Dissemination by the FWBC of false information - ethics and accountability in the Commonwealth Public Sector

JS made this Freedom of Information request to Attorney-General's Department

Attorney-General's Department did not have the information requested.

From: JS

Delivered

Dear Attorney-General's Department,

A non-corporate Commonwealth entity is to report as soon as possible to the Attorney-General or OLSC on significant issues that arise in the provision of legal services, especially in handling claims and conducting litigation. These issues will include matters where: (a) the size of the claim, the identity of the parties or the nature of the matter raises sensitive legal, political or policy issues.

In July 2016 Fair Work Building and Construction (FWBC now ABCC) was a non-corporate Commonwealth entity. Federal Court proceedings under Fair Work legislation were instituted against the Director of FWBC on 19 Aug 2016 and on 18 October 2016 the Commonwealth of Australia was joined to the case. On 8 Sept 2017 the applicant and the Commonwealth consented to the proceedings against the Commonwealth being dismissed. The case against the Director was subject of a Federal Court judgement on 29 Sept 2017. 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.”

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. 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.

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

Link to this

From: FOI Requests
Attorney-General's Department

UNCLASSIFIED

FOI17/169

 

Dear JS,

 

I refer to your request under the Freedom of Information Act 1982 (FOI
Act) for access to documents as follows:

 

" I seek access under FOI to documents in the possession of the Department
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.."

 

If you disagree with this interpretation of your request, please let me
know as soon as possible.

 

We received your request on 7 October 2017 and the 30 day statutory period
for processing your request commenced from the day after that date. You
should therefore expect a decision from us by 6 November 2017. The period
of 30 days may be extended if we need to consult third parties or for
other reasons. We will advise you if this happens.

 

It is the usual practice of the department to not disclose the names and
contact details of junior officers of the department and other government
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the scope of a request.  The names and contact details of senior officers
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Please note that information released under the FOI Act may later be
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[1]http://www.ag.gov.au/RightsAndProtection...,
subject to certain exceptions. (For example, personal information will not
be published where this would be unreasonable.)

 

We will contact you using the email address you provided. Please advise if
you would prefer us to use an alternative means of contact.

If you have any questions, please contact [2][AGD request email].

 

Yours sincerely,

 

FOI Case Manager

 

Freedom of Information and Parliamentary Section

Strategy and Delivery Division | Attorney-General’s Department

T: (02) 6141 6666 | E: [3][AGD request email]

 

 

 

 

 

From: JS [[4]mailto:[FOI #4126 email]]

Sent: Saturday, 7 October 2017 1:27 PM

To: FOI Requests

Subject: Freedom of Information request - Dissemination by the FWBC of
false information - ethics and accountability in the Commonwealth Public
Sector

 

Dear Attorney-General's Department,

 

A non-corporate Commonwealth entity is to report as soon as possible to
the Attorney-General or OLSC on significant issues that arise in the
provision of legal services, especially in handling claims and conducting
litigation. These issues will include matters where: (a) the size of the
claim, the identity of the parties or the nature of the matter raises
sensitive legal, political or policy issues.

 

In July 2016 Fair Work Building and Construction (FWBC now ABCC) was a
non-corporate Commonwealth entity. Federal Court proceedings under Fair
Work legislation were instituted against the Director of FWBC on 19 Aug
2016 and on 18 October 2016 the Commonwealth of Australia was joined to
the case.  On 8 Sept 2017 the applicant and the Commonwealth consented to
the proceedings against the Commonwealth being dismissed.  The case
against the Director was subject of a Federal Court judgement on 29 Sept
2017.  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.”

 

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. 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.

 

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

 

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message and any reply that you make will be published on the internet.
More information on how Right to Know works can be found at:

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Link to this

From: FOI Requests
Attorney-General's Department


Attachment 201710261617.pdf
191K Download View as HTML


UNCLASSIFIED
FOI17/169; 17/11062

Dear JS

Please find attached the decision in respect of your FOI request below.

Yours sincerely

FOI Case Officer

Freedom of Information and Parliamentary Section Strategy and Delivery Division | Attorney-General’s Department
T: (02) 6141 6666 | E: [AGD request email]

show quoted sections

Link to this

From: JS

Delivered

Dear Attorney-General's Department,

Thank you for your response in which you convey your decision to refuse my request under section 24A of the FOI Act, ( provides for a refusal where documents cannot be found, do not exist or have not been received)

I apply for an internal review of that decision.

I agree that the Attorney-General’s Department has no role in undertaking assessments of agency compliance with the APS Code of Conduct other than its own. You note that Individual agencies are responsible for their own compliance and assessment and accordingly, the department has no documents that fall within the scope of my FOI application. I do not accept the proposition that because Individual Agencies are responsible for their own compliance and assessment it follows that the Department has no documents that fall within the scope of my FOI application.

Moreover, your response does not refer to any enquiry or search undertaken of documents in the possession of the Department that would tend to support the decision documents cannot be found, do not exist or have not been received.

Agency Heads are required to establish procedures for determining whether an APS employee, or former employee, in the agency has breached the Code of Conduct. The FOI request is not about agency compliance with the APS Code of Conduct, or about an APS employee, or former employee. The FOI request relates to a now former Agency Head, a position not subject to agency procedures but by the APS Commissioner who has an inquiry function into allegations of misconduct by agency heads.

As I mentioned in my FOI application, Federal Court proceedings under Fair Work legislation were instituted against the Director of FWBC on 19 Aug 2016. FWBC was required to report as soon as possible to the Attorney-General or OLSC on significant issues that arise in the provision of legal services, especially in handling claims and conducting litigation.

All APS employees but particularly Senior Executive Service employees are required to uphold the Values and Employment Principles, and promote them by personal example and other appropriate means. A diligent officer(s) within the Department may well have pondered that, if established, the behaviour of the Director of the Fair Work Building Industry Inspectorate may involve a potential breach of the Australian Public Service Code of Conduct, and further that diligent officer(s) may have recorded their ponderings or assessments. I am sure a diligent officer(s) would not condone a practice of not recording issues (i.e. don't put it in writing) to avoid any chance of a mention in FOI documents.

It may be the case that relevant documents do not exist. Nevertheless, I do not accept, given the matters set out in its response of 26th October, that the Agency discharged its FOI obligations in this instance.

A full history of my FOI request and all correspondence is available on the Internet at this address: https://www.righttoknow.org.au/request/d...

Yours faithfully,

JS

Link to this

From: FOI Requests
Attorney-General's Department

UNCLASSIFIED
FOI17/169; 17/11062
 
Dear JS
 
I refer to your application under the Freedom of Information Act 1982 (FOI
Act) for internal review of the decision of the Department, notified to
you on 27 October 2017.
 
We received your application on 15 November 2017 and the 30 day statutory
period for completing the internal review commenced from the day after
that date. You should therefore expect a decision from us by 15 December
2017.
 
Please note that information released under the FOI Act may later be
published online on our disclosure log
[1]http://www.ag.gov.au/RightsAndProtection...,
subject to certain exceptions. (For example, personal information will not
be published where this would be unreasonable.)
 
Please contact the FOI unit on the contact details below if you have any
queries.
 
Yours sincerely
 
FOI Case Manager
 
Freedom of Information and Parliamentary Section
Strategy and Delivery Division | Attorney-General’s Department
T: (02) 6141 6666 | E: [2][AGD request email]
 
 
 
 
 

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Link to this

From: FOI Requests
Attorney-General's Department


Attachment JS IR decision.pdf
226K Download View as HTML


UNCLASSIFIED
Dear JS

Please find attached a decision in response to your request for internal review below.

Yours sincerely

FOI Case Manager

Freedom of Information and Parliamentary Section Strategy and Delivery Division | Attorney-General’s Department
T: (02) 6141 6666 | E: [AGD request email]

show quoted sections

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