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 (FWBC now ABCC), and the Agency was aware the information disseminated was false.

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. It seems FWBC (ABCC) is or was represented on the Australian Public Service Commission (APSC) Ethics Contact Officer Network (ECONET), a network that promotes the Government’s ethical agenda which focuses on enhancing ethics and accountability in the Commonwealth Public Sector.

In the Federal Court report dated 29 Sept 2017 it is revealed that the Director of the Fair Work Building Industry Inspectorate was supported by approximately 130 staff at the time of his appointment, including approximately 20 lawyers and 30 officers undertaking corporate functions. 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".

I seek access under FOI to documents in the possession of the Agency 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

Dear ABCC - FOI,

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

Yours sincerely,

JS

Dear ABCC - FOI,

Thank you for letting me know about the proposed consultation.

Yours sincerely,

JS

Dear ABCC - FOI,

Thank you for your decision and for providing information about review rights.

I request information about two issues.

First, by letter dated 3 November 2017 from ABCC FOI Section I was informed:

[Extended period to hold consultations

In conducting a search for documents that are relevant to your access request, it has become apparent that the ABCC will be required to consult relevant parties.

As a result, we write to inform you that it is appropriate for the processing period under section 15(5)(b) to be extended by a further 30 days pursuant to subsection 15(6)(a).]

In the ABCC decision letter dated 6 December I am informed:

[Section 15(6)(a) provides:
Extension of processing period to comply with requirements of section 26A, 27 or 27A

(6) Where, in relation to a request, the agency or Minister determines in writing that the requirements of section 26A, 27 or 27A make it appropriate to extend the period referred to in paragraph (5)(b):
(a) the period is extended by a further period of 30 days; and (b) the agency or Minister must, as soon as practicable, inform the applicant that the period has been so extended.

The letter communicated to you that the required further time arose because it was appropriate to consult relevant parties. Those consultations are now complete.]

The ABCC decision maker also writes:

[Under section 24A of the FOI Act access can be refused because, after taking all reasonable steps to find documents, the agency is satisfied that the documents cannot be found or do not exist.

As a result of the searches and inquiries undertaken, l have concluded that no documents exist that meet the description referred to in the FOI request. I am satisfied that the circumstances under section 24A of the FOI Act apply to the FOI request.

Accordingly, my decision is to refuse access under section 24A(1) of the FOI Act on the grounds that all reasonable steps have been taken to find the documents requested and I am satisfied that the documents do not exist.]

After I received the ABCC letter of 3 November I visited the OAIC website to ascertain what was involved in ‘consultation with relevant parties’. I copied the following paragraphs from the guidelines:

[Consultation with third parties
An agency should consult with a third party before deciding to grant access to a document, in the following circumstances:
• with a business or a person - if they are likely to contend that the document is exempt under the exemption for trade secrets and commercially valuable information, or under the conditional exemption for business, commercial, financial and professional affairs

• with a person - if they are likely to contend that the document is exempt under the conditional exemption for personal privacy

• with a State government - if the document requested (or information therein) originated with the State; the State is likely to contend that the document is exempt under the conditional exemption for Commonwealth-State relations; and a consultation arrangement has been entered into between the Commonwealth and the State

• with a foreign government or organisation - if disclosure of the document could damage the Commonwealth's international relations or would divulge information communicated in confidence by the foreign government or organisation.

In each case: the FOI processing period is extended by 30 days if the agency decides to undertake consultation; the FOI applicant must be notified that consultation is occurring; and the third party will not generally be told the applicant's name, unless the applicant agrees or the name is disclosed in a subsequent review of the agency's decision. However, other aspects of the consultation procedure differ in each case.]

Having read the guidelines I assumed (wrongly as it turns out) that the ABCC was consulting with relevant third parties about a document or documents. Clearly that was not the case. In my opinion the OAIC Guidelines are deficient in that the guidelines make no reference to consultation with relevant third parties in circumstances where relevant documents have not been identified or located. I propose to raise the issue with OAIC and would be grateful if the ABCC would provide me with:
(a) Details of the circumstances that made it apparent that the ABCC was required to consult relevant parties.
(b) In the absence of relevant documents, the criteria used to select relevant third parties to consult
(c) An outline of the consultation that took place given the absence of relevant documents (I do not seek information about the identities of the third parties who were consulted.)

On the second matter, on 7 October 2017 I made a request for access to documents to the Department of Employment who subsequently advised me that my FOI request had been transferred to the ABCC pursuant to section 16. I have received no information on the status of that FOI application.

Yours sincerely,

JS