FEDERAL COURT OF AUSTRALIA – INVESTIGATION INTO REGISTRAR APPOINTMENTS
KEY NARRATIVE
In 2020, the Commission conducted an investigation after a public interest
disclosure (PID) was allocated us by the Commonwealth Ombudsman.
The investigation was finalised in December 2020.
In December 2021, we were informed that the Commonwealth Ombudsman was
conducting a preliminary inquiry into whether to conduct an investigation into the
handling of the PID complaint.
We have provided material to the Commonwealth Ombudsman to assist with the
preliminary inquiry.
The outcome of the preliminary inquiry will determine whether or not an
investigation is required.
QUESTIONS AND ANSWERS
If asked about why the Commission conducted this investigation
The investigation was the result of a public interest disclosure made to the
Commonwealth Ombudsman.
The
Public Interest Disclosure Act 2013 (PID Act) provides that when a PID is made the
handling of the disclosure can be allocated to one or more agencies.
In this case, the handling of the disclosure was allocated by the Commonwealth
Ombudsman to the Commission.
If asked about the conduct of the investigation
I understand that this matter relates to a public interest disclosure. The PID Act has
protections in place to protect the identity of disclosers and obligations to ensure the
confidentiality of the investigation, so I will talk in general terms about the
investigation.
The investigation commenced in May 2020, when the PID was allocated to the
Commission by the Commonwealth Ombudsman.
As reported in the media, Kate McMullan was appointed to investigate the
complaint.
As reported in the media, the investigation was completed in December 2020.
The discloser was provided with a redacted copy of the investigation report on or
around 23 December 2020.
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If pressed on the length of time of the investigation
During the course of the investigation, a substantial amount of documentation was
provided by relevant parties.
The disclosures involved allegations that proper practices were not undertaken with
respect to recruitment processes leading to a number of appointments.
The Commonwealth Ombudsman agreed to two extensions of time to allow the
Commission to properly consider the material and to complete its investigation.
If asked about the findings of the investigation
The handling of a disclosure may be the subject of a complaint to the Commonwealth
Ombudsman.
The Ombudsman has contacted the Commission to inform us it is conducting a
preliminary inquiry to determine whether or not conduct an investigation.
We are waiting for the outcome of that inquiry to determine whether the matter
requires further consideration.
If pressed on when the Commonwealth Ombudsman will complete their inquiry/investigation
We understand the Commonwealth Ombudsman will let us know the outcome of its
preliminary inquiry; however, questions on timeframes are best put to the
Ombudsman.
If asked about the commentary in media articles about broadbanding of SES positions
Broadbanding is an arrangement where two or more APS classifications are
combined into a single broader group of duties (a band) to meet the needs of a
particular agency.
o Senior Executive Service (SES) classifications are excluded from broadbanding
arrangements under the
Public Service Classification Rules 2000 (section 9(5)).
Role evaluation is the method of determining the relative work value of a job (role)
through assessing the nature, impact and accountabilities of the role.
In support of consistent classification decision-making across the Australian Public
Service (APS), agencies are encouraged to incorporate a structured role evaluation
process into their classification management practices.
It is not uncommon for positions with the same job title to be classified differently
because of differences in one or more of the evaluation factors – for example, the
scope and complexity of the roles.
A role evaluation, which determines that the appropriate classification for a role
could differ depending on the nature of the work involved, is distinct and separate to
a broadbanding arrangement which relates to the grouping of two or more
classifications into a single band.
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If asked about the specifics of the complaint?
I am not able to comment on the specifics of the investigation or complaint. It would
be an offence to do so, as it would breach the confidentiality requirements of the PID
Act.
If asked about what happens if an APS employee is found to have breached the PS Act or
Commissioner’s Directions?
What happens at the end of an investigation will vary with the circumstances.
Actions might include:
o Commencing Code of Conduct proceedings under the Public Service Act
o Implementing or changing policies, procedures or practices
o Conducting training and awareness sessions for staff.
Did APSC mishandle the matter?
This investigation was finalised in 2020 and we were only made recently aware that a
complaint has been made about the handling of this matter.
The Commonwealth Ombudsman is looking into it – and that is appropriate.
We are waiting for the outcome of the Commonwealth Ombudsman’s preliminary inquiry.
BACKGROUND
MEDIA
8 February 2022, ‘Untried lawyers score key positions’,
The Australian. Article alleges that two
‘untried and underqualified’ candidates were appointed to ‘high paid, senior positions’ by the
Federal Court of Australia The article quotes from a ‘confidential Australian Public Service
Commission investigation’ into the appointments. Quotes from the Commission report – which was a
report on a public interest disclosure – state that the investigation found that there had been a
breach of the
Public Service Act 1999 in relation to one of the recruitment processes that led to the
appointment of one of the candidates because ‘all eligible members of the community were not
given a reasonable opportunity to apply to perform the relevant duties’. Other quotes from the
report state that there was found to be one instance of disclosable conduct in relation to the
appointment of one of the candidates to the position of National Registrar because, on the balance
of probabilities, the candidate did not hold an essential qualification for the position.
state that the which found. <the-australian-20220207.pdf (streem.com.au) >
9 February 2022, ‘Federal Court boss warned on job rule sidestep’,
The Australian. Article discusses
concerns held by the now General Counsel of the Federal Court of Australia about recruitment
processes by the Federal Court where candidates were appointed at, but paid above, a specific
classification level. The article refers to the practice of broadbanding, implying that there was
broadbanding of SES and Legal 2 positions in the relevant recruitment processes and noting that
pursuant to legislation (
Public Service Classification Rules 2000) SES positions cannot be
broadbanded. The article quotes from a report by the Commission into the recruitment processes
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whether or not conduct an investigation into the handling of the
complaint.
14 January 2022
The Commission provided the requested documents to the
Commonwealth Ombudsman, who have advised that it will contact
the Commission again in mid-February.
Giorgina Strangio
Integrity, Performance and
02 6202 3544
s 47F
Employment Policy
Assistant Commissioner
s 47F
Integrity
s 47F
Consultation
s 47F
s 47F
s 47F
Legal Team
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