Dear Australian Public Service Commission,

Under FOI I seek access to a document that demonstrates that, between 1 December 2013 and 12 September 2017, the Australian Public Service Commissioner ( Mr Sedgwick or Mr Lloyd) and /or the Australian Public Service Commission assessed or otherwise considered whether the behaviour of the Director of the Fair Work Building Industry Inspectorate may involve a breach of the Australian Public Service Code of Conduct.

Yours faithfully,

JS

Dear Australian Public Service Commission,

I apply for an internal review of the decision made on 25 Oct 2017.

The principles of good public administration lie at the heart of the democratic process and the confidence the public has in the way public servants exercise authority when meeting government objectives. Good public administration is a protection not only against inefficiency and poor performance, but also against fraud, corruption, inequity, inability to conduct business confidently and infringement of human rights. Together the APS Values, the APS Employment Principles and the APS Code of Conduct set out the standard of behaviour expected of agency heads and APS employees. They provide the public with confidence in the way public servants behave, including in their exercise of authority when meeting government objectives. There is a public interest in the community having confidence and trust in the operation of the ABCC and APSC. There is a public interest in ensuring that the Code of Conduct scheme that applies in the APS is robust and effective, and not one that would be regarded as being ineffective and indulgent.

The APS Commissioner has a statutory role to investigate allegations of misconduct by agency heads and statutory office holders. Pursuant to section 25 of the FOI Act, the Commission neither confirms nor denies the existence of a document, or documents falling within the scope of my FOI application, because the authorised officer is satisfied that in the event any documents exist that relate to my FOI application, they are exempt under section 37 of the FOI Act. The authorised officer goes on to state that Section 37 of the FOI Act provides that a document is exempt if its disclosure would, or could reasonably be expected to prejudice the conduct of an investigation of a breach, or possible breach of the law or prejudice the enforcement or proper administration of the law or could reasonably be expected to prejudice the effectiveness of the methods or procedures used to investigate, detect or deal with matters arising from breaches of the law.

FOI ACT S37 (in part) Documents affecting enforcement of law and protection of public safety

37(1) A document is an exempt document if its disclosure under this Act would, or could reasonably be expected to:
(a) prejudice the conduct of an investigation of a breach, or possible breach, of the law, or a failure, or possible failure, to comply with a law relating to taxation or prejudice the enforcement or proper administration of the law in a particular instance;
(b) disclose, or enable a person to ascertain, the existence or identity of a confidential source of information, or the non-existence of a confidential source of information, in relation to the enforcement or administration of the law; or
(c) endanger the life or physical safety of any person.

(2) A document is an exempt document if its disclosure under this Act would, or could reasonably be expected to:
(a) prejudice the fair trial of a person or the impartial adjudication of a particular case;
(b) disclose lawful methods or procedures for preventing, detecting, investigating, or dealing with matters arising out of, breaches or evasions of the law the disclosure of which would, or would be reasonably likely to, prejudice the effectiveness of those methods or procedures; or
(c) prejudice the maintenance or enforcement of lawful methods for the protection of public safety

In accordance with paragraph 5.83 of the OAIC FOI Guidelines, the authorised officer considered the circumstances surrounding the creation of any potential document, or documents that would fall into the scope of my FOI application, and the possible consequences of their release. I understand the authorised officer determined that disclosure of the existence of any document, or documents relating to a Code of Conduct allegation, consideration, investigative process or outcomes would, or could reasonably be expected to prejudice the conduct of an investigation of a breach, or possible breach of the law, prejudice the impartial adjudication of a particular case, or may disclosure lawful methods for investigating or dealing with matters arising from breaches of the law.

The OAIC Guidelines at 5.52 state: As use of this section has the effect of refusing a request for access to a document without providing reasons, use of s 25 should be reserved strictly for cases where the content of the material requires it. At 5.86 the Guidelines state: section 37(1)(a) applies to documents only where there is a current or pending investigation and release of the document would, or could reasonably be expected to, prejudice the conduct of that investigation. Because of the phrase ‘in a particular instance’, it is not sufficient that prejudice will occur to other or future investigations: it must relate to the particular investigation at hand. In other words, the exemption does not apply if the prejudice is about investigations in general. Consequently, I do not consider that the authorised officer can rely on section 37(1)(a) in respect of documents that may fall within the ambit of the FOI application in relation to the behaviour of the Director of FWBII, the details of which are now in the public arena. There are strong indications in the public record that there is no current or pending Code of Conduct investigation by the APSC into the behaviour of the Director of FWBII.

On 16 October 2013 the then Minister for Employment Eric Abetz announced two appointments to the Fair Work Building Industry Inspectorate (FWBII). Mr Nigel Hadgkiss was appointed as Director, and the Hon. John Lloyd PSM was appointed as the Chair of the FWBII Advisory Board. “Mr Hadgkiss and Mr Lloyd bring a great depth of experience to their roles, particularly having formerly been Deputy Commissioner and Commissioner respectively, of the Australian Building and Construction Commission (ABCC),” Senator Abetz said.

On 13 September 2017 the Director of FWBII resigned from his position effective 27 Sept 2017. On 29 September 2017 the Federal Court found, in an application brought by the CFMEU, that the Director of FWBII had contravened section 503(1) of the Fair Work Act 2009(Cth) on 19 December 2013. In his decision the Judge stated “The conduct of the Director was serious. The Director admitted to contravening a law he was required to police. The consequence of his conduct was the dissemination by the FWBC - at his direction - of false information to the industry of which the FWBC was not only the regulator, but supposedly a trustworthy source of reliable information for industry participants.” The Court ordered the Director of FWBII pay a pecuniary penalty in the amount of $8,500.

In 2013 the Commonwealth Parliament amended the Public Service Act to make it clear that agencies could continue or initiate misconduct inquiries in relation to employees who had separated from the APS. I understand that the Director of FWBII was not an employee of the APS but rather a statutory office holder appointed by the Minister of Employment pursuant to s 15 of the FWBI Act (or by instrument made by Cabinet in October 2013). The legislation to re-establish the ABCC, which was passed by the Parliament on 30 November 2016, automatically transitioned Mr Hadgkiss from his previous office as Director, Fair Work Building and Construction, to the office of Commissioner of the ABCC. As a former Agency Head it would appear that a Code of Conduct inquiry could not continue or be initiated into past behaviour. Accordingly, I believe the reliance by the authorised officer on section 25 via sections 37(1)(a) and 37(2)(a) is inappropriate.

The authorised officer mentions the terms of section 37(2)(b) - A document is an exempt document if its disclosure under this Act would, or could reasonably be expected to disclose lawful methods or procedures for preventing, detecting, investigating, or dealing with matters arising out of, breaches or evasions of the law the disclosure of which would, or would be reasonably likely to, prejudice the effectiveness of those methods or procedures. Again I do not believe this is appropriate to any and all documents relating to a Code of Conduct allegation or investigation etc. I note that the disclosure logs of some agencies contain documents that relate to code of conduct inquiries at agency level. My FOI application does not seek access to documents containing details of allegations, investigations, or outcomes. I seek access to a document that demonstrates that, between 1 December 2013 and 12 September 2017, the Australian Public Service Commissioner (Mr Sedgwick or Mr Lloyd) and /or the Australian Public Service Commission assessed or otherwise considered whether the behaviour of the Director of the Fair Work Building Industry Inspectorate may involve a breach of the Australian Public Service Code of Conduct.

During 2016 the APSC was a subscriber to The Australian newspaper. The following is the text of an article published in The Australian on 23 August 2016.

CFMEU challenges Fair Work’s ‘misleading’ information.

The construction union claims taxpayer-funded information being handed out by the building industry watchdog is reckless and illegal.

The CFMEU on Monday began action seeking penalties in the Federal Court in Sydney against Nigel Hadgkiss, the director of the Fair Work Building Industry Inspectorate.

The union says pocket guides and posters misrepresent the right to entry provisions of the Fair Work Act, which stipulate union officials are permitted to meet with employees in lunch sheds where other arrangements are not mutually agreed to.

Mr Hadgkiss told AAP in a statement: “It is inappropriate to comment on an action of this nature whilst the matter is before the court.”

CFMEU national construction division secretary Dave Noonan said Mr Hadgkiss should know better. “It’s galling to think that Mr Hadgkiss, whose organisation have charged themselves with solely and doggedly policing right of entry disputes between the union and employers, would have promoted and distributed such critically false information,” Mr Noonan said in a statement.

The APS Commissioner has a statutory role to investigate allegations of misconduct by agency heads and statutory office holders. A diligent officer(s) within the APSC may well have pondered that, if established, the behaviour of the Director of the Fair Work Building Industry Inspectorate mentioned in the newspaper article may involve a potential breach of the Australian Public Service Code of Conduct, and further that diligent officer(s) may have recorded their ponderings or assessment. I am sure a diligent officer(s) would not condone a practice of not recording issues (i.e. don't put it in writing) to avoid any chance of a mention in FOI documents. If such a document exists I do not consider it would be exempt under section 37(2)(b).

The authorised officer also stated “I note that the FOI Act does not provide for controls or restriction on subsequent use or dissemination of information released under the FOI Act. Your request has been submitted via a publically accessible website. Therefore, in the event documents were to exist in relation to your request, release of such information would be release to the world at large”. I agree that the FOI Act does not provide for controls or restriction on subsequent use or dissemination of information released under the FOI Act. I do not agree with the proposition that “in the event documents were to exist in relation to your request, release of such information would be release to the world at large”. Release of the documents would be in response to my FOI application. The fact that released documents would also be published on this website should not be a factor in any Agency determination of my FOI application.

A full history of my FOI request and all correspondence is available on the Internet at this address: https://www.righttoknow.org.au/request/c...

Yours faithfully,

JS