not seize it as an opportunity, as Senator Steele-John has done, to relitigate matters that he regards as interesting from previous estimates.

Senator STEELE-JOHN: Place it in context.

CHAIR: We'll allow Mr Anderson to answer and then we'll go to Senator Patrick.

Senator STEELE-JOHN: No, I've finished with Mr Anderson. I want to put one last question to Dr Popple to clarify the process that I think he tried to explain to us earlier. In terms of communications issued by the commission that may have been contributed to by a communications person, what's your process for the drafting and final sign-off of those communications? Can you explain that for us?

Dr Popple : It would be depend on the topic. If we take the one that we put out earlier this week, which related to a research report that had been prepared by NARI for us, the relevant area of the commission would have drafted the original words. Other people, including the communications director we were speaking of earlier, would have had an opportunity to edit that to make it as clear as possible. Commissioners would have had an opportunity to clear it, and then it would have been released.

Senator STEELE-JOHN: So, the commissioners have a final clearance function?

Dr Popple : Yes, we take the view that this is a public communication and that only the commissioners, or people that they authorise to do so, can speak on behalf of the royal commission. We took a view from the beginning of the commission that all media releases should be cleared by the commissioners.

Senator STEELE-JOHN: So, it's fair to characterise that release as the view of the commission, rather than the view of the individual who prepared it and then put it to the commission?

Dr Popple : Yes, except to the extent, as I mentioned before, that these media releases frequently—and that one did—include a sentence to the effect that the views in this media release are not necessarily the views of the commissioners, because it reflects research that had been commissioned by the royal commission.

Senator STEELE-JOHN: Alright, thank you.

Senator PATRICK: I have just a couple of follow-up questions and I'm sorry if this has been answered. Ms Hannon's position, is it an APS position or is she just an employee of the royal commission?

Mr Moraitis : I'll ask Mr Anderson to explain

Mr Anderson : She's a non-ongoing employee of the Attorney-General's Department and has a contract that runs until early 2021.

Senator PATRICK: Does that bring her under the umbrella of the Public Service Act Code of Conduct?

Mr Anderson : She's subject to the Public Service Act.

Senator PATRICK: It might be helpful if you could table, for the committee's benefit, what your social media policy is. Is it possible to do that on notice?

Mr Moraitis : We can do that. There's also, as I said, the recently updated Australian Public Service Commission social media policy, which was updated following the High Court judgement in the case of Banerji, which really went to the key matters of social media policy use.

Senator PATRICK: Can I confirm—and this is really for the commissioners' benefit—Dr Popple, that the Twitter account that's being used is a personal account of Ms Hannon; it's got nothing to do with the commission, per se. Is that correct, Dr Popple?

Dr Popple : I believe that's the case. I haven't seen the material, but certainly I'm aware of the material that goes out on the royal commission's social media accounts and I don't believe any of that material has been put up on those.

Senator PATRICK: Does the royal commission have a Twitter account?

Dr Popple : We do.

Senator PATRICK: Mr Moraitis, in the context of Banerji, did the court deal with the differentiation between a tweet, something written by somebody and put on social media, and a retweet, which might simply mean, 'Hey, look at this'?

Mr Moraitis : I'd have to take that on notice. My recollection was that it was the totality of variables, and tweet versus retweet, anonymous, non-anonymous, there's a whole variety of variables that would appear there.

Senator PATRICK: I did a search of the case on AustLII just then and 'retweet' doesn't appear, unless it's perhaps formed up in some other way.

Mr Moraitis : I'll have to reread the judgement. It was quite a while ago that I read it.

Senator PATRICK: I just note some people actively state that—

Mr Moraitis : Sure, I appreciate that. Tweet, retweet—I understand the distinction. But I think it's there and it has to be looked at in totality.

Senator PATRICK: Sure. I wondered if there was clarity around that.

Mr Moraitis : Question: Was the word 'retweet' used in the High Court judgement? I cannot recall. I'd have to check.

Senator PATRICK: Because I know some people, when they retweet, they explicitly state this doesn't mean I necessarily endorse the views. I might just be sharing or drawing attention to something else or someone else's view, which might—

Mr Moraitis : I'll just take it on notice, what the High Court judgement said about retweeting.

Senator PATRICK: Thank you. In relation to staffers, there's nothing that fetters the government employing former Liberal, Labor or crossbench staffers?

Mr Moraitis : I'm not familiar with the latest rules on parliamentary engagement of staffers. I assume under the MOP(S) Act, you're talking about, or—

Senator PATRICK: I'm just saying, if someone leaves the office of a politician, there's nothing in the public service employment conditions or processes that would prohibit a staffer being employed?

Mr Moraitis : No, not necessarily, as far as I'm aware.

Mr Anderson : The merit principle applies, so if it's not about—

Senator PATRICK: Thank you. There are some former Liberal Party staffers, for example, who are members of the AAT?

Mr Moraitis : Members of the AAT come from a variety of backgrounds.

Senator PATRICK: From both sides?

Mr Anderson : That's different to the APS though. The appointment of members of the AAT is governed by section 7 of the AAT Act as opposed to the Public Service Act.

Senator PATRICK: I understand that, but they're still, in some sense, appointed by the government, the Attorney-General.

Mr Anderson : They're appointed by Governor-General on advice of government.

Senator PATRICK: Yes; that's a technicality.

Mr Moraitis : Executive councils!

Senator PATRICK: I think we've been through this before! I just wanted to make sure that just because you've been a staffer doesn't necessarily mean you can't be employed by a royal commission, the AAT, the Department of Health.

Mr Moraitis : As far as the APS is concerned, as Mr Anderson said, the merit principle is the basis of engagement.

Senator PATRICK: Thank you.

Senator CHISHOLM: Dr Popple, I was interested: the retweet from Ms Hannon regarding aged care was from NARI. It was a media report based on—was that one of the research reports that the royal commission had asked for?

Dr Popple : Look, I imagine so. I don't have the retweet in front of me, but certainly we published this week two reports by NARI, and I imagine that that would have been a retweet in relation to one or both of those reports.

Senator CHISHOLM: Yes. So it appears as though it was merely just retweeting an article based on research that the royal commission had asked to be undertaken?

Dr Popple : Certainly there was some media coverage of that research that we published, so that could well be the case, but I don't have it in front of me.

Senator CHISHOLM: Dr Popple, are you aware how many deaths in aged-care homes there have been from COVID this year?

CHAIR: That's not relevant to the matters that are being examined by this committee this morning.

Senator CHISHOLM: I think it's pretty relevant to Australians. It's probably more relevant—

CHAIR: Of course it's relevant to Australians, but it's—

Senator CHISHOLM: than some tweets from a staffer who's got 800 followers.

CHAIR: It is an important matter, and it was properly raised when the open opportunity for asking questions about COVID came.

Senator CHISHOLM: So you're going to shut down questions on deaths in aged care, but you're happy to spend an hour on tweets.

CHAIR: I'm not shutting it down. It's important. This is legal and constitutional affairs. This is about compliance with the proper processes for running a royal commission. If you want to talk about deaths from COVID, there's the COVID committee to deal with that. There's the community affairs committee, which deals with matters arising from health. Let's not do a pivot here.

Senator CHISHOLM: I think it just goes to the government's priorities in this regard.

CHAIR: Well, I think it reflects the political interference that's being run by the Labor Party for people who are—

Senator CHISHOLM: The only political interference is you guys ignoring the interim report from the aged-care royal commission.

CHAIR: acting inappropriately in their roles as supposedly independent officers of a royal commission. It's extraordinary that you'd run a protection racket for that. I think we've taken this as far as we need to this morning. I'm, sorry, Senator Henderson, you have two questions and then we'll close this off and we'll resume the program that has been planned for today.

Senator HENDERSON: Thank you very much, Chair. Good morning. I want to say that I'm completely shocked by the material which you have brought forward this morning in estimates. I want to ask Dr Popple just a couple of quick questions. Dr Popple, why were you not aware of these social media publications by one of your senior members of staff?

Dr Popple : I'm not on Twitter myself, so I haven't read those tweets—

Senator HENDERSON: I appreciate that, but why—

Dr Popple : and, as I understand it, they weren't on the royal commission's Twitter feed that they put out.

Senator HENDERSON: So you were not in any way aware of these publications. The question is: why were you not aware?

Senator PATRICK: He answered that—he doesn't have a Twitter account!

Dr Popple : Well, Senator Henderson, I think I've answered that. I should assure you that I'm aware of our public tweets and the material we put out publicly as a royal commission, but I'm not aware of what any staff might be doing on their personal Twitter accounts.

Senator HENDERSON: Okay, thank you. I want to refer to the most recent tweet by Ms Hannon, the one concerning NARI, where she starts off by saying, 'The complaint system is broken'. That's a re-tweet of a tweet of NARI. Was that a publication that was authorised by you?

Dr Popple : Was that tweet a publication—is that what you're saying?

Senator HENDERSON: That's right. Ms Hannan's re-tweet: was that a publication authorised by you?

Dr Popple : No, I'm not aware of that—sorry, I'm certainly aware of the NARI publication, because we publish that. That's a research report. I'm aware of some media coverage of those research reports but I'm not aware of anything beyond that.

Senator HENDERSON: Thank you very much, Dr Popple, I have no further questions.

CHAIR: Thank you very much, officers. We will close off this examination into royal commissions and move on to the National Archives of Australia.

Senator Henderson, I've just done a quick flick through; it looks like Dr Popple is on Twitter!

Senator HENDERSON: Oh.