Our Ref
LEX 390
BE
Right to Know
By email:
xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear BE
Your Freedom of Information request - consultation
I refer to your request, received by the Department of Employment and Workplace Relations
(department) on 8 August 2022, for access under the
Freedom of Information Act 1982 (FOI
Act) to the fol owing documents:
1. All documents including advice and submissions provided by the Department to
the Minister’s Office in relation to Australian Building and Construction
Commission (ABCC), the Code for the Tendering and Performance of Building
Work 2016 (Building Code) or the Code for the Tendering and Performance of
Building Work Amendment Instrument 2022 (Amended Building Code).
2. Communication between the Department and the Minister’s Office in relation to
the ABCC or the Building Code or Amended Building Code during the period 1
June 2022 to 25 July 2022.
3. Internal communication within the Department between 1 June 2022 and 25 July
2022 relating to the ABCC or the Building Code or the Amended Building Code.
In this request a reference to the Minister’s Office includes a reference to the
Minister and a reference to communication includes emails, correspondence,
electronic messages (eg whatsapp, signal etc), meeting invites, and other forms of
communication.
Names and contact details for departmental staff below the SES level are not
required and can be treated as irrelevant under s22 of the Act for the purposes of this
request.
Duplicates of documents are not required.
GPO Box 9828, Canberra ACT 2601 | Phone 1300 488 064 | dewr.gov.au | ABN 96 584 957 427
Practical refusal reason
I am writing to you, under sections 24AA(1)(a)(i), 24AA(2) and 24 of the FOI Act, to notify
that processing your request in its current form would substantially and unreasonably divert
the resources of the department from its other operations.
I have consulted with departmental officers in the Bargaining and Coverage Branch
regarding the number and nature of documents held by the department which are likely to
be relevant to your request, and the work involved in processing your request.
I am asking you to reduce the scope of your request. If we are unable to reach a satisfactory
agreement on the scope of your request, it is my intention to refuse your request as
currently worded under section 24 of the FOI Act.
To assist you, I have set out the relevant sections of the FOI Act at
Attachment A.
Amount of time to process your request
To process your request, the department would have to do extensive searches to find the
documents you asked for. Preliminary searches indicate that the department may hold over
29,218 documents, totalling over 184,544 pages.
Based on my experience with the type and volume of records you want, I estimate it would
take many hundreds of hours in processing time. This includes consulting with other
persons, looking at al the documents to see if any of the pages might need redactions,
scheduling and writing a statement of reasons. Further, the material you have requested is
likely to be exempt as it consists of legal advice, was submitted to the Cabinet for its
consideration, or is deliberative in nature.
Why your request captures a substantial number of documents & assistance to revise
In order to understand the documents and assist you to revise your request, I have
consulted with officers in the department who are most familiar with the types of
documents you are seeking access to.
The department communicates regularly about the Australian Building and Construction
Commission (ABCC) on business as usual matters, given it is an entity within the
department’s portfolio. Your request as it is currently worded would capture all of these
business as usual type documents and communications. For example, a brief tabling the
ABCC’s quarterly reports would be captured by the terms of the current request, which may
not be the types of documents that you are seeking access to. It appears that you may be
interested in the government’s election commitment to abolish the ABCC, including
amending the Code, rather than al documents that may be business as usual in nature.
Being more specific about this part of your request may assist to remove the practical refusal
reason.
Similarly, your request covers a significant number of documents because of the time period,
as well as the number of officers that would need to undertake searches to identify
documents within the scope of the request. Accordingly, reducing the time period over
which you seek access to documents (for example, to a two week period), and limiting the
officers that would need to search for documents, may assist.
If you are seeking access to documents in relation to the abolition of the ABCC, the most
relevant officers in the department are those in the Bargaining and Coverage Branch in the
Workplace Relations Legal Division, and the Bargaining and Industry Policy Branch in the
Safety and Industry Policy Division. The Senior Executive officers in these two branches
would be the most likely to hold all relevant documents – limiting the scope in this way may
assist to remove the practical refusal reason. Reviewing the department’s organisational
chart may also assist you to identify the particular business areas to search, that is available
here:
https://www.dese.gov.au/about-us/resources/organisation-chart-dewr. You may also
wish to consider limiting searches to particular systems, like the Parliamentary Document
Management System, which the department uses to formally brief Ministers.
There is also a range of publicly available material related to the scope of your request,
including documents that were provided to the Senate in response to an Order to Produce.
Reviewing these documents may assist you to narrow the scope of your request. These
documents are available here:
https://www.aph.gov.au/Parliamentary_Business/Tabled_Documents/120. You may wish to
exclude this publicly available material when revising.
Additionally, there are documents that relate to legal advice, the legislative process and
Cabinet documents that would require detailed review for decision making purposes. You
may wish to exclude material of that nature to limit the scope of your request further.
Action required from you under the FOI Act
Before I make a final decision on your request, you can submit a revised request.
Under the FOI Act, you must do one of the fol owing things in the next 14 days:
• make a revised request
• tel us that you do not want to revise your request
• withdraw your request.
Contact officer
I am the contact officer for your request. During the consultation period you can contact me
to ask for help revising your request by emailing
xxx@xxxx.xxx.xx.
Your response wil be expected by
Monday 5 September 2022. If I do not receive a response
from you, your request wil be taken to be withdrawn by the operation of the FOI Act.
Further assistance
If you have any questions, please email xxx@xxxx.xxx.xx.
Yours sincerely
Claudia
Authorised decision maker
Freedom of Information Team
Department of Employment and Workplace Relations
22 August 2022
Attachment A
Relevant sections of the Freedom of Information Act 1982
Section 24AA(1)(a)(i) of the FOI Act provides that a practical refusal reason exists in relation
to an FOI request if the work involved in processing the request would substantial y and
unreasonably divert the resources of the department from its other operations.
Section 24AA(2) of the FOI Act sets out certain factors which the department must consider
when determining whether providing access in relation to a request would substantial y and
unreasonably divert resources. The department must specifically have regard to the
resources that would have to be used for:
• identifying, locating or collating the documents
• deciding whether to grant, refuse or defer access to a document to which the
request relates, or to grant access to an edited copy of such a document, including
resources that would have to be used for examining the document or consulting in
relation to the request
• making a copy, or an edited copy, of the document
• notifying any interim or final decision on the request.
Section 24AB(7) of the FOI Act provides that the request is taken to have been withdrawn at
the end of the consultation period if:
• the applicant does not consult the contact person during the consultation period in
accordance with the notice
• the applicant does not do one of the things mentioned in subsection (6) before the
end of the consultation period.
Section 24AB(6) says that the applicant must, before the end of the consultation period, do
one of the following, by written notice to the agency or Minister:
• withdraw the request
• make a revised request
• indicate that the applicant does not wish to revise the request.
Document Outline
