Dear Fair Work Ombudsman,

Former FWO employee Mark Lee is facing a range of corruption allegations relating to his dealings and affiliation with the Liberal Party.

In accordance with its obligations under the Archives Act 1983, the FWO should have retained, and will have access to, the contents of Mr Lee’s FWO issued email account. Under the FOI Act, I seek access to any emails contained in all of Mr Lee’s FWO issued email account (including deleted items) that contain any of the following terms (in the body of an email and/or in the addressee fields of an email): “liberal.org.au”, “ipa.org.au” or “@aph.gov.au”.

Relevant documents can be quickly identified by searching “All Outlook Items” in Mr Wilson’s outlook client for the terms “liberal.org.au”, “ipa.org.au” and “[email address]”

I’m happy to provide further detailed information, including information that is not yet in the public domain, that goes to the public interest in the information the subject of my request upon request or in response to a notice issued under subsection 29(1) of the FOI Act.

Thank you.

Dear Ms Kent

Thank you for your email. In reply, I offer the following.

(1) The reference to “Mr Wilson’s outlook client” contained in my request was a typographical error for which I apologise. That reference should read “Mr Lee’s outlook client”.

(2) I note your statement, made as a delegate of, and on behalf of, the Fair Work Ombudsman, Ms Sandra Parker, that “[t]here are no such [corruption] allegations [made in respect of Mark Lee’s conduct] and the FWO rejects the assertion made in the request. The FWO is an independent statutory agency and all employees of the FWO conduct themselves in accordance with the APS Values.”

(3) On Monday 18 February 2019, Michaelia Cash’s former chief of staff, Ben Davies, told the Federal Court, under oath, that Mark Lee, the former FWO employee the subject of my request, had disclosed to him that a warrant to raid the AWU’s headquarters was to be executed (see: https://www.theguardian.com/australia-ne... ).

(4) If that testimony is correct, former FWO employee, Mr Lee, committed a serious criminal offence pursuant to s.122.4 of the Criminal Code Act 1995 and in the course of doing so, Mr Lee must have contravened the APS Code of Conduct/APS values (see ss. 10(2), 10(4), 10(5), 13(1), 13(4), 13(6), 13(7), 13(8), 13(10) and 13(11) of the Public Service Act 1999) . Such actions, on any objective assessment, amount to corruption within the ordinary meaning of that term.

(5) However, the FWO’s statement that “all employees of the FWO conduct themselves in accordance with the APS Values” implicitly asserts that Mr Davies’ testimony before the Federal Court was false, and therefore Ms Sandra Parker has effectively asserted that the former chief of staff to a Minister of the Crown has committed the serious criminal offence of perjury. That is a particularly bold assertion for an independent statutory officer to make (noting that Ms Parker is also subject to the application of the Public Service Act 1999).

(6) Among other things, my request concerns documents (to the extent they exist) that will disclose communications, made using Commonwealth resources, between an FWO employee and far right wing, Liberal party aligned, political lobby group, the Institute of Public Affairs (the IPA). Among the range of activities the IPA engages in, it is notable that the IPA appears to have engaged in financing a child rapist (see: https://www.thetablet.co.uk/news/7413/su...).

(7) Noting Ms Sandra Parker’s claim mentioned in your email that “all employees of the FWO conduct themselves in accordance with the APS Values” it seems to be the pre-emptive view of the FWO, that public servants who use Commonwealth resources to communicate with political lobby groups – be it the IPA, GetUp!, the Socialist Alliance or the United Patriots Front, do so in compliance with the requirements of the Public Service Act 1999. That is a particularly bold assertion from a senior independent statutory officer holder who is subject to the Public Service Act 1999 and one which effectively grants FWO public servants a wide discretion to engage in partisan political activity while at work. While the FWO’s liberal interpretation and application of the Public Service Act 1999 is refreshingly candid, I am not sure that the FWO’s views on these matters concur with the preponderance of others who are subject to the requirements of the Public Service Act 1999 (including Departmental Secretaries, rank and file public servants, the Public Service Commissioner, the Merit Protection Commissioner and independent statutory office holders other than Ms Parker). Accordingly, there is considerable public interest in the documents the subject of my request (including for the purpose of s.29(5)(b) of the FOI Act), not least because the disclosure of those documents will enable Ms Parker’s preferred interpretation of the Public Service Act 1999 to be independently assessed including for the purpose of determining whether Mr Lee has engaged in illegal conduct under the Public Service Act 1999. Any failure to comply with the obligations set out by the Public Service Act 1999 constitutes corruption within the ordinary meaning of that term.

(8) Similarly, the documents the subject of my request will disclose communications (to the extent such documents exist), made using Commonwealth resources, between an FWO employee and the Liberal Party of Australia and between an FWO employee and the office of a Minister of the Crown. Certainly, there will be instances where a person subject to the operation of the Public Service Act 1999 will, in the course of carrying out their functions and duties, need to use Commonwealth resources to communicate with a political party and/or a Minister of the Crown. But where such communications take place other than in the course of a public servant’s functions and duties, there must be serious questions to be asked regarding whether that person has acted in a manner that contravenes the Public Service Act 1999.

(9) Again, noting Ms Sandra Parker’s claim mentioned in your email that “all employees of the FWO conduct themselves in accordance with the APS Values”, it seems to be the pre-emptive view of the FWO, that public servants who use Commonwealth resources to communicate with politicians/political parties (be it the Liberal Party, the Greens, the Labor Party etc) for reasons unrelated to their normal functions and duties, do so in compliance with their legal obligations set out under the Public Service Act 1999. I don’t think that’s an interpretation of the Public Service Act 1999 that would be shared by the preponderance of persons who are subject to the operation of that Act. Accordingly, there is considerable public interest in the documents the subject of my request (including for the purpose of s.29(5)(b) of the FOI Act), not least because the disclosure of the documents the subject of my request will enable Ms Parker’s preferred interpretation of the Public Service Act 1999 to be independently assessed including for the purpose of determining whether Mr Lee has engaged in illegal conduct under the Public Service Act 1999. Any failure to comply with the obligations set out by the Public Service Act 1999 constitutes corruption within the ordinary meaning of that term.

Regards
D Ward

Dear FWO - FOI Requests,

Noting the application of paragraph 15(5)(b) of the FOI Act and subsection 13(4) of the Public Service Act 1999, is there a reason why a decision has not been made in respect of my FOI request?

Yours sincerely,

D Ward

Thanks very much for your work on this. On the basis of the information contained in your letter, I withdraw my FOI request.