Dear Fair Work Building and Construction,

The Public Service Act 1999 establishes a statutory Code of Conduct that binds all APS employees and agency heads to defined behavioural standards. It has been said that the scheme that currently applies in the Australian Public Service is robust and effective. Media articles and a Federal Court report indicate that from 1 January 2013 to 28 July 2016 false information was disseminated by Fair Work Building and Construction (now ABCC), and the Agency was aware the information was false.

Paragraph 43 of the Court decision reads:
[I consider that a declaration of contravention of the legislation by the Director is appropriate. 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.......]

FWBC’s corporate governance framework determines how the agency exercises its authority and the way in which it will deliver outcomes, initiatives and programs. The framework promotes and upholds the Australian Public Service Values and Code of Conduct. Apparently, FWBC has corporate governance practices to ensure clear lines of accountability and well-defined, effective management of the agency’s performance. These practices are overseen and supported by boards and committees. Is the framework effective? In 2016 FWBC conducted its first self-assessment against the Regulator Performance Framework (RPF) for the period from 1 7/15 to 30/6/16. Under KPI 2.2 [ FWBC provides guidance and information that is up to date, clear, accessible and concise] the Agency claims it has achieved that measure. Why the claimed achievement is correct in circumstances where information provided by FWBC between 1 Jan 2013 and 26 July 2016 was false is not explained in the self-assessment report.

There seems to be no material in the public domain that indicates remedial action has been taken by the FWBC (ABCC) in relation to the false information disseminated by the FWBC to industry and the general public. By material in the public domain I mean an ABCC media release and or notice explaining the matter and remedial steps taken, an e-mail alert or similar type document to industry about the issue etc etc. The mere fact that updated material was apparently published on the ABCC website on 2 August 2016 does not remedy the false information disseminated by the FWBC (ABCC) for over two and a half years. The FWBC (ABCC) has known since Jan 2013 that it was disseminating false information, it seems to have stopped disseminating the false information in August 2016 and appears to have taken no steps to correct the false information disseminated to the industry and the public over the previous two and a half years.

Under FOI I seek access to documents that relate to action contemplated or taken by the FWBC (now ABCC) since 28 July 2016 to remedy the effect of the false information it disseminated between January 2013 and August 2016.
………….

Yours faithfully,

JS

Dear ABCC - FOI,

Yes - I agree agree to withdraw my FOI request dated 11 October 2017.

Yours sincerely,

JS

Dear ABCC - FOI,

Thank you for your email of 3 November. I do have queries.

On 7 Oct 2017 I made what I consider a valid FOI application for access to documents. On 3 Nov 2017 I received an email from the ABCC to the effect that unidentified individuals within the ABCC considered that two documents referred to in their email and publicly available, satisfies my request. My queries are:
(a) Is the ABCC satisfied that the response of 3rd November to a valid FOI application for access to documents meets the obligations imposed on the ABCC by FOI legislation and/or OAIC Guidelines?
If the answer to my query is yes, please let me know so that I can consider an application for an internal review of the decision made and communicated by way of the 3 Nov email.
If the answer to my query is no, please let me know what the ABCC proposes to do to meet its FOI obligations.

(b) Please provide me with names and positions held of the individuals who refer to themselves as ‘We’ in the email of 3 Nov.

I have other concerns, in no particular order, about the response. The following 2 paragraphs are extracted from my application dated 7 October:

[ There seems to be no material in the public domain that indicates remedial action has been taken by the FWBC (ABCC) in relation to the false information disseminated by the FWBC to industry and the general public. By material in the public domain I mean an ABCC media release and or notice explaining the matter and remedial steps taken, an e-mail alert or similar type document to industry about the issue etc etc. The mere fact that updated material was apparently published on the ABCC website on 2 August 2016 does not remedy the false information disseminated by the FWBC (ABCC) for over two and a half years. The FWBC (ABCC) has known since Jan 2013 that it was disseminating false information, it seems to have stopped disseminating the false information in August 2016 and appears to have taken no steps to correct the false information disseminated to the industry and the public over the previous two and a half years.
Under FOI I seek access to documents that relate to action contemplated or taken by the FWBC (now ABCC) since 28 July 2016 to remedy the effect of the false information it disseminated between January 2013 and August 2016 .]

The following paragraphs are extracts from the ABCC email response dated 3rd Nov from unidentified individuals within the ABCC:

[ We refer to your email dated 7 October 2017 to the Australian Building and Construction Commission (ABCC) in which you made an access request under the Freedom of information Act 1982 (Cth) (FOI Act) (the FOI request). Pursuant to section 15(5) of the FOI Act, the relevant period the ABCC has in order to notify you of a decision is 30 days commencing from the date the FOI request was received.

You noted the following in the email dated 7 October 2017:
There seems to be no material in the public domain that indicates remedial action has been taken by the FWBC (ABCC)......

We wish to advise you that the ABCC has previously published information relevant to the subject you raised in your 7 October 2017 email. On 2 August 2016, the then FWBC published an e-alert regarding the revision and reissuing of right of entry materials. That e-alert can be found here: https://www.abcc.gov.au/news-and-media/l.... Since that time the agency’s website has been updated for its transition to the ABCC and some of the materials referred to in that e-alert are no longer available online. However, we note that the right of entry factsheet is publicly available on the agency's website (www.abcc.gov.au). That fact sheet can be found here: https://www.abcc.gov.au/resources/fact-s...

Given that such information is freely accessible to you and the wider public through the ABCC website as referred to above, we consider this satisfies your request.]

The Federal Court decision provided the following background to the 2 Aug E-alert: On 25 July 2016, Mr David Noonan, the National Secretary of the Construction and General Division of the CFMEU, wrote to the Director and informed him that the Factsheet, Poster and Pocket Guide misrepresented the requirements of s 492 of the FW Act. On 28 July 2016, the Director directed that the Factsheet, Poster and Pocket Guide be removed from circulation and the FWBC website pending receipt of advice concerning Mr Noonan’s letter. Amended versions of the Factsheet, Poster and Pocket Guide, updated to reflect s492 of the FW Act, were published on the FWBC website on 2 August 2016.

This is an extract from the E-alert dated 2 August 2016 referred to in the ABCC 3rd Nov email:
[2 August 2016 E-Alert
FWBC has reviewed and reissued 3 publications relating to Right of Entry.
The publications are:
* Right of Entry – What to do when a union official comes on your site
* Right of Entry – 3-step pocket guide
* Right of Entry poster
The reissued publications set out the Right of Entry rights and responsibilities in more detail.]

The 2 August 2016 E-alert reveals the ABCC (FWBC) had reviewed 3 of its publications and reissued 3 publications that contained more detailed information about Right of Entry rights and responsibilities. There is no suggestion or hint of remedial action relating to false information in the E Alert or in the 3 publications reviewed and reissued. Absent an acknowledgement that the previous information was false, I struggle with the proposition that by providing accurate information in August 2016 the FWBC (ABCC) remedied the character of false information disseminated by the FWBC (ABCC) between 1 January 2014 and 28 July 2016.

Read today, the E-alert dated 2nd August 2016 suggests the ABCC (FWBC) decided (a) to cease disseminating false information in 3 of its publications, (b) to publish accurate information in 3 publications and (c) not to disclose that in the previous 2 and a half years it had disseminated false information in 3 publications. The suggestions at (a) and (c) flow from knowledge imparted by the following extract of the Federal Court Judgement “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 ABCC would also be aware of another E-Alert published on 19 June 2017 under the heading Right of Entry – 19 June 20.
In recent correspondence from the CFMEU to the ABCC, the CFMEU raised two specific matters relating to the ABCC’s right of entry educational material. Having considered the correspondence, the ABCC has made changes to its materials to ensure that the following matters are clear to all industry participants:
Entry to investigate suspected contravention …….
Entry to hold discussions …….

The information provided in the e-alert of June 2017 stands in stark contrast to the e-alert of 2nd August 2016. In one e-alert there is an explanation provided for the changes to the right of entry educational material. The other email alert is silent about the reason for the changes and does not disclose that the information in the right of entry educational material was false. One e alert was issued while court proceedings involving the Director were underway, the other e-alert was issued prior to those court proceedings. In any event is it likely neither e-alert falls within the ambit of the FOI application.

As for other documents that may fall within the ambit of the request, it appears the ABCC made no attempt to identify potentially relevant documents other than the August E Alert and reissued right of entry materials. Documents that may be relevant include documents containing information about ABCC personnel being instructed or advised to inform (a) any or all of the 5,882 persons who made enquiries to the ABCC in 2016/17 that the false information previously circulated had been remedied by way of 3 new publications, (b) any or all of the 5552 people who attended presentations by the ABCC in 2016/2017 that the false information previously circulated had been remedied by way of 3 new publications (c) persons they encountered on their 1058 sites that the false information previously circulated had been remedied by way of 3 new publications and to request removal of any false material displayed at the sites.

In the March 2015 Industry Update the message from the Director was:
“A number of issues loom large this year, and it is more important than ever that people in the building and construction industry can stay in touch with the right information from FWBC. To help get the correct information when and where it is needed, I am pleased to announce FWBC has launched an App for iPhone, iPad and Android. The new FWBC App will help people get crucial information based on their role in the industry, and comes with real life examples to help identify on-site issues.” There may be documents in the possession of the Agency that relate to the FWBC App that fall within the ambit of the FOI application.

The Director directed that the Factsheet, Poster and Pocket Guide be removed from circulation and the FWBC website – I presume there is a record of that direction and if so then that is a document that would likely fall within the ambit of the FOI application.

Yours sincerely,

JS

Dear ABCC - FOI,

I apologize if the content of my 15 Nov email had the effect of creating the erroneous impression I considered the ABCC email of 3 Nov was drafted other than in good faith.

I was not aware of the need for an agency to process a request, wherever possible, administratively and at the lowest possible cost. The OAIC website provides the following insights:
'Administrative access means release of government information, in response to a specific request, outside the formal process set out in the Freedom of Information Act 1982 (FOI Act). The FOI Act is not intended to restrict the circumstances in which government information can be released. Section 3A(2) states that it is not the intention of the Parliament in enacting the FOI Act to limit the power of agencies to publish information or give access to documents, or to prevent or discourage agencies from doing so. An agency may disclose information without a formal FOI request, including information which would be exempt under the Act. It is open to an agency after receiving an FOI request to initiate discussion with the applicant about providing access on an administrative basis. This may benefit the applicant by providing information as well as documents, more quickly and without charge. If this path is followed, it may be advisable to seek the applicant’s agreement to suspend processing the FOI request, or even to withdraw the FOI request if the applicant is satisfied with the administrative release option.'

The ABCC 3 Nov email provided administrative access to publicly available documents together with helpful information about the ABCC website transition from the former FWBC to the ABCC. However, the email was silent about the status of my FOI application. It was curiosity about the status of my FOI application that prompted my queries in my 15 Nov email. Indeed, I remain curious because the OAIC guidelines state that the FOI Act specifies that a decision relating to a request made to an agency may be made by the responsible minister or the principal officer of the agency, or by officers who are properly authorised (s 23(1)). And further, the guidelines state that an officer should confirm that they are authorised before making a decision. Using those measures a decision on my FOI application has not been made, or at least not communicated to me.

In the circumstances I request a decision on my FOI application of 7 October 2017 that read:

Under FOI I seek access to documents that relate to action contemplated or taken by the FWBC (now ABCC) since 28 July 2016 to remedy the effect of the false information it disseminated between January 2013 and August 2016.

Yours sincerely,

JS

Dear ABCC - FOI,

Thank you for your email of 21 November.

I seek a decision on my FOI application dated 7 October 2017.

In the email of the 21 November 2017 ABCC informs me that the reference to processing access requests promptly and at the lowest costs possible, can be found in s 3(4) of the Freedom of Information Act 1982 (Cth) (FOI Act). That information stands in stark contrast to the material contained in the ABCC email of Nov 17 in which the ABCC informed me of the need for an agency to process a request, wherever possible, administratively and at the lowest possible cost.

I made a valid FOI application on 7 October 2017. The FOI Act has timeframes as follows:

Timeframes for dealing with request
(5) On receiving a request, the agency or Minister must:
(a) as soon as practicable but in any case not later than 14 days after the day on which the request is received by or on behalf of the agency or Minister, take all reasonable steps to enable the applicant to be notified that the request has been received; and
(b) as soon as practicable but in any case not later than the end of the period of 30 days after the day on which the request is received by or on behalf of the agency or Minister, take all reasonable steps to enable the applicant to be notified of a decision on the request (including a decision under section 21 to defer the provision of access to a document).

The FOI Act has a section on decisions:

23 Decisions to be made by authorised persons
(1) Subject to subsection (2), a decision in respect of a request made to an agency may be made, on behalf of the agency, by the responsible Minister or the principal officer of the agency or, subject to the regulations, by an officer of the agency acting within the scope of authority exercisable by him or her in accordance with arrangements approved by the responsible Minister or the principal officer of the agency.

(2) A decision in respect of a request made to a court, or made to a tribunal, authority or body that is specified in Schedule 1, may be made on behalf of that court, tribunal, authority or body by the principal officer of that court, tribunal, authority or body or, subject to the regulations, by an officer of that court, tribunal, authority or body acting within the scope of authority exercisable by him or her in accordance with arrangements approved by the principal officer of that court, tribunal, authority or body.

To date a decision has not been made on my application of 7 October, or if a decision has been made by the principal officer or by an authorised officer that decision has not been communicated to me.

The following information is published on the OAIC website:

The principal officer of the agency or minister is taken to have made a decision to refuse access to the document on the last day of the decision period. Agencies should continue to process an FOI request even where the statutory timeframe has expired and an extension of time has been refused or not sought. The expiry of the timeframe gives the applicant the right to apply for review of a deemed decision — it does not remove the agency's obligation to process the request.

Once I receive a decision on my 7 October FOI application then, if necessary, I can consider further options that may be available to me.

Yours sincerely,

JS

Dear ABCC - FOI,

A response to this FOI application is awaited.

OAIC Guidelines : The principal officer of the agency or minister is taken to have made a decision to refuse access to the document on the last day of the decision period. Agencies should continue to process an FOI request even where the statutory timeframe has expired and an extension of time has been refused or not sought. The expiry of the timeframe gives the applicant the right to apply for review of a deemed decision — it does not remove the agency's obligation to process the request.

Yours sincerely,

JS

Dear ABCC - FOI,

Thank you for your email.

The ABCC asserts that (a) it processed the FOI Request and a decision was made to grant
access to two documents within the scope of the FOI Request and (b) the ABCC decision on the request was communicated by email dated 3 November 2017.

If the ABCC assertion is correct, then it is reasonable to conclude that the ABCC would have met its other obligations under the FOI Act. Relevantly, the ABCC Disclosure Log does not contain an entry reflecting the ABCC assertion about its access decision and release of documents in November 2017.

Yours sincerely,

JS