Attachment A
If you would like to discuss this further, please contact me on s22
.
Yours sincerely
John Reid PSM
First Assistant Secretary
Government Division
July 2021
3
Attachment A
Attachment A
Section 89L of the FOI Act sets out the grounds on which a declaration can be made:
(1) The Information Commissioner may make a vexatious applicant declaration in relation
to a person only if the Information Commissioner is satisfied of any of the
following:
(a) that:
(i) the person has repeatedly engaged in access actions; and
(ii) the repeated engagement involves an abuse of the process for the
access action;
(b) a particular access action in which the person engages involves, or would
involve, an abuse of the process for that access action;
(c) a particular access action in which the person engages would be manifestly
unreasonable.
(2) A person engages in an access action if the person does any of the following:
(a) makes a request;
(b) makes an application under section 48;
(c) makes an application for internal review;
(d) makes an IC review application.
(3) The Information Commissioner must not make a declaration in relation to a
person without giving the person an opportunity to make written or oral
submissions.
(4) In this section:
abuse of the process for an access action includes, but is not limited to, the
following:
(a) harassing or intimidating an individual or an employee of an agency;
(b) unreasonably interfering with the operations of an agency;
(c) seeking to use the Act for the purpose of circumventing restrictions on
access to a document (or documents) imposed by a court.
Section 89M of the FOI Act sets out the effect of such a declaration:
(1) A vexatious applicant declaration has effect in accordance with the terms and
conditions stated in the declaration.
(2) Without limiting subsection (1), a vexatious applicant declaration in
relation to a person may provide that:
(a) an agency or Minister may refuse to consider any of the following if
made by the person without the written permission of the
Information Commissioner:
(i) a request;
(ii) an application under section 48 (amendment of records);
(iii) an application for internal review; and
(b) the Information Commissioner may refuse to consider an IC review
application made by the person.
4
Attachment A
(3) If a decision is made as mentioned in subsection (2), the agency, Minister
or the Information Commissioner (as the case requires) must, as soon as
practicable, notify the vexatious applicant of the decision.
5
Attachment B
Timeline of contact with s47F
or persons lobbying on his behalf
for him to be awarded the Humanitarian Overseas Service - 2010 to 2020
11 November 2010
s47F
wrote to the then Prime Minister, the Hon Kevin Rudd, to seek his support to have his
service as a protection staff for AusAid officials in Iraq by the Humanitarian Overseas Service Medal
(HOSM).
18 November 2010
PM&C (Peter Rush) responded on behalf of the Prime Minister that AusAid is not a specified
organisation and if he applied it would be based on merit. The organisation he was contracted to
Control Risks Group (CRG) is not eligible for the award of the HOSM for service in Iraq.
13 December 2010
Letters of support from AusAID provided to PM&C in support of s47F
security services
provided to AusAID staff as a contractor.
15 February 2011
s47F
wrote the PM&C to request consideration of his application form for the HOSM for his
service in Iraq. Attachments include letters of support from AusAID.
20 June 2011
s47F
sent another application form for the HOSM claiming he was not engaged as a
commercial contractor but as a contracted staff member of AusAID similar to another individual
engaged with Sagric International who he asserts received the HOSM for service in Iraq.
22 April 2013
Adam Bandt wrote to the Parliamentary Secretary to the Prime Minister (PSPM) on behalf of s47F
requesting he consider the proposal to extend eligibility of the HOSM to commercial
contractors of AusAID.
27 May 2013
PSPM replied to Mr Bandt advising he would seek the Minister for Foreign Affairs views. A letter was
also sent to Minister for Foreign Affairs seeking his view on s47F
proposal.
26 June 2013
The Minister for Foreign Affairs responded to the PSPM advising that the security services provided
by
s47F
and CRG were essential in support of AusAID to field civilian aid. While there is
reference to a commercial organisation providing humanitarian aid being a supported precedent,
there is no mention of direct not-for-profit humanitarian aid to the civilian population by CRG.
4 August 2013
The Prime Minister calls the election which places the Government in to caretaker mode.
20 September 2013
Fol owing the outcome of the election, Adam Bandt again wrote to the new PSPM seeking an update
to the proposal. He also requested that the PSPM provide any briefing from PM&C in regards to this
matter.
1
Attachment B
22 October 2013
PM&C sent a letter to s47F
informing him that he remains ineligible for the HOSM for his
security services in Iraq as a commercial contractor. He was also advised that the responsible
minister has decided not to recommend any changes to the eligibility criteria in this case. A copy of
this letter was sent to AusAID/DFAT for their information.
4 December 2013
The PSPM wrote to Adam Bandt advising that he would not be recommending any changes to the
eligibility criteria to the Iraq declaration for the HOSM. The PSPM advised it is not standard practice
to provide PM&C briefing with their response, however, Mr Bandt would be welcome to request this
information under Freedom of Information (FOI).
6 June 2017
Senator Skye Kakoschke-Moore wrote to the Minister for Foreign Affairs seeking support for the
HOSM eligibility to be extended to CRG for service in Iraq. The correspondence was referred to the
Prime Minister’s portfolio for response. The Minister responsible for Australian honours policy
because the Assistant Minister to the Prime Minister (AMPM).
6 September 2017
The AMPM responded to Senator Skye-Kakoschke-Moore advising that CRG was contracted to
provide security services to the Australian contingent and was not engage to directly provide
humanitarian services.
16 September 2019 to 23 October 2019
s47F
contacts PM&C to seek advice about the Australian honours system and the creation of
the HOSM. Various exchanges to answer his administrative questions occur
10 October 2019
s47F
contacts the new Minister for Foreign Affairs to seek support again for CRG to be
awarded the HOSM for their security service in Iraq. This correspondence is later referred to the
Prime Minister’s portfolio for consideration and response.
29 November 2019
PM&C responded tos47F
advising him that CRG is not an eligible group for the purposes of
the HOSM as a commercial contractor to AusAID that was paid to provide security service in support
of operations in Iraq
28 October 2019
s47F
contacts Mr Andrew Hastie MP to seek assistance in advocating for CRG to be awarded
the HOSM for their security service in Iraq. This correspondence is later referred to the Prime
Minister’s portfolio for consideration and response.
13 December 2019
s47F
contacts PM&C to seek advice regarding an avenue of external review for consideration
of extending the HOSM to members of CRG for their security services provided to AusAID in Iraq.
2
Attachment B
3 May 2020
The AMPM responded that CRG is not an eligible group for the purposes of the HOSM as a
commercial contractor to AusAID that was paid to provide security service in support of operations
in Iraq. He also advised he is not recommending changes for a medal that recognises members of
not-for-profit organisations providing emergency humanitarian aid.
27 May 2020
A friend of s47F
wrote to the AMPM to advocate on behalf of s47F
and CRG for adding
CRG to the HOSM eligible groups for service in Iraq. This individual did receive the HOSM for service
as a part of an eligible organisation.
17 June 2020
The AMPM responded advising that he has no intention of recommending the extension of eligibility
for the HOSM to CRG for providing security services to the Australian contingent to Iraq.
12 October 2020
s47F
contacts PM&C to request access to the PM&C Secretary's instrument of delegation
relating to the HOSM. The delegation is to treat a period of service as eligible service and
recommend the award of the Medal
3
Attachment A
First Assistant Secretary
Government Division
July 2021
3
Document 4
Happy to discuss
Petra Gartmann | Assistant Secretary
Legal Policy Branch
Government Division | Department of the Prime Minister and Cabinet
p s22
| w. www.pmc.gov.au
One National Circuit Barton ACT 2600 | PO Box 6500 CANBERRA ACT 2600
2
Attachment A
Attachment A
Attachment A
Attachment A
Document 6
2
Document 7
favourable material evidence was witheld from us. Other disclosures show some of the department’s advice is based
on unsubstantiated personal assertions some of which are very unreasonable. This is not an exhaustive list.
We believe public scrutiny is very reasonable given the information revealed via FOI. We respectfully contend our
FOI requests reveal very significant deficits in the department’s HOSM assessments and related advice to
government. They also reveal what appear to be very significant procedural fairness breaches. From what we
understand the public is generally entitled to scrutinise and challenge government decisions that affect them.
We will welcome the opportunity to defend our position with the Information Commissioner.
Thank you for your time and consideration.
Kind regards
s47F
2
Attachment A
Response to PM&C notice of intent to consider
vexatious declaration application proceedings
1 August 2021
Mr Reid
1st Assistant Secretary
Govt Div - PM&C
Response to notice of intent to consider vexatious declaration application proceedings
Dear Mr Reid,
1. I do not waive my right to request information in accordance with the FOI Act. You imply my requests
are vexatious. FOI reveals significant deficits in your department’s administrative decision-making in
2004, 2009, 2012, 2013 and more recently. Your department denies external review requests. Public
scrutiny is warranted. As is external review of your department’s administrative decision-making. I
respectfully ask you to expedite your vexatious declaration application. Alternatively I ask you refer
the matter to another authority for external review.
2. The root cause at issue occurred in 2004, before the HOSM Declaration for Iraq was drafted. Your
department’s duties included administrative decision-making in accordance with procedural fairness;
providing comprehensive HOSM related advice to government; and undertaking thorough
stakeholder engagement, consultations and assessments. FOI reveals your department failed to
consult the Australian Agency for International Development (AusAID) or CRG. Both relevant
organisations participating in the government’s relief operation. Your department failed to accord
relevant stakeholders their right to present submissions. Your department failed to advise
government on matters related to HOSM regulation 4(1)(b); Regulation 4(2); and Regulation 4(3)(c).
They failed to identify and advise government on commercial contractors serving with the Australian
contingent to the CPA. Your department held legislative responsibility to comprehensively advise
government. AusAID, CRG, DFAT, and the Iraq Task Force did not. Your department advises
government that their work is without fault, FOI reveals otherwise.
3. I refute your allegation that I had “
unauthorised access” to documents. This is untrue and defamatory.
I respectfully ask you to retract the allegation, amend documents as required and inform me if your
department has made similar allegations about me to other stakeholders. I request remedy if this has
occurred. AusAID was an independent statutory government agency. They are responsible for their
actions. They exercised discretion and released unclassified documents to me. If you have issue it is
appropriate you take it up with them.
4. You allege “
unauthorised access”. Documentary evidence shows a government agency released
unclassified documents to me and asked for my input into a deliberative process. I reviewed
unclassified documents in the days before the documents were agreed to be sent to the
Parliamentary Secretary to the Prime Minister the Hon. Senator Jan McLucas. Relevantly PSPM
McLucas was the only person with the prescribed authority to decide on the matters raised in the
documents.
5. I refute your implication that we did not provide humanitarian service. HOSM regulation Part 1 (2)
state “
humanitarian service means giving immediate remedy or action to assist needy or distressed
persons in order to sustain the life and dignity of those persons”. The Letters Patent states “
for the
purpose of according recognition to persons who have given humanitarian service in hazardous
of
1 3
Attachment A
Response to PM&C notice of intent to consider
vexatious declaration application proceedings
circumstances outside Australia”. Two Australian Foreign Ministers, AusAID’s Director General and
Deputy Director General, medal holders from the contingent in Iraq and your department agreed.
FOI reveals your department may have reversed course on unsubstantiated and misleading
assumptions. The HOSM Regulations govern the medal. They do not prohibit the medal being
awarded to commercial contractors. Your department failed to comprehensively advise government
before the 2004 HOSM Declaration for Iraq was drafted.
6. FOI reveals your department broke their agreement with AusAID. They withheld documents from
PSPM McLucas in early 2012. Your letter implies this occurred 12 months later in 2013. Relevantly
your department failed to inform AusAID of the reversal in agreement. Mr Rush recently stated “
the
matter continued to be the subject of consultations and deliberations were not finalised as at the date
the Hon Jan McLucas ceased in the role of PSPM”. You state your department was engaged on this
from 2010 to 2012. The documentary evidence shows your department undertook requisite
consultations and deliberations before the documents for PSPM McLucas were prepared in early
2012. FOI reveals Mr Rush’s statements were sometimes unsubstantiated and misleading. It appears
in the public interest to request information to verify consultations and deliberations occurring during
PSPM McLucas’s tenure.
7. You refer to your department’s 26 September 2013 brief as evidence. Your department produced this
document around 18 months after they agreed to submit documents recommending PSPM McLucas
agree to extend the HOSM to CRG. The 2013 assessment is sub-standard. Your department fought to
withhold information from the public but were compelled to release via internal and IC review. FOI
reveals the assessment is biased, unfair and omits material facts. Reasoning is sometimes premised
on unsubstantiated and manifestly unreasonable assumptions. Your department presented pages
and pages of nonsensical documents as evidence for no apparent reason.
8. The Statement of Ministerial Standards states “
Ministers must be able to demonstrate that they have
taken all reasonable steps to observe relevant standards of procedural fairness and good decision
making application to decision made by them… Ministers are required to ensure that official decisions
made by them are unaffected by bias or irrelevant considerations”. The Law Reform Commission
“
procedural fairness means acting fairly in administrative decision making. It relates to the fairness of
the procedure by which a decision is made”. The High Court “
in the absence of a clear, contrary
legislative intention administrative decision-makers must accord procedural fairness to those affected
by their decisions. The duty may be excluded by legislation. The HOSM letters patent, regulations
and declaration do not appear to do this. Please provide the instrument that excludes your
department from the duty to accord procedural fairness in administrative decision-making.
9. Regarding your department’s 2009 assessment “
Ref: B09/1640”. FOI reveals the assessment is
manifestly different to other credible published documents. Relevantly your department failed to
advise government that GE’s contingent included commercial security contractors. I informed Mr
Rush of this in 2010/12. The precedent is cited in the documents prepared for PSPM McLucas. I
respectfully ask you to acknowledge this. Then advise government that commercial security
contractors were among the persons awarded the HOSM in the GE precedent.
of
2 3
Attachment A
Response to PM&C notice of intent to consider
vexatious declaration application proceedings
10. Referring to the efficacy of your department’s assessment Mr Rush states “
The authoritative
confirmation of an applicant’s claims by the organisation with which the applicant served provides a
robust assessment process and enhances the integrity of the HOSM”. Your department states
commercial security contractors are unworthy for HOSM recognition. Somehow your department
failed to advise government that GE’s contingent included commercial security contractors. This
brings into question your department’s “
robust assessment process” and “
integrity of the HOSM”
assessments.
11. Thank you for your letter. Again I ask you to retract your allegation that I received “
unauthorised
documents”. It is untrue and unsubstantiated. Your implication that my FOI requests are vexatious is
without merit. FOI reveals significant deficits in your department’s administrative decision-making in
2004, 2009, 2012, 2013 and more recently. Please provide the instrument that excludes your
department from their duty to accord procedural fairness in their administrative decision-making.
Public scrutiny and external review is clearly warranted. Again I ask you to expedite your vexatious
applicant declaration application or refer the matter to another authority for external review.
Thank you for your time.
Kind regards
s47F
cc
Federal Representatives
Federal opposition
of
3 3
‐‐‐‐‐Original Message‐‐‐‐‐
From: FOI <xxx@xxx.xxx.xx>
Sent: Monday, 13 September 2021 8:28 PM
To: Reid, John s22
Cc: Gartmann, Petra s22
Rush, Peter
s22
Subject: s47F
2021/159 ‐ Reply to notice of intent to consider a vexatious declaration application [SEC=OFFICIAL]
OFFICIAL
Dear s4
7F
Please see below a follow‐up inquiry from s47F (received today) requesting a response to his letter of 1 August
2021 (attached) responding to your letter of 28 July 2021 advising that PM&C were considering having him declared
a vexatious applicant.
Thanks s22
Dear FOI,
On 28 July 2021, your department served me with a notice of intent to consider vexation declaration proceedings
with the Information Commissioner.
On 1 August 2021, I refuted Mr Reid’s unsubstantiated allegation and implications. I noted a number very significant
errors in your department’s administrative decision‐making relating to the HOSM. Relevantly I respectfully asked
your department to acknowledge and inform Government of a number of procedural fairness breaches and errors in
HOSM assessments.
Please confirm receipt of my rebuttal and issue the response letter when ready.
Thank you for your time.
Kind regards
s47F
> On 1 Aug 2021, at 21:10, s47F
> wrote:
>
> Dear FOI,
>
> Please see attached letter.
>
> I will be grateful if you will pass to Mr Reid. Can I ask you confirm it’s receipt.
>
> Thank you for your time.
>
> Kind regards
>
>s47F
>
>
>
>
2
