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APSC produced document for the IPA

Fliccy made this Freedom of Information request to Australian Public Service Commission

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From: Fliccy

Delivered

Dear Australian Public Service Commission,

The following is an FOI request.

I refer the APSC to the following media coverage:

https://www.crikey.com.au/2017/10/24/lib...

http://www.canberratimes.com.au/national...

https://www.themandarin.com.au/85236-thr...

As I understand, that media coverage relates to this FOI decision: https://www.righttoknow.org.au/request/i... and specifically, the production of a 13 page document by APSC staff (titled “Examples of ‘soft’ arrangements in Commonwealth enterprise agreements” (the “APSC produced document for the IPA”) beginning at page 16 of this document https://www.righttoknow.org.au/request/3... ) for the use and benefit of far right wing political extremist group, the Institute of Public Affairs (the ‘IPA’) – a political group for which the current Public Service Commissioner is a contributing member, and former director.

As I understand from the articles and the FOI documents referred to above, certain APSC staff consider it an appropriate use of scarce Commonwealth resources/taxpayer money to provide research and authoring services to the IPA in order to further the political objectives of the IPA and its membership (including the Public Service Commissioner).

I request access to all documents held by the APSC that relate to the APSC produced document for the IPA.

To narrow the scope of my request I am willing for it to relate only to email documents (ie. emails and any attachments to those emails) and I am willing for the APSC to disregard 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). I am also willing for the APSC to disregard any documents within the scope of my request that have already been made available here: https://www.righttoknow.org.au/request/3...

The APSC staff who took part in the preparation of the APSC produced document for the IPA have likely acted illegally (noting the obligations, prohibitions and criminal offences established by the Public Service Act 1999, the Public Governance, Performance and Accountability Act 2013 and the Criminal Code Act 1995) and so part of the purpose of my request is to ensure that those officers are brought to justice.

While I understand that the Public Service Commissioner was intimately involved in the preparation of the document at issue, I understand that other APSC staff had some involvement in the preparation of the document.

I note, for example, from pg 9 of 32 of the document available here: https://www.righttoknow.org.au/request/3... that the APSC’s Group Manager Corporate thinks it appropriate to copy in members of the IPA into intra senior management APSC communications as if those IPA members are on the APSC’s/Commonwealth’s payroll and part of the APSC’s senior management team and so perhaps the APSC’s Group Manager Corporate played some part in the preparation of the document at issue.

I remind the APSC of the following:

- the objects of the FOI Act which relevantly include “increasing scrutiny, discussion, comment and review of the Government’s activities”, “increasing recognition that information held by the Government is to be managed for public purposes, and is a national resource” and “that functions and powers given by [the FOI Act] are to be performed and exercised, as far as possible, to facilitate and promote public access to information, promptly and at the lowest reasonable cost”.
- the criminal offence established by section 24 of the Archives Act 1983; and
- the obligations imposed on APSC staff by the Public Service Act 1999 (in particular the obligations to behave honestly, apolitically, with integrity and transparently) and the Public Governance, Performance and Accountability Act 2013.

Further, if any member of the APSC’s Legal Group who holds a practising certificate processes this request (or indeed if they were involved in the preparation of the document at issue), I remind those APSC officers of their professional obligations in relation to their paramount duty to the administration of justice and to avoid any conduct which may be seen to compromise their integrity and professional independence.

I also note relevant advice from the FOI Guidelines that provides that “[w]here public servants’ personal information is included in a document because of their usual duties or responsibilities, it would not be unreasonable to disclose unless special circumstances existed” and that “[w]hen considering whether it would be unreasonable to disclose the names of public servants, there is no basis under the FOI Act for agencies to start from the position that the classification level of a departmental officer determines whether his or her name would be unreasonable to disclose. In seeking to claim the exemption an agency needs to identify the special circumstances which exist rather than start from the assumption that such information is exempt.”

Lastly, I note that it would be clearly improper (at least from the perspective of an ethical, honest and law abiding public servant) for this request to be processed by any person who has any affiliation whatsoever with the Liberal Party, the IPA or any other far right wing political extremist group. To the extent that there are any authorised officers at the APSC who have no such affiliations, I request that they process this request independently of other APSC officers who are affiliated with extremist groups of that persuasion.

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From: Fliccy

Delivered

Dear Australian Public Service Commission,

Here's a link to another article on this matter for your consideration. It was written by a public sector ethics expert who considers that the APSC staff involved in this incident have acted illegally:

http://www.canberratimes.com.au/national...

Obviously, there's a wide public interest in circumstances where highly paid senior officials (including an agency head) at an agency charged with "promot[ing] high standards of integrity and conduct in the APS" act illegally.

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From: FOI
Australian Public Service Commission

Dear Fliccy,

I acknowledge receipt of request dated 2 November 2017 seeking access to documents under the Freedom of Information Act 1982 (Cth) (the FOI Act). A copy of your request can be found below.

The statutory timeframe for responding to your request under the FOI Act is 30 days from the date of receipt. This timeframe may be extended in certain circumstances. We will advise you if such circumstances arise.

The department will advise you if a charge is payable to process your request and the amount of any such charge as soon as practicable.

Should you have any questions in relation to your request, please contact the FOI team by reply email.

Kind regards,

FOI Officer
Legal Services

Australian Public Service Commission
Treasury Building, Parkes Place West, Parkes ACT 2600 GPO Box 3176, Canberra ACT 2601

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From: FOI
Australian Public Service Commission


Attachment Correspondence C17 2088.pdf
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Dear Applicant,

Please find attached correspondence relating to your request.

Regards,

FOI Officer
Legal Services

Australian Public Service Commission
Treasury Building, Parkes Place West, Parkes ACT 2600 GPO Box 3176, Canberra ACT 2601

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From: Fliccy

Delivered

Dear FOI,

I am writing in response to the APSC’s letter of 15 November 2017 advising that I am liable to pay a charge, preliminarily assessed to be $233.77, for the processing of my FOI request dated 2 November 2017.

I contend that charge should not be imposed because release of the documents is in the general public interest, including because those documents will tend to demonstrate that the Public Service Commissioner, and potentially other members of the Australian Public Service Commission’s (APSC’s) senior management team have engaged in serious and unlawful misconduct. My submissions in support of my contention follow.

[1] The Public Service Act 1999 requires that public servants be impartial and apolitical (s.10(5)) and that public servants be engaged by way of a merit based selection process (s.10A(2)). Pursuant to paragraph 41(1)(b) of the Public Service Act 1999, the Public Service Commissioner is required to uphold high standards of integrity and conduct in the Australian Public Service.

[2] In December 2015, Mr John Lloyd was appointed to the position of Public Service Commissioner in the absence of a merit-based selection process after being offered the job over the phone by Senator Eric Abetz: http://parlinfo.aph.gov.au/parlInfo/sear....

[3] Immediately prior to his appointment, Mr Lloyd was a member of the Liberal Party and also a Director and member of far-right wing ‘think tank’ and political lobby group, the Institute of Public Affairs (IPA): https://westerncivilisation.ipa.org.au/p....

[4] Mr Lloyd remains a contributing member of the IPA: http://parlinfo.aph.gov.au/parlInfo/down... (pp.93-94)

[5] Among its political objectives, the IPA seeks the abolition of large swathes of the Australian public service: http://ipa.org.au/publications-ipa/ipa-r....

[6] Earlier this year, in response to a freedom of information request (https://www.righttoknow.org.au/request/i... ) seeking copies of correspondence between the APSC and the IPA, the APSC provided access to the following document: https://www.righttoknow.org.au/request/3... (the 32 page “FOI document”).

[7] Document 4 (beginning at page 12 of the 32 page FOI document) concerns the production of a 13-page document (beginning at page 16 of the FOI document), researched and prepared by APSC staff, at the direction of John Lloyd, titled ‘Examples of ‘soft’ arrangements in Commonwealth enterprise agreements” (the ‘IPA document’).

[8] The IPA document has been produced following a discussion between John Lloyd and his colleagues at the IPA, for the purposes of an article to be produced by the IPA. The IPA document was not made publicly available (other than in response to a FOI request). In effect, the IPA document was researched, prepared and produced by Commonwealth public servants for the use and benefit of the IPA.

[9] In response to being provided with the APSC produced document, the IPA thanked Mr Lloyd indicating that the document is ‘very handy’ (see pg 12 of 32 of the FOI document). Indeed it was. The IPA subsequently prepared and published an article later that year titled “Driving a soft bargain” examining the Commonwealth Public Sector Enterprise Agreements 2011 – 2014” (available here: https://ipa.org.au/publications-ipa/rese... which criticises what the IPA perceives to be the overly generous pay and conditions of rank and file Commonwealth public servants.

[10] The IPA’s article is substantially based on the APSC produced IPA document. There are considerable portions of the IPA’s article that plagiarise, in many cases word for word, information contained in the APSC produced IPA document. For example, paragraphs 1 to 3 of the APSC produced IPA document reads as follows:
1. Over the past decade, APS employees have enjoyed wage increases substantially above CPI.
2. During this time, APS remuneration increases totalled 50.7 per cent, compared to CPI increases of 31.8 per cent. That is more than most other industries.
3. In addition to these generous wages, Commonwealth public sector agreements have accumulated other generous terms and conditions. These go beyond those provided by minimum safety nets, often well above community standards.

Page 24 of the IPA article contains the following passages:
Over the past decade, APS employees have enjoyed wage increases substantially above CPI. During this time, APS remuneration increases totalled 50.7 per cent, compared to CPI increases of 31.8 per cent. That is more than most other industries.
[…]
In addition to these generous wages, Commonwealth public sector agreements have
accumulated other generous terms and conditions. These go beyond those provided by minimum safety nets, often well above community standards.

[11} Another example is that at paragraph 19 of the APSC produced IPA document (on page 6 of that document) which reads as follows:
19. Most APS agreements contain prescriptive arrangements which guarantee union delegates access to use workplace facilities, infrastructure, technology and resources for the purposes of carrying out their role with their union. […]

Page 21 of the IPA article contains the following passage:
All agreements contain prescriptive arrangements which guarantee union delegates access to use workplace facilities, infrastructure, technology and resources – and paid time – for the purposes of carrying out their role with their union.

[12] The IPA’s article does not acknowledge or attribute the APSC prepared IPA document. Effectively, the APSC, at Mr Lloyd’s direction, has provided taxpayer funded research and writing services to Mr Lloyd’s colleagues and fellow members at the IPA in order to pursue the political objectives of the IPA and its members (which include Mr Lloyd). At the direction of John Lloyd, the APSC has been used as a research outpost facility for a far-right think tank and political lobby group of which Mr Lloyd is a longstanding member and former staffer.

[13] The IPA then proceeded to use the article as the basis for its submission in support of the Government’s enterprise bargaining policy for the public service to the recently conducted Senate inquiry into the Government’s workplace bargaining policy for the public service (https://www.aph.gov.au/Parliamentary_Bus... ).

[14] The IPA’s submission to that Senate inquiry is here: http://www.aph.gov.au/DocumentStore.ashx.... The IPA’s submission to that inquiry, together with the APSC’s submission, are the only submissions to that inquiry, of the 503 lodged, in support of the Government’s bargaining policy for the public service. The IPA’s submission does not acknowledge or attribute the APSC produced IPA document, despite that the IPA’s submission has effectively been ‘ghost written’ by the APSC at the direction of John Lloyd.

[15] The IPA then used the APSC produced IPA documents as the basis for its oral submissions at that inquiry (see here: http://parlinfo.aph.gov.au/parlInfo/sear....

[16] Mr Lloyd was present at the Senate Inquiry’s public hearing but did not disclose the APSC’s role in the preparing the IPA document which formed the basis of the IPA’s written and oral submissions.

[17] The Coalition Senators' Dissenting Report resulting from that Senate Inquiry (available here: http://www.aph.gov.au/Parliamentary_Busi... is substantially based on the IPA’s submission, which is based on the work done by the APSC, at the direction of John Lloyd, for the use and benefit of the IPA.

[18] By the actions set out above, it is apparent that Mr Lloyd, and potentially other members of the APSC’s senior management team have acted illegally by contravening:
• subsections 13(1), 13(7), 13(8), 13(10) and 13(11) of the Public Service Act 1999;
• sections 26, 27, 28 and 29 of the Public Governance, Performance and Accountability Act 2013; and
• section 142.2 (abuse of public office) of the Criminal Code Act 1995.

[19] I note that Mr Lloyd’s misconduct has been the subject of a range of media coverage including:

http://www.canberratimes.com.au/national...

https://www.crikey.com.au/2017/10/24/lib...

https://www.themandarin.com.au/85236-thr...

http://www.canberratimes.com.au/national...

[20] I further note that with a total annual remuneration of $692,500, Mr Lloyd is one the highest paid statutory office holders in the Commonwealth, being paid some 50% more than the Commonwealth Ombudsman and Australia’s Chief Scientist and almost twice as much as the Information Commissioner: http://www.remtribunal.gov.au/media/docu... .

[21] In the interests of transparency and the maintenance of an apolitical, impartial and uncorrupted Australia Public Service that adheres to the rule of law, it is very much in the general public interest that the APSC release any documents associated with the serious misconduct set out above such that the administration of justice in relation to these matters is not hindered.

[22] The matters set out above indicate that Mr Lloyd and the APSC’s senior management team use scarce Commonwealth/taxpayer resources to assist the political purposes of a far-right wing political lobby group (of which Mr Lloyd is a longstanding member). I note that while Mr Lloyd is willing to direct the wholly improper use of Commonwealth resources to enrich the IPA and further its political objectives without charging that lobby group for the taxpayer services provided - when it comes to providing access to Government information held by the APSC on behalf of the public, the APSC has sought to impose a substantial charge with a view to avoiding the public scrutiny associated with a serious misuse of Commonwealth resources.

[23] Other documents contained in the FOI document demonstrate the level with which the IPA has infiltrated the APSC. For example, document 3, which begins on page 9 of the FOI document demonstrates that the IPA is comfortable contacting the APSC’s Group Manager, Corporate advising the APSC of political material that may be of interest to Mr Lloyd, to which the APSC’s Group Manager, Corporate responds by immediately referring that information to members of the APSC’s senior management team including by copying in the IPA staff member as if that person were a member of the APSC’s senior management team. Under Mr Lloyd’s direction, the APSC has become a puppet of the IPA.

[24] I now turn to the authors of the IPA article – Mr Aaron Lane and Mr James Paterson – and additional aspects of the public interest that will be served by the release of the documents the subject of my request, without a charge being imposed.

[25] One author of the IPA article, now Senator James Paterson, chaired the recently conducted Senate inquiry into the Government’s workplace bargaining policy for the public service (https://www.aph.gov.au/Parliamentary_Bus... ).

[26] Despite the requirements of the Senate Standing Orders, Senator Paterson failed to disclose to the Committee that the IPA’s submission to that Committee’s inquiry was almost entirely based upon the IPA article which he co-authored and which itself is largely based on, and plagiarises, the APSC produced IPA document. It is in the general public interest that such misconduct on the part of a Parliamentarian be referred to the Senate Privileges Committee and the production of the documents the subject of my request will shine further light on the extent of Senator Paterson’s misconduct.

[27] The other author of the IPA article is Mr Aaron Lane. Mr Lane’ character is set out here: http://www.theage.com.au/victoria/libera.... I note Mr Lane is currently a lecturer at RMIT University and is subject to a range of policies concerning academic misconduct (which encompass plagiarism). There is a general public interest in ensuring that Australia’s tertiary intuitions are not staffed by homophobic academics who engage in academic misconduct.

[28] An additional public interest aspect served by the release of the documents the subject of my request without charge relates to the copyright that subsists in the APSC produced IPA document that vests with the Crown/Commonwealth. Subject to the existence of a licensing agreement that permitted the plagiarising of the APSC produced IPA document as set out above, the Crown’s copyright comprised in the APSC produced IPA document has been exercised and infringed by:
- the IPA;
- Mr Aaron Lane (a co –author of the IPA article);
- Mr James Paterson (current Senator and co-author of the IPA article); and
- RMIT University (who published the IPA article).

[29] It would be highly unusual, and would constitute a violation of the Government’s Intellectual Property Rules (https://www.communications.gov.au/policy... for the APSC to have granted the authors of the IPA article, or the IPA itself, a copyright licence to exploit the APSC produced IPA document in the manner described above. There is a wide public interest in the enforcement of the Crown’s copyright and the documents the subject of my request will demonstrate whether the APSC granted the IPA a licence to exercise the rights comprised in the copyright that subsists in the APSC produced IPA document.

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From: Fliccy

Delivered

Dear FOI,

Further to my email to you of 15 December 2017 setting out why the release of the documents the subject of my request is in the general public interest, I refer the APSC to the following article published today: http://www.canberratimes.com.au/national... by Fairfax papers.

The article indicates that the Public Service Commissioner, Mr John Lloyd, has refused to comply with a Senate Committee request for details of communications between Mr Lloyd and far right wing political lobby group, the Institute of Public Affairs (of which Mr Lloyd is a long standing member and former staffer), presumably because doing so would further demonstrate Mr Lloyd's malfeasance in, and abuse of, public office.

This information supplements and supports my submissions in respect of this matter - clearly there is a general public interest in shining a light on the corrupt practices of the most senior, and most highly remunerated, public servants.

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From: FOI
Australian Public Service Commission


Attachment C17 2088 Signed charges decision.pdf
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Dear Applicant,

I refer to your correspondence of 15 December 2017, as below.

Please see attached the determination about the applicable charges.

Yours sincerely,

FOI Officer
Legal Services

Australian Public Service Commission
Treasury Building, Parkes Place West, Parkes ACT 2600 GPO Box 3176, Canberra ACT 2601

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From: FOI
Australian Public Service Commission


Attachment Freedom of Information request APSC produced document for the IPA.txt
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UNCLASSIFIED

FOI Reference C17/2088

 

Good afternoon FOI Applicant

 

I refer to your FOI request lodged on 2 November 2017, where you sought
access to documents relating to all documents held by the APSC that relate
to the APSC produced document for the IPA, as outlined in the attached
email.

 

As you are aware the Information Commissioner wrote to the yourself and
the APSC on 6 April 2018 confirming the section 55F agreement signed by
the parties.

 

The APSC has recommenced processing of your request in accordance with the
section 55F agreement. 

 

It has been determined following assessment of the documents that it is
necessary for the Commission to conduct formal consultation with affected
third parties as required by sections 27 and or 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.  The statutory due date for you to receive a decision will fall due
on 6 June 2018.

 

Kind regards

 

 

FOI Coordinator

Legal Services

 

Australian Public Service Commission

Level 4, B Block, Treasury Building

Parkes Place West, Parkes ACT 2600

Email: [1][email address]

 

 

Important: This e-mail is for the use of the intended recipients only and
may contain information that is confidential, commercially valuable and/or
subject to legal privilege. If you are not the intended recipient you are
notified that any review, re-transmission,

disclosure, dissemination or other use of, or taking any action in
reliance upon this information is prohibited. If you have received this
e-mail in error, please notify the sender immediately and delete all
electronic and hard copies of this transmission together with any
attachments.

 

 

 

Important: This email remains the property of the Commonwealth and is
subject to the jurisdiction of section 70 of the Crimes Act 1914. It may
contain confidential or legally privileged information. If you think it
was sent to you by mistake, please delete all copies and advise the
sender.

References

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From: FOI
Australian Public Service Commission

UNCLASSIFIED

FOI Reference C17/2088

 

Good afternoon Fliccy

 

I refer to your FOI request as detailed below.

 

The statutory timeframe for you to receive your decision falls due on 6
June 2018.

 

The decision maker is currently assessing the documents relevant to your
request and has determined that there are a number of duplicate documents.
 As such, are you agreeable for duplicates to be removed from the scope of
the request?

 

In addition there are a number of draft versions of the documents titled
Examples of 'soft' arrangements in Commonwealth Enterprise agreements.  To
limit the number of pages and number of documents you receive, are you
agreeable to being provided with the final version of those documents, or
do you require all draft versions of those documents?

 

Could you please respond by COB Wed 23 May 2018.  In the event that we do
not receive your response by this time, we will assume that you are
agreeable to removing duplicates and draft versions.

 

Kind regards

 

 

FOI Coordinator

Legal Services

 

Australian Public Service Commission

Level 4, B Block, Treasury Building

Parkes Place West, Parkes ACT 2600

E: [email address]

 

Important: This e-mail is for the use of the intended recipients only and
may contain information that is confidential, commercially valuable and/or
subject to legal privilege. If you are not the intended recipient you are
notified that any review, re-transmission,

disclosure, dissemination or other use of, or taking any action in
reliance upon this information is prohibited. If you have received this
e-mail in error, please notify the sender immediately and delete all
electronic and hard copies of this transmission together with any
attachments.

 

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