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Hadgkiss and Lloyd

D Watson made this Freedom of Information request to Australian Public Service Commission

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From: D Watson

Delivered

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

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From: FOI
Australian Public Service Commission

UNCLASSIFIED

FOI Reference C18/1974

Good afternoon D Watson,

 

Acknowledgement of FOI request

 

The Australian Public Service Commission (the Commission) acknowledges
receipt of your request dated 13 October 2018, under the Freedom of
Information Act 1982 (Cth) (FOI Act), seeking access to the following
documents:

 

‘…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)…’

 

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, and we will advise you if such circumstances arise.
An extension to the timeframe may occur if there is a need to conduct
formal consultation with affected third parties. Such consultation may
extend the processing time by an additional 30 days, in accordance with
sections 27 and 27A [Consultation – business documents and personal
privacy] of the FOI Act.

 

Section 29 of the FOI Act provides that agencies may apply a processing
charge for access to documents which do not concern your personal
information. I will write to you and inform you if it is decided that a
processing charge will apply.

 

Section 22 of the FOI Act, provides that agencies may redact certain
material from documents, if it is deemed that material is irrelevant or
outside the scope of your request.  The Commission’s policy is to redact
the personal contact details of Commission or APSC officers, who are
employed below Senior Executive Officers (SES) level, such as mobile
telephone numbers and signatures. 

 

Should you have any questions relating to your request, please do not
hesitate to contact our office via email to [1][email address]

 

Kind regards,

 

 

FOI Coordinator

Legal Services

 

Australian Public Service Commission

Treasury Building, Parkes Place West, Parkes ACT 2600

GPO Box 3176, Canberra ACT 2601

Email: [email address]

 

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From: FOI
Australian Public Service Commission


Attachment C18 1974 Charge decision 24 Oct 18.pdf
1.9M Download View as HTML


UNCLASSIFIED
FOI Reference: C18/1974
Good afternoon D Watson,

Please find attached correspondence from the Australian Public Service Commission, in relation to your FOI request.

Regards
Karen

FOI Coordinator

Australian Public Service Commission
Level 4, B Block, Treasury Building
Parkes Place West, Parkes ACT 2600
P: 02 6202 3500    l    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.

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.

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Verity Pane left an annotation ()

A charges levy of $202.94 for 44 documents totalling 84 pages seems rather onerous and excessive (and that is the levy after the agency reduced its estimate by 20%).

As this is not a charges notice, but a preliminary estimate (therefore not decided yet), would be worth asking the delegate to provide some further information, as I note the charges levy estimated was giving in summary form only, with no details of hours or rates involved.

From my reading, it seems that for the limited number of documents, the decision making time charge is excessive, but this may be due to the APSC not approaching the FOI from the lowest cost practicable (such as charging for a very senior reviewer, aka SES level, when an APS6 or EL1 reviewer is all that would be needed).

At this stage it would be worth discussing with the APSC, including their assessment there is only limited public interest (considering the amount of press around his early resignation from office, and lately his appearances before inquiries and the reporting of the Merit Protection Commissioner’s report finding Mr Lloyd did indeed breach the APS Public Service Act this seems a stretch).

If they they go on to issue this as a charges notice regardless, you’d have to make a formal internal review or IC review request, which would then stop the s 15(5)(b) clock.

All the best,

Verity

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From: D Watson

Delivered

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

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From: FOI
Australian Public Service Commission

Good afternoon D Watson,

The Australian Public Service Commission acknowledges receipt of your email below, in which you have requested a review of the Charge decision, in accordance with section 29(1)(f)(ii) of the FOI Act.

In accordance with section 29(6) of the FOI Act, you are required to receive your review of charges decision within 30 days. Therefore the statutory due date for you to receive your charge decision will fall due on 29 December 2018.

Regards,
Karen

FOI Coordinator

Australian Public Service Commission
Level 4, B Block, Treasury Building
Parkes Place West, Parkes ACT 2600
P: 02 6202 3500    l    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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From: D Watson

Delivered

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

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From: FOI
Australian Public Service Commission

Good morning D Watson,

Thank you for your email.

You are correct, the due date for your charges review decision is 24th December. My apologies for the confusion. It is anticipated that you will have your decision letter Monday 24th or sooner if possible.
Kind regards
Karen

FOI Coordinator

Australian Public Service Commission
Level 4, B Block, Treasury Building
Parkes Place West, Parkes ACT 2600
P: 02 6202 3500    l    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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From: FOI
Australian Public Service Commission


Attachment C18 2246 Contesting Prelim Charge decision 19 Dec 18.pdf
1.6M Download View as HTML


Good afternoon D Watson

I refer to your request dated 22 November 2018 (below), in which you are seeking a review of Ms Crosthwaite's preliminary charge decision, relevant to your FOI request. Please find attached your charges determination decision.

Regards,
Karen

FOI Coordinator

Australian Public Service Commission
Level 4, B Block, Treasury Building
Parkes Place West, Parkes ACT 2600
P: 02 6202 3500 l 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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From: D Watson

Delivered

Dear FOI,

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

Yours sincerely,

D Watson

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From: FOI
Australian Public Service Commission

Dear Mr Watson

Thank you for your email of 16 January. As of today, the Commission's Finance area has no record of receiving your payment. The Commission's Finance area advises that electronic transfers can take up to two weeks in some cases.

Can you advise the date on which you made the payment and can you confirm the reference you included?

Regards

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From: FOI
Australian Public Service Commission

Dear Mr Watson

I have been advised that a payment of $71.72 has now been received by the APSC.

Thank you and regards.
Susannah

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