Dissemination by the FWBC of false information - ethics and accountability in the Commonwealth Public Sector
Dear Attorney-General's Department,
A non-corporate Commonwealth entity is to report as soon as possible to the Attorney-General or OLSC on significant issues that arise in the provision of legal services, especially in handling claims and conducting litigation. These issues will include matters where: (a) the size of the claim, the identity of the parties or the nature of the matter raises sensitive legal, political or policy issues.
In July 2016 Fair Work Building and Construction (FWBC now ABCC) was a non-corporate Commonwealth entity. Federal Court proceedings under Fair Work legislation were instituted against the Director of FWBC on 19 Aug 2016 and on 18 October 2016 the Commonwealth of Australia was joined to the case. On 8 Sept 2017 the applicant and the Commonwealth consented to the proceedings against the Commonwealth being dismissed. The case against the Director was subject of a Federal Court judgement on 29 Sept 2017. As the Judge found : “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 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. Clause 1.3(f) of the Australian Public Service Commissioner’s Directions 2013 require all APS employees, having regard to their duties and responsibilities, to report and address misconduct and other unacceptable behaviour by public servants in a fair, timely and effective way. Failure to report suspected misconduct may itself warrant consideration as a potential breach of the Code.
I seek access under FOI to documents in the possession of the Department relating to any assessment or consideration - conducted in the period 1 December 2013 to 12 September 2017 – that the behaviour of the Director of the Fair Work Building Industry Inspectorate involved a potential breach of the Australian Public Service Code of Conduct.
Yours faithfully,
JS
UNCLASSIFIED
FOI17/169
Dear JS,
I refer to your request under the Freedom of Information Act 1982 (FOI
Act) for access to documents as follows:
" I seek access under FOI to documents in the possession of the Department
relating to any assessment or consideration - conducted in the period 1
December 2013 to 12 September 2017 – that the behaviour of the Director of
the Fair Work Building Industry Inspectorate involved a potential breach
of the Australian Public Service Code of Conduct.."
If you disagree with this interpretation of your request, please let me
know as soon as possible.
We received your request on 7 October 2017 and the 30 day statutory period
for processing your request commenced from the day after that date. You
should therefore expect a decision from us by 6 November 2017. The period
of 30 days may be extended if we need to consult third parties or for
other reasons. We will advise you if this happens.
It is the usual practice of the department to not disclose the names and
contact details of junior officers of the department and other government
agencies, where that personal information is contained in documents within
the scope of a request. The names and contact details of senior officers
will generally be disclosed. We will take it that you agree to the
removal of junior officers’ personal information unless you advise that
you would like us to consider releasing that information as part of the
documents you have requested.
Please note that information released under the FOI Act may later be
published online on our disclosure log
[1]http://www.ag.gov.au/RightsAndProtection...,
subject to certain exceptions. (For example, personal information will not
be published where this would be unreasonable.)
We will contact you using the email address you provided. Please advise if
you would prefer us to use an alternative means of contact.
If you have any questions, please contact [2][AGD request email].
Yours sincerely,
FOI Case Manager
Freedom of Information and Parliamentary Section
Strategy and Delivery Division | Attorney-General’s Department
T: (02) 6141 6666 | E: [3][AGD request email]
From: JS [[4]mailto:[FOI #4126 email]]
Sent: Saturday, 7 October 2017 1:27 PM
To: FOI Requests
Subject: Freedom of Information request - Dissemination by the FWBC of
false information - ethics and accountability in the Commonwealth Public
Sector
Dear Attorney-General's Department,
A non-corporate Commonwealth entity is to report as soon as possible to
the Attorney-General or OLSC on significant issues that arise in the
provision of legal services, especially in handling claims and conducting
litigation. These issues will include matters where: (a) the size of the
claim, the identity of the parties or the nature of the matter raises
sensitive legal, political or policy issues.
In July 2016 Fair Work Building and Construction (FWBC now ABCC) was a
non-corporate Commonwealth entity. Federal Court proceedings under Fair
Work legislation were instituted against the Director of FWBC on 19 Aug
2016 and on 18 October 2016 the Commonwealth of Australia was joined to
the case. On 8 Sept 2017 the applicant and the Commonwealth consented to
the proceedings against the Commonwealth being dismissed. The case
against the Director was subject of a Federal Court judgement on 29 Sept
2017. As the Judge found : “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 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. Clause 1.3(f) of the Australian
Public Service Commissioner’s Directions 2013 require all APS employees,
having regard to their duties and responsibilities, to report and address
misconduct and other unacceptable behaviour by public servants in a fair,
timely and effective way. Failure to report suspected misconduct may
itself warrant consideration as a potential breach of the Code.
I seek access under FOI to documents in the possession of the Department
relating to any assessment or consideration - conducted in the period 1
December 2013 to 12 September 2017 – that the behaviour of the Director of
the Fair Work Building Industry Inspectorate involved a potential breach
of the Australian Public Service Code of Conduct.
Yours faithfully,
JS
-------------------------------------------------------------------
Please use this email address for all replies to this request:
[5][FOI #4126 email]
Is [6][AGD request email] the wrong address for Freedom of Information requests
to Attorney-General's Department? If so, please contact us using this
form:
[7]https://www.righttoknow.org.au/change_re...
This request has been made by an individual using Right to Know. This
message and any reply that you make will be published on the internet.
More information on how Right to Know works can be found at:
[8]https://www.righttoknow.org.au/help/offi...
If you find this service useful as an FOI officer, please ask your web
manager to link to us from your organisation's FOI page.
-------------------------------------------------------------------
Privacy Collection Notice
When you make a request for documents or an inquiry about privacy matters,
the Attorney-General s Department will only collect your personal
information where it is reasonably necessary for, or directly related to,
our functions under the Freedom of Information Act 1982 or the Privacy Act
1988. We may collect your name, email address and telephone number so that
we can contact you about your request under the Freedom of Information Act
for access to documents or access to, or correction of, personal
information; or a complaint you have made or your request for access to,
or correction of, personal information under the Privacy Act. If your
request concerns your personal information, we will collect the minimum
amount of evidence necessary to verify your identity. The handling of your
personal information is protected by the Privacy Act 1988 and our privacy
policy is available at http://www.ag.gov.au/Pages/Privacystatem....
If you have an enquiry or complaint about your privacy, please contact the
Privacy Contact Officer on 02 6141 2660 or via e-mail [email address].
--------------------------------------------------------------------------
References
Visible links
1. http://www.ag.gov.au/RightsAndProtection...
2. mailto:[AGD request email]
3. mailto:[AGD request email]
4. mailto:[FOI #4126 email]
5. mailto:[FOI #4126 email]
6. mailto:[AGD request email]
7. https://www.righttoknow.org.au/change_re...
8. https://www.righttoknow.org.au/help/offi...
UNCLASSIFIED
FOI17/169; 17/11062
Dear JS
Please find attached the decision in respect of your FOI request below.
Yours sincerely
FOI Case Officer
Freedom of Information and Parliamentary Section Strategy and Delivery Division | Attorney-General’s Department
T: (02) 6141 6666 | E: [AGD request email]
Dear Attorney-General's Department,
Thank you for your response in which you convey your decision to refuse my request under section 24A of the FOI Act, ( provides for a refusal where documents cannot be found, do not exist or have not been received)
I apply for an internal review of that decision.
I agree that the Attorney-General’s Department has no role in undertaking assessments of agency compliance with the APS Code of Conduct other than its own. You note that Individual agencies are responsible for their own compliance and assessment and accordingly, the department has no documents that fall within the scope of my FOI application. I do not accept the proposition that because Individual Agencies are responsible for their own compliance and assessment it follows that the Department has no documents that fall within the scope of my FOI application.
Moreover, your response does not refer to any enquiry or search undertaken of documents in the possession of the Department that would tend to support the decision documents cannot be found, do not exist or have not been received.
Agency Heads are required to establish procedures for determining whether an APS employee, or former employee, in the agency has breached the Code of Conduct. The FOI request is not about agency compliance with the APS Code of Conduct, or about an APS employee, or former employee. The FOI request relates to a now former Agency Head, a position not subject to agency procedures but by the APS Commissioner who has an inquiry function into allegations of misconduct by agency heads.
As I mentioned in my FOI application, Federal Court proceedings under Fair Work legislation were instituted against the Director of FWBC on 19 Aug 2016. FWBC was required to report as soon as possible to the Attorney-General or OLSC on significant issues that arise in the provision of legal services, especially in handling claims and conducting litigation.
All APS employees but particularly Senior Executive Service employees are required to uphold the Values and Employment Principles, and promote them by personal example and other appropriate means. A diligent officer(s) within the Department may well have pondered that, if established, the behaviour of the Director of the Fair Work Building Industry Inspectorate 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 assessments. 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.
It may be the case that relevant documents do not exist. Nevertheless, I do not accept, given the matters set out in its response of 26th October, that the Agency discharged its FOI obligations in this instance.
A full history of my FOI request and all correspondence is available on the Internet at this address: https://www.righttoknow.org.au/request/d...
Yours faithfully,
JS
UNCLASSIFIED
FOI17/169; 17/11062
Dear JS
I refer to your application under the Freedom of Information Act 1982 (FOI
Act) for internal review of the decision of the Department, notified to
you on 27 October 2017.
We received your application on 15 November 2017 and the 30 day statutory
period for completing the internal review commenced from the day after
that date. You should therefore expect a decision from us by 15 December
2017.
Please note that information released under the FOI Act may later be
published online on our disclosure log
[1]http://www.ag.gov.au/RightsAndProtection...,
subject to certain exceptions. (For example, personal information will not
be published where this would be unreasonable.)
Please contact the FOI unit on the contact details below if you have any
queries.
Yours sincerely
FOI Case Manager
Freedom of Information and Parliamentary Section
Strategy and Delivery Division | Attorney-General’s Department
T: (02) 6141 6666 | E: [2][AGD request email]
UNCLASSIFIED
Dear JS
Please find attached a decision in response to your request for internal review below.
Yours sincerely
FOI Case Manager
Freedom of Information and Parliamentary Section Strategy and Delivery Division | Attorney-General’s Department
T: (02) 6141 6666 | E: [AGD request email]