Letter of 30 April 2010 to the FOI Co-ordinator of the Prime Minister’s Department

Dear Sir or Madam,

Ref: FOI/2009/032

I refer to Mr Anderson’s decision of 14 April 2010. I attach a cheque of $30 for the application fee so my FOI inquiry can go ahead. At the same time I request Mr Anderson’s decision on remission of application fee to be reviewed because his decision was based on some vague or faulty assumptions.

If you find Mr Anderson’s assumptions are not proper, my application fee can be refund later. If the guideline provides: once application is paid no review will be conducted, please conduct the review first and post back the cheque.

The grounds for review
I appreciate that Mr Anderson apologised for the delay, which is three months longer than the guideline’s request (I was informed that the response to a FOI inquiry is four weeks.), without any reasons. He failed to provide any reasons. Or he reckoned that he did not need to follow the guideline anyway. While the PMD’s attitude toward the guideline is that they don’t need to follow the guideline strictly, the guideline is only used to defence the PMD’s decision of refusing to disclose documents or to waive FOI application fee.

The section of ‘Revised terms of your FOI request’ (in Mr Anderson’s letter)

My point was not whether or not the PMD could deal with my FOI inquiry. My point was my FOI inquiry in relation to the documents held by the PMO should be dealt with by the FOI branch not the legal police branch when dealt with by the PMD because I was advised that the reasons of why my previous FOI inquiry was not dealt with by the FOI branch was that the inquired documents were not produced by the FOI branch.

The section of ‘Decision on remission of application fee’ (in Mr Anderson’s letter)

1. The definition of ‘an existing public debate’
The most popular definition is:
a. debate: the formal presentation of a stated proposition and the opposition to it (usually followed by a vote) wordnetweb.princeton.edu/perl/webwn
b. Public debate is a formal style of debate. Two teams of two compete through six rounds of argument, giving persuasive speeches on a particular topic. http://www.osaa.org/publications/handbook/0708SPEECHHandbook.pdfen.wikipedia.org/wiki/Public_debate
according to http://www.google.com.au/search?hl=en&defl=en&q=define:public+debate&ei=5ajKS76PC8yLkAXY8eHFBA&sa=X&oi=glossary_definition&ct=title&ved=0CAYQkAE

According to above definitions and the guideline quoted by Mr Anderson, which is ‘a disclosure would contribute valuable material to an existing public debate’, the decisive factors for waiving application fee are that two teams of two are competing through an argument of six-rounds and the argument is on hold waiting the FOI inquiry.

Firstly the PMD has never requested the names or evidences of ‘two teams of two’. Secondly, please provide some well known examples of ‘existing public debate’ that the FOI application fees are waived (in particular the information can be found on internet. That is accessible by the public as required by the guideline).

Mr Anderson referred to subsection 30A(1) of the FOI Act, which does not request the additional condition of ‘existing public debate’. Please provide the definition of the ‘existing public debate’ in the guideline. If the definition is not in the guideline, it can be any controversial things, which are not private or confidential.

Mr Anderson held that:
a. the matter is of public interest; therefore, it meets the request set out in subsection 30A(1) of the FOI Act and
b. the disclosed documents are accessible by the general public.

Mr Anderson looked at my website and blog. He knew:
a. the government had refused to do anything including providing a guideline on how to complain ‘to a Court or Tribunal’ in ordinary situations, which is requested by the case law, and
b. on the other hand, dozens organisations, politicians and many thousands peoples from all walks of life had expressed their concerns on the matter, and
c. while organizations, politicians and people were considering the matter, they had debated about the matter. Many websites had referred to the matter.

In summary of this section, Mr Anderson found to the effect that there is a ‘public debate on the matter of concern to you’; however, while the definition of ‘existing public debate’ is not clear, what is ‘valuable material to an existing public debate’ cannot be clear. That may not be his fault. He erred in deciding that I did not provide clear information, instead of pointing out that the definition was not clear. Please kindly provide the definition of ‘an existing public debate’, then I may provide clearer information. He erred in relying on a reason that is clear neither to the decision maker nor the applicator.

2. It is ‘incorrect’ to request workers to complain about workplace illegalities ‘only to a Court or Tribunal’
Mr Anderson wrote: ‘in fact, I wrote that your interpretation of the case law was incorrect’. The fact is he did not use the word—‘interpretation’. Seemingly, he was too shy to or a bit worry to quote what he wrote. I quote it here: ‘You refer to “the case law that requests Australians to complain about workplace illegalities ‘only to a Court or Tribunal”: with respect, this is incorrect.’

a. It is a convention to say ‘with respect’ when one expresses an opinion different from a Court’s decision. Mr Anderson has not said ‘with respect’ when he disagreed with my points in his letters.

b. He further clarified what part was ‘incorrect’—the part ‘only to a Court of Tribunal’—saying: ‘This protects employees not only against dismissal because of a complaint to a court or tribunal, but also against dismissal because of a complaint to any other outside authority with power to investigate relevant allegation.’ On face of it, the ‘incorrect’ part of the sentence is ‘only to a Court or Tribunal’.

c. No government officer has said that ‘only to a Court or Tribunal’ is wrong except Mr Anderson said it on behalf of the Prime Minister. I kind of understand his dilemma. He still considered ‘only to a Court or Tribunal is ‘incorrect’, but he erred in finding that ‘incorrect’ statement was my interpretation. It is not clear to me why he made such apparent mistake.

d. The fact is ‘only to a Court or Tribunal’ is a quotation from the case law, not an interpretation. No government officers or politician has asserted that ‘only to a Court or Tribunal’ is correct; implicitly, Mr Anderson also cannot assert that.

e. Mr Anderson failed to provide any interpretation that he thought could be correct one. I do not doubt that he would have provided a correct interpretation, if he had a different one.

f. Mr Anderson has looked at my website, which refers to more than two dozen cases that have followed the case law. Mr Anderson did not find any judges or commissioners had made any different interpretations.

g. His letter of 26 August 2008 was written on behalf of the Prime Minister. The letter of 14 April 2010 was written on his own capacity. If that is the reason of why he tried to change the wording used in his letter of 26 August 2008, in my opinion, it is improper.

h. I could not figure out why he made such mistake. I guess Mr Anderson might be under pressure to defence the government’s attitude towards the ‘incorrect’ case law. He might try to find an excuse. The only thing he could do was blaming me not other officers or politicians.

In summary of this section, Mr Anderson erred in deciding: ‘place no weight on your incorrect characterisation of what I wrote for the purpose of considering whether the application fee should be remitted’

3. Public interest and debate in whether the Prime Minister wanted to keep the ‘incorrect’ policy
Mr Anderson reaffirmed to the effect that ‘only to a Court or Tribunal’ is ‘incorrect’ even though he wrongly alleged that was my interpretation as outlined above. As no government officer or politician has asserted that ‘only to a Court or Tribunal’ is correct, the consequential question of the public debate and interest is why the government has not done anything against the ‘incorrect’ policy.

Mr Anderson held ‘the public might well have an interest in government information relating to the protection of employees given apparently unlawful directions by their employers in workplace’; however, he did not find that the public interest in this matter has been properly addressed. Now the public interest and debate are on whether or not the Hon. Kevin Rudd MP knew the ‘incorrect’ policy. If he has not been informed, who decided the Hon Kevin Rudd MP should not be informed? What guideline has been followed?

Children overboard affair is a good example that the public was interested in and debated on the ‘record administrative notes in relation to processing Ministerial correspondence.’ The then Labor Opposition made two senate inquiries to find out whether the then Prime Minister had known relevant information.

The public is puzzled why the Government has kept the ‘incorrect’ policy for so long. My FOI is also relevant to the public interest and debate in whether the Hon Kevin Rudd MP is two-faced.

Mr Anderson found to the effect that Ms Marsha Thomson MP’s letter supported my previous inquiry which was about ‘administrative notes in relation to proceeding Ministerial correspondence’ in relation to the case law or ‘the protection of employees given apparently unlawful directions’.

In summary of this section, Mr Anderson erred in deciding:
a. that the public have no interest in the ‘administrative notes in relation to processing Ministerial correspondence…,’ or that ‘such notes would [not] add to any debate about the protection of employees given apparently unlawful directions by their employers in the workplace.’
b. not to attach any significant weight from Ms Marsha Thomson MP’s letter in considering my request for the remission.

I don’t argue whether I should pay the application fee for review because Mr Anderson wrote: ‘a decision is made on review to remit the application fee.”

If you have any queries about this letter, please do not hesitate to contact me.

Enc: a cheque of $30 for the application fee of FOI inquiry

Enclosure:

Mr Alex Anderson Assistant Secretary of Legal Policy Branch of PM’s Department of 14 April 2010 p1, p2, p3, p4, and 5.