s 47F
By email: s 47F
Our reference: SHC22-27698
Dear s 47F
Freedom of Information request
1. I am writing about your 8 May 2022 internal review request made under the
Freedom of
Information Act 1982 (FOI Act), of a decision issued by the Australian Public Service
Commission (Commission).
2. The FOI Act and all other Commonwealth legislation referred to in this letter are publicly
available from www.legislation.gov.au
Background
3. On 4 April 2022 you requested access to the following documents under the FOI Act:
“
…
Under section 53 of the PID Act, to the extent that an investigation under the PID Act
relates to an alleged breach of the Code of Conduct (within the meaning of the Public
Service Act 1999), the principal officer or their delegate must comply with the procedures
established under subsection 15(3) of the Public Service Act.
According to an article published in the Australian on 8 February 2022 (Untried lawyers
score key positions) “[i]n late December 2020, Ms McMullan wrote to Ms Lagos to inform
her she had found the recruitment process that led to the court promoting [a female to the
position of registrar] had breached the Public Service Act …”
Presumably, this contravention of the Public Service Act was a contravention of the Code
of Conduct because paragraph 13(11)(a) of the Public Service Act requires all APS
employees to, at all times, behave in a manner that upholds the APS Employment Principles
(among other things).
Part A
B Block, Treasury Building
Parkes Place West PARKES ACT 2600
GPO Box 3176 CANBERRA ACT 2600
Under the APSC’s procedures established under s 15(3) of the Public Service Act:
If a determination is made in relation to a suspected breach of the Code by a person who
is, or was, an APS employee in the Commission, a written record must be made of:
a. the suspected breach; and
b. the determination; and
c. any sanctions imposed as a result of a determination that the employee has breached the
Code; and
d. if a statement of reasons was given to the person regarding the determination in relation
to suspected breach of the Code, or, in the case of an employee, regarding the sanction
decision, that statement of reasons or those statements of reasons.
Under the FOI Act, I request a copy of the statement of reasons prepared by Ms McMullan
in relation to the contravention of the Public Service Act. The document may be provided
to me by return email.
Part B
Under the APSC’s procedures established under s 15(3) of the Public Service Act:
A determination may not be made in relation to a suspected breach of the Code by a person
unless reasonable steps have been taken to
a. inform the person of:
i. the details of the suspected breach of the Code, including any subsequent variation of
those details; and
ii. where the person is an APS employee, the sanctions that may be imposed on them under
subsection 15(1) of the Act; and
b. give the person a reasonable opportunity to make a statement in relation to the suspected
breach.
It is public knowledge that Ms McMullan found that the female registrar was selected over
a field of candidates who had been admitted as legal practitioners, admission being an
essential qualification for the registrar position (see article published in the Australian on
8 February 2022 referred to above).
Under the FOI Act, I request copies of any documents provided to the person or persons
who was or were suspected of breaching the Public Service Act (i.e. probably s 13(11)(a)
of the Act), those persons presumably being responsible for selecting the female registrar
above other qualified and meritorious candidates, by Ms McMullan.
The documents may be provided by email.”
ATTACHMENT A
Rights of Review
Asking for a full explanation of a Freedom of Information decision
If you are dissatisfied with this decision, you may seek review. Before you seek review of a
Freedom of Information (FOI) decision, you may contact us to discuss your request and we
will explain the decision to you.
Applying for external review by the Australian Information Commissioner
If you do not agree with the original FOI decision or the internal review decision, you can ask
the Australian Information Commissioner to review the decision. You have 60 days to apply
in writing for a review by the Office of the Australian Information Commissioner (the OAIC)
from the date you received this letter or any subsequent internal review decision.
You can
lodge your application:
Online:
www.oaic.gov.au
Post:
Australian Information Commissioner
GPO Box 5218
SYDNEY NSW 2001
Email:
xxxxxxxxx@xxxx.xxx.xx
The OAIC encourage applicants to apply online. Where possible, to assist the OAIC you
should include your contact information, a copy of the related FOI decision and provide
details of your reasons for objecting to the decision.
Complaints to the Information Commissioner and Commonwealth Ombudsman
Information Commissioner
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in the exercise of powers or the performance of functions under the FOI Act. There is no fee
for making a complaint. A complaint to the Information Commissioner must be made in
writing. The Information Commissioner's contact details are:
Telephone:
1300 363 992
Website: www.oaic.gov.au
Commonwealth Ombudsman
You may complain to the Ombudsman concerning action taken by an agency in the exercise
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writing. The Ombudsman's contact details are:
Phone:
1300 362 072
Website:
www.ombudsman.gov.au
