Dear Australian Public Service Commission,

I refer to the FOI request made of the APSC as set out here: https://www.righttoknow.org.au/request/h...

Under the FOI Act, I seek access to similar information. Specifically, I seek copies of email correspondence between Mr John Lloyd (in his capacity as Public Service Commissioner or otherwise), and Mr Nigel Hadgkiss (in his capacity as Australian Building and Construction Commissioner or otherwise), from 1 January 2015, onwards.

I am willing to agree to the personal information of any third party individuals or information relating to any third party organisations to be redacted from any relevant document.

Further, I am willing to exclude from the scope of my request:

- any document attached to any relevant email; and
- all but the last email in email chains/threads (but only on the basis that the preceding emails in those email chains will be included in the last email of those email chains).

It is relevant to note that on 29 September 207, the Federal Court found that Mr Nigel Hadgkiss, in his capacity as Director of the Fair Work Building Inspectorate, recklessly contravened the Fair Work Act 2009, being the same legislation that Mr Hadgkiss was paid significant taxpayer funds to uphold, administer and enforce. It is notable that Mr Hadgkiss’ illegal conduct took place in December 2013, just two months after he was appointed to his statutory position by Senator Eric Abetz and that Mr Hadgkiss' colleagues took no action to report or address Mr Hadgkiss' illegal conduct.

It is also relevant to note that on 7 August 2018, the Merit Protection Commissioner found, pursuant to paragraph 50(1)(b) of the Public Service Act 1999, that Mr John Lloyd acted illegally in public office by contravening subsection 13(11) of the Public Service Act 1999, being the same legislation that Mr Lloyd was paid approximately $700,000 of public funds annually to uphold, administer and enforce. It is notable that Mr Lloyd’s illegal conduct took place in April 2015, just four months after he was appointed to his statutory position by Senator Eric Abetz and that Mr Lloyd's colleagues took no action to report or address Mr Lloyd's illegal conduct.

I note that the APSC has, in its processing of the FOI request here: https://www.righttoknow.org.au/request/h... already searched for, and identified, 57 documents relevant to my request totalling 132 pages. The further narrowing of the scope of my request (by excluding email attachments and duplicate documents) will have the effect of substantially reducing the document and page numbers concerned. I further note that, as advised by the APSC’ FOI Coordinator (see the APSC’s correspondence dated 9 August 2018 here: https://www.righttoknow.org.au/request/h...), the APSC has already undertaken third party consultation in respect of the documents at issue.

There is a clearly a wide public interest in the content of communications between two former public servants who:
- are close personal friends;
- share the same political and ideological affiliations; and
- have both been independently found to have acted illegally in public office including by contravening the very same laws (only a short period after they were appointed to their positions) that they were paid huge publicly-funded salaries to uphold, administer and enforce – thereby disgracing themselves, and in the process, substantively damaging the integrity of the entirety of the Australian Public Service.

The wide public interest in the documents the subject of my request abounds not least because those communications will, having regard to the character of these persons and their apparent willingness to engage in illegal conduct, invariably detail further misconduct engaged in by these individuals while in public office and while in receipt of large sums of public monies. These documents will also detail the level of improper involvement Mr Lloyd had in the operational management of an independent Government agency that he was not working for. Accordingly, the release of the documents the subject of my request is overwhelmingly likely to reveal or substantiate that Mr Lloyd and Mr Hadgkiss have further engaged in improper or unlawful conduct while in public office.

Thanks

Dear Ms Crosthwaite

I am responding to your letter of 24 October 2018 advising me that you have decided that I am liable to pay a charge of $202.94 for the processing of my FOI request dated 13 October 2018.

I contend that charge should not be imposed because the giving of the documents in question is in the general public interest or in the interest of a substantial section of the public and the charge has been wrongly assessed. My submissions follow.

The documents are in the public interest or in the interest of a substantial section of the public.

(1) As indicated in my request:

“On 29 September 2017, the Federal Court found that Mr Nigel Hadgkiss, in his capacity as Director of the Fair Work Building Inspectorate, recklessly contravened the Fair Work Act 2009, being the same legislation that Mr Hadgkiss was paid significant taxpayer funds to uphold, administer and enforce. It is notable that Mr Hadgkiss’ illegal conduct took place in December 2013, just two months after he was appointed to his statutory position by Senator Eric Abetz and that Mr Hadgkiss' colleagues took no action to report or address Mr Hadgkiss' illegal conduct.

It is also relevant to note that on 7 August 2018, the Merit Protection Commissioner found, pursuant to paragraph 50(1)(b) of the Public Service Act 1999, that Mr John Lloyd acted illegally in public office by contravening subsection 13(11) of the Public Service Act 1999, being the same legislation that Mr Lloyd was paid approximately $700,000 of public funds annually to uphold, administer and enforce. It is notable that Mr Lloyd’s illegal conduct took place in April 2015, just four months after he was appointed to his statutory position by Senator Eric Abetz and that Mr Lloyd's colleagues took no action to report or address Mr Lloyd's illegal conduct.”

(2) It is a very rare occurrence for a Commonwealth statutory officer to be formally found to have acted illegally in public office, let alone for breaking the very same laws they were tasked with administering. Yet those are the independent findings made in respect of Mr Nigel Hadgkiss (by the Federal Court) and Mr John Lloyd (by the Merit Protection Commissioner), within a year of each other.

(3) It is relevant that in the case of the illegal activities engaged in by Nigel Hadgkiss and John Lloyd, that the executive groups at Fair Work/ABCC and the APSC, despite being privy to the illegal conduct engaged in by Mr Hadgkiss and Mr Lloyd, took no action to address or report that illegal conduct – notwithstanding the clear legal obligation imposed on those executives by paragraph 1.3(f) of the Australian Public Service Commissioner's Directions 2013 and subsequently of paragraph 14(f) of the Australian Public Service Commissioner's Directions 2016 (which revoked and replaced the 2013 Directions)). Because those executives decided to take no action to report the illegal conduct of those two statutory appointees, it was left to third party members of the public to identify and report the illegal conduct engaged in by Mr Hadgkiss and Mr Lloyd.

(4) Mr Hadgkiss’ illegal conduct took place just two months after he was appointed to his role and Mr Lloyd’s illegal conduct took place just four months after his appointment. Because the illegal conduct engaged in by these individuals was only actioned years after it took place, Mr Hadgkiss received approximately $1.5 million in public funds (as salary) after he engaged in the illegal conduct that ultimately forced his resignation, and Mr Lloyd received over $2 million in public funds (as salary) after he engaged in the illegal conduct that ultimately forced his resignation.

(5) Mr Hadgkiss and Mr Lloyd are political appointees who, for whatever reason, did not possess the requisite professional integrity to carry out their highly remunerated (and publicly funded) public functions and duties without breaking the law.

(6) It is no coincidence that Mr Hadgkiss and Mr Lloyd are close personal friends who are both closely affiliated with far right wing political lobby group, the Institute of Public Affairs and the Liberal Party and who were both appointed by Senator Eric Abetz without merit based selection processes: https://www.theaustralian.com.au/news/in....

(7) Given:

• the evidenced willingness of Mr Hadgkiss and Mr Lloyd to engage in illegal conduct while in public office (as evidenced by the fact that they both were found to have acted illegally within only a short period of time after taking office) apparently without fear of consequence ;
• the abject failure of Mr Hadgkiss’ and Mr Lloyd’s executive colleagues to comply with their legal obligation to report Mr Lloyd’s and Mr Hadgkiss’ illegal activity in a timely manner; and
• that the illegal conduct engaged in by both men had its basis, at least in part, in the closely held political beliefs and affiliations of both men;

it is highly likely that the documents the subject of my request will disclose further misconduct engaged in by these individuals.

The identification and disclosure of misconduct engaged in by highly remunerated statutory officers is in the public interest as well as in the interest of a substantial section of the public.

The charge has been wrongly assessed.

(8) My FOI request of 13 October 2018, followed a request made in similar terms on 21 July 2018, set out here: https://www.righttoknow.org.au/request/h... (the “July request”).

(9) In your response to the July request: https://www.righttoknow.org.au/request/4... - you decided that the applicant was liable to pay a charge of $425.14 relating to 57 documents comprising a total of 132 pages and that formal consultation was conducted (pursuant to section 27 of the FOI Act) with two parties.

(10) However, in arriving at that preliminary charge, and despite the requirements of item 5 of the table in Part 1 of the Schedule to the Freedom of Information (Charges) Regulations 1982, you did not reduce the amount of that charge by 5 hours/$100 (cf. your response to my request here: https://www.righttoknow.org.au/request/4... where you clearly identify in paragraphs 2 and 5, that the first five hours of decision maker time are free of charge). Accordingly, the preliminary charge you imposed in respect of the July request, should have been, at most, $325.14.

(11) While similar, my request was of a significantly narrower scope than that of the July request in that it excluded: i) any document attached to a relevant email, and ii) all but the last email in email chains/threads. It also noted that third party consultation had already been conducted in relation to relevant documents.

(12) Your decision letter of 24 October 2018 confirmed the effect of the narrowed request – there were now only 84 relevant pages (as opposed to 132) and you acknowledged that third party consultation would not be required. But somehow, the preliminarily assessed charge was still disproportionately substantial at $202.94.

(13) Notably, you have assessed the decision-making time in respect of the 84 pages of relevant documentation to be $295.67 (or approximately 15 hours worth of decision-making time). It has generally been accepted that between 30 seconds per page (See 'FF' and Australian Taxation Office [2015] AICmr 25 [23]) to five minutes per page (See 'EU' and Department of Human Services [2015] AICmr 15 [52]) is a reasonable estimate of the time required for an agency to assess, edit and make decisions on documents. Also, the FOI Guidelines explain that any charges imposed under the FOI Act must be fair, accurate and should not be used to unreasonably hinder an applicant from pursuing an FOI request.

(14) Even if the APSC took the upper limit of 5 minutes of decision-making time per relevant page, the aggregate decision-making time for 84 pages would be 7 hours, and not 15 hours you have estimated. In all likelihood, given that the documents at issue are unlikely to be overly complex, it would take the APSC far less than 5 minutes to make decisions in respect of each of the 84 pages at issue, meaning the decision-making time would likely be closer to 3 hours.

(15) I am of the view that you have incorrectly assessed the charge set out in your letter to me of 24 October 2018 with a view to hindering public access to documents that are clearly in the public interest because they are likely to disclose further misconduct engaged in by the former Public Service Commissioner and the former Australian Building and Construction Commissioner.

Conflict of interest

(16) The APSC provides a range of guidance material in respect of public servants’ legal obligations. I refer you to the guidance material provided here: https://www.apsc.gov.au/section-9-report... and note the following statements:

“9.1.4 APS employees have a responsibility to report misconduct, and not to turn a blind eye to unacceptable behaviour.
[…]
9.2.1 Clause 1.3(f) of the Australian Public Service Commissioner's Directions 2013 (the Directions) 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.” [the APSC should update this material such that it refers to the Australian Public Service Commissioner's Directions 2016 which revoked and replaced the 2013 Directions].

(17) As an executive Group Manager at the APSC, you were aware of Mr Lloyd’s illegal conduct in public office, not least because:

• as a senior executive at the APSC at the relevant time and as the APSC’s Group Manager responsible for the APSC’s FOI processing function, you would have been aware of the contents of the documents released in July 2017 in response to this FOI request: https://www.righttoknow.org.au/request/i... that go to Mr Lloyd’s illegal conduct in public office; and
• you were present, alongside Mr Lloyd, at Senate Estimates in October 2017 when Parliament first raised the issue of Mr Lloyd’s illegal conduct in public office.

(18) Despite having knowledge of Mr Lloyd’s misconduct, I aware you took no steps to report or otherwise address Mr Lloyd’s misconduct (as required by paragraph 14(f) of the Australian Public Service Commissioner's Directions 2016). Given your role at the APSC and your knowledge of the Public Service Act 1999 and the Public Interest Disclosure Act 2013, reasonable steps taken in compliance with your obligation to report and address misconduct in the circumstances would have taken the form of a complaint made to the Merit Protection Commissioner about Mr Lloyd’s conduct such that that conduct could be inquired into pursuant to paragraph 50(1)(b) of the Public Service Act 1999, or otherwise the making of a public interest disclosure to the Commonwealth Ombudsman pursuant to the Public Interest Disclosure Act 2013. But you did not take those steps.

(19) In such circumstances I am concerned that your dealings with my FOI request (which goes to Mr Lloyd’s misconduct in public office) is tainted by a conflict of interest. If dealt with in accordance with the requirements of subsection 13(7) of the Public Service Act 1999, I am of the view that you should have managed this conflict by recusing yourself from making decisions in relation to my FOI request. Noting that most authorised decision-makers at the APSC are in a similar situation, I request that any further decisions taken by the APSC in relation to my FOI request be made by the Public Service Commissioner or the Deputy Public Service Commissioner (noting that those authorised decision-makers joined the APSC after John Lloyd’s resignation and could not readily be said to have a conflict of interest in relation to my request).

Regards
D Watson

Dear FOI,

Thank you for your email.

I’m writing to clarify the due date and to add to my submissions of 22 November 2018.

You’ve indicated that the due date for the charges review decision is 29 December 2018. However, by my calculations, the due date is 24 December 2018 (the 30th day is a Saturday). Could you please clarify?

Noting that the APSC has accepted there is public interest in the documents the subject of my request (misconduct and corruption in the public service is clearly in the public interest and is particularly topical at the moment), I refer you to paragraphs 4.74 and 4.86 of the FOI Guidelines which have not been adhered to by the APSC thus far. Paragraphs 4.74 and 4.86 provide state:

“4.74 An agency or minister may waive a charge wholly or in part, but where the charge is only partially waived, it should fully explain and justify the reduced charge. If an agency or minister accepts that disclosure of a document would be in the general public interest […], it may be difficult for it to justify why a charge has been reduced instead of waived in full….

4.86 Where an agency accepts that giving access to the document in question would be in the general public interest, but decides not to waive the charge, the agency should adequately justify why it is appropriate for the charge to be imposed in the circumstances. The agency or minister should also consider whether the imposition of the charge would be at odds with the lowest reasonable cost objective in s 3..”

Regards

D Watson

Dear FOI,

The full amount of the charge has been paid into the APSC's nominated account.

Yours sincerely,

D Watson

Dear FOI,

Thank you for your email.

I am writing to dispute the APSC’s decision to invoke the application of section 27A of the FOI Act in relation to my request. I am of the view that decision has been made in error because the APSC has already consulted on the documents the subject of my request pursuant to section 27A of the FOI Act and the FOI Act does not permit an agency to apply section 27A on more than one occasion in relation to the same documents.

My FOI application made of the APSC on 13 October 2018 stated as follows:

“I note that the APSC has, in its processing of the FOI request here https://www.righttoknow.org.au/request/h... already searched for, and identified, 57 documents relevant to my request totalling 132 pages. The further narrowing of the scope of my request (by excluding email attachments and duplicate documents) will have the effect of substantially reducing the document and page numbers concerned. I further note that, as advised by the APSC’ FOI Coordinator (see the APSC’s correspondence dated 9 August 2018 here: https://www.righttoknow.org.au/request/h..., the APSC has already undertaken third party consultation in respect of the documents at issue.”

That third party consultation had already been undertaken (and the associated extension of time already having been claimed by the APSC) in respect of the documents the subject of my request is evidenced by the following:
- Ms Tulloch’s email to the applicant of 8 and 9 August 2018 here: https://www.righttoknow.org.au/request/h...
- Ms Crossthwaite’s notice issued under s.29 of the FOI Act here on 28 August 2018 here: https://www.righttoknow.org.au/request/4... which refers to the formal consultation required with two parties noting that Ms Crossthwaite’s notice was issued at a time more than 30 days after the relevant request was received and therefore in reliance on the additional 30 days claimed pursuant to Ms Tulloch’s emails of 8 and 9 August 2018 above; and
- the notices issued under section 29(1) of the FOI Act by Kerren Crossthwaite (https://www.righttoknow.org.au/request/4... ) on 24 October 2018 and by Michelle Black on 19 December 2018 (https://www.righttoknow.org.au/request/4... ) in that both those notices did not include time and charges related to third party consultation in recognition that third party consultation had already been undertaken in respect of the documents the subject of my request.

One way in which this dispute can be resolved is by way of another FOI request, as follows.

(1) I refer to the APSC’s correspondence with the FOI applicant of 8 August 2018 here: https://www.righttoknow.org.au/request/h... which states “It has now been determined that it is necessary for the Commission to conduct formal consultation with affected third parties as required by section 27A of the FOI Act. As such, in accordance with section 15(6)(a) of the FOI Act, the processing time for responding to your request has been extended by 30 days.”

(2) Noting that the documents the subject of my request are but a smaller subset of the documents the subject of the FOI application here: https://www.righttoknow.org.au/request/h... if the APSC did, in fact, consult with affected third parties as it said it would, it will hold records of that consultation, and as such, further consultation is neither warranted, or permitted by law.

(3) Alternatively, if the APSC invoked section 27A of the FOI Act to consult with third parties in relation to the request here: https://www.righttoknow.org.au/request/h... but it did not, in fact, use the 30 day period provided for under ss.27A and 15(6) to actually conduct that consultation as it said it would and relied upon to issue the s.29 notice here: https://www.righttoknow.org.au/request/4... (some 38 days after the initiating FOI request was received), then there are questions to be answered in respect of relevant APSC staff members’ compliance with their obligations under the Public Service Act 1999.

(4) Under the FOI Act, I seek access to any and all documents prepared and sent by the APSC for the purpose of consulting with affected third parties pursuant to section 27A of the FOI Act in respect of the FOI application set out here: https://www.righttoknow.org.au/request/h...

(5) I agree to the personal information of any person who is not an APSC employee to be redacted from the relevant documents.

Noting the legal obligations that apply to me pursuant to paragraph 14(f) of the of the Australian Public Service Commissioner's Directions 2016 and section 10 of the Public Service Act 1999, could you please provide me with the name of the authoirsed decision-maker who decided to invoke the application of section 27A of the FOI Act (as notified to me on 6 February 2019). Please let me know if I will need to lodge an FOI application to obtain this information.

I, however, am willing to formally withdraw the new FOI application set out in this email upon receipt of written notification from the APSC that it withdraws its decision of 6 February 2019 to again consult third parties under section 27A of the FOI Act in relation to my FOI request of 13 October 2018 and that it will provide a decision on that request on or by 11 February 2019 as required by law.

Yours sincerely,

D Watson

Dear FOI,

Thank you for your email. I accept that the APSC’s preferred interpretation of s.27A of the FOI Act may be an available one. That said, I submit the following.

1) Any submissions provided by Nigel Hadgkiss or John Lloyd in relation to this matter should be tempered, and given commensurate weighting, according to the fact that both these men have independently been found to be corrupt.

2) The corruption engaged in by both those individuals was facilitated, at least in part, by the failure of management groups at the APSC and the ABCC to take action to report and address that corruption as required by subsection 10(2) of the Public Service Act 1999 and paragraph 14(f) of the Australian Public Service Commissioner's Directions 2016, presumably because it wasn’t in the personal, professional, political and commercial interests of those management groups to do so (indeed, management groups at both these agencies took active steps to conceal the corruption engaged in by both these men, including through their application of the FOI Act). Cf. APSC management’s decision to waste $10,000 to unsuccessfully identify and set the dogs on an APSC staff member who merely corrected a deliberate error of fact/lie perpetuated by the former Prime Minister and John Lloyd’s IPA/Liberal Party mate, Tony Abbott: https://www.smh.com.au/public-service/pu....

3) Any involvement by John Lloyd in the operational or strategic management of a supposedly “independent” statutory agency like the ABCC or its predecessor agency (beyond, for example, formalised participation in eg. recruitment panels) is outside the scope of functions of the Public Service Commissioner as prescribed by the Public Service Act 1999 and is therefore corrupt. Public servants have a legal obligation to bring to light, address and report corruption in the public service. There is currently a strong public interest in corruption in the public sector and the corrupt practices of disgraced public servants, John Lloyd and Nigel Hadgkiss, which were supported by the APSC’s/ABCC’s management groups, lends further support for current calls for a Federal Anti-Corruption Commission.

4) This Government’s tendency to appoint its corrupt Liberal Party/IPA mates to positions of public office on the basis of their political affiliation rather than on merit is:
- the antithesis of what the Public Service Act 1999 requires;
- symptomatic of the contempt with which this Government holds the APS; and
- demonstrative of the politicisation of the APS that has occurred under this Government’s watch and represents the actions of a Government whose philosophies and approach is more closely associated with that of totalitarian third world dictatorships, rather than democratically robust regimes.

Yours sincerely,
D Watson

Dear FOI,

Thank you for processing my application made under the FOI Act dated 13 October 2018 ('my FOI application').

Under the FOI Act, I seek access to any documents held by the APSC, that relate to my FOI application, and that were provided to, or received from:

- the Minister for the Public Service and/or his office;
- Senator Michaelia Cash and/or her office;
- the Australian Building and Construction Commission; and/or
- the Department of Employment.

Thank you.
D Watson

Thanks for your email.

I’m ok with you redacting the personal info of third parties except where that personal info is of public servants and that personal info is included because of their usual duties/responsibilities (see [6.152] onwards of the FOI guidelines) or the personal info is simply the name of a Minister.

Also, I’m happy to exclude documents that are already in the public domain (including because they were released as part of my earlier FOI request: C18/1974).

Cheers
D Watson

Dear Ms Seaberg

I refer to your decision of 12 March 2019 in respect of my request made of the APSC under the FOI Act dated 13 October 2018. Under Part VI of the FOI Act, I seek internal review of your access refusal decisions in respect of document #10 (folios 20-22), document #26 (folios 45-46) and document #32 (folios 55-61) for the reasons set out below.

As previously asked, I request that the review be conducted by a person who was not part of John Lloyd’s executive management team (noting those executives chose to turn a blind eye to, and actively conceal, John Lloyd’s illegal conduct in public office and accordingly, those officers should recuse themselves from any involvement in this matter).

In relation to documents #10 (folios 20-22) and #26 (folios 45-46) you have refused access to almost the entirety of those documents on the basis they contain communications to and from Minister Michaelia Cash and the supposedly independent statutory office of the ABCC that amount to deliberative matters/processes. Notably, you’ve stated that the communications concern the “strategies and priorities for the management of the ABCC”

I’m of the view that your access refusal in respect of those documents has been incorrectly made because:

- If the content of the documents contain deliberative matter that should be conditionally exempt, then that claim is belied by the fact that they were sent to John Lloyd, being the Australian Public Service Commissioner, whose statutory role (which does not fall within the employment portfolio) has absolutely nothing to do with the ABCC or the Department of Employment. Accordingly, that these documents were sent to John Lloyd is akin to those documents being sent to any other random public servant who has no legitimate or proper interest in them. That being so, if the documents are of a nature that they’re able to be forwarded to random public servants who have no legitimate or proper interest in them, then they’re not conditionally exempt and are amenable to public release.
- Your access refusal decision is also belied by the fact that the ABCC is supposedly an independent statutory agency that, if operated in accordance with the law, should not be subject to Ministerial/Departmental direction/pressure. Yet you’ve indicated that the contents of these documents contain instances of Minister Cash directing the ABCC in relation to the acquittal of its statutory functions. If that’s true, it’s not the first time Minister Cash has been involved in the potentially illegal direction of a supposedly independent statutory agency (see the current Federal Court litigation involving the Registered Organisations Commission). There’s clearly a public interest in the identification of illegal activity by Commonwealth Ministers particularly when the documents at issue concern the same misconduct engaged in the by same Minister currently being considered by the Federal Court.
- I’m also of the view that your claim that the matters contained in documents #10 and #26 relate to policies/decisions under current consideration is unfounded because the documents are almost 2.5 years old – given the effluxion of time, the change of leadership at the ABCC and the change of Minister, I dispute your claim that the documents relate to policies/decision under “current consideration”.
- I’m also concerned that you have identified public interest factor against disclosure as being disclosure will “restrict the flow of written communications between the Minister and Departments/agencies”, “adversely affect the interest in establishing a working and trusting relationship with a Minister” and “cause agency employees to feel constrained in providing comprehensive written briefings”. In response I refer you to relevant paras 6.82-6.83 of the FOI Guidelines which, in conflict with your reasoning, state:
“6.83 Agencies should start with the assumption that public servants are obliged by their position to provide robust and frank advice at all times and that obligation will not be diminished by transparency of government activities.

6.84 Public servants are expected to operate within a framework that encourages open access to information and recognises Government information as a national resource to be managed for public purposes (ss 3(3) and (4)). In particular, the FOI Act recognises that Australia’s democracy is strengthened when the public is empowered to participate in Government processes and scrutinise Government activities (s 3(2)). In this setting, transparency of the work of public servants should be the accepted operating environment and fears about a lessening of frank and candid advice correspondingly diminished.”

I’m concerned that you’ve refused access to the documents because they will tend to demonstrate misconduct engaged in by a Commonwealth Minister and others – matters of public interest that promote the objects of the FOI Act (see para 6.19 of the FOI Guidelines).

In relation to document #32 (folios 55-61), having regard to the dates of the correspondence, my suspicion is that the content of that document relates to Mr Hadgkiss’ illegal activity in public office. I note that both Mr Lloyd and Minister Cash made certain representations to the Senate concerning their knowledge of Mr Hadgkiss’ corrupt conduct including the time they became of certain conduct. Under the Parliamentary Privileges Act 1987, it is an offence to lie to the Senate – a crime punishable by 6 months imprisonment. There’s a clear public interest in identifying criminal activity engaged in by Ministers of the Crown and senior public servants.

I also note that you have redacted the entirety of document #32 on the basis the entirety of that document contains the personal information of any third party individuals or information relating to any third party organsiations. I contest your claim that it was necessary to redact the entirety of document #32 pursuant to s.22 of the FOI Act on the basis that the entirety of that document concerns the personal information of any third party individuals or information relating to any third party organisations.

I also note that those communications have a security categorisation of “Sensitive: Legal”. While you’ve not redacted the content of the document on the basis that the document is subject to legal professional privilege, any privilege that may have attached to the document was waived at least as soon as it was sent by Mr Hadgkiss to Mr Lloyd.

I’m of the view that you have refused access to the contents of document #32 (folios 55-61) because they will tend to demonstrate misconduct engaged in by a Commonwealth Minister and others – being matters of public interest that promote the objects of the FOI Act (see 6.19 of the FOI Guidelines).

Lastly, I note that the documents that were released by the APSC in response to my request include partisan political commentary between two agency heads who were subject to the requirements of the Public Service Act/APS Code/Values. Michelle Black, of your office, advised in her letter to me received on 24 December 2018, that the content of communications between Mr Hadgkiss and Mr Lloyd the subject of my FOI request constitute “benign email correspondence” and are “not relevant to the general subject matter of corruption” (noting that corruption must include illegal activity under the Public Service Act). Noting the APSC’s role in providing ethical guidance to the APS including in respect of compliance with the APS Code/Values, in the absence of any additional information provided by the APSC, I take, and any other member of the APS is entitled to take, Ms Black’s comments to be representative of the APSC’s official position that the partisan political communications between Mr Hadgkiss and Mr Lloyd facilitated by tax payer funded resources as set out in the documents released by the APSC in response to my request do not constitute a breach of the APS Code/Values (notwithstanding that APSC published guidance materials relating to the APS Code/Values state otherwise) and any similar activity engaged in by any other person subject to the requirements of the APS Code/Values will not, and should not, be subject to sanction of any kind.

Yours sincerely,

D Watson

Dear FOI,

Thank you for your email.

In response, payment came from ME Bank with reference “FOI”.

I would prefer not to provide any further identifying information.

I request that you direct the money the APSC owes me to the publishers of this righttoknow.org website – the OpenAustralia Foundation. OpenAustralia’s account details can be found here: https://www.oaf.org.au/donate/alternativ....

Regards

D Watson