All document sent and or received by Darrin Moy in relation to the agency determination prepared for Murray Belcher in his capacity as the National Judicial Registrar & District Registrar - QLD

The request was refused by Federal Court of Australia.

Dear Federal Court of Australia,

This is a request for documents made under the Freedom of Information Act 1982. All document can be sent to me by email.

I request access to all documents, including emails, sent and or received, between 1 June 2018 and 31 December 2018, by Darrin Moy in relation to the agency determination prepared for Murray Belcher in his capacity as the National Judicial Registrar & District Registrar of the Queensland District Registry of the Federal Court.

Yours faithfully,

raphael

External FOI, Federal Court of Australia

1 Attachment

OFFICIAL
Dear Raphael

Please find attached correspondence from the Federal Court of Australia.

Kind regards

FOI Officer
Federal Court of Australia

show quoted sections

External FOI, Federal Court of Australia

1 Attachment

OFFICIAL
Dear Raphael

Please find attached correspondence from the Federal Court of Australia.

Kind regards

FOI Officer
Federal Court of Australia

show quoted sections

External FOI, Federal Court of Australia

1 Attachment

OFFICIAL
Dear Raphael

Please find attached correspondence from the Federal Court of Australia.

Kind regards

FOI Officer
Federal Court of Australia

show quoted sections

Dear B Henderson,

Please pass this on to the person who conducts Freedom of Information reviews.

I am writing to request an internal review of Federal Court of Australia's handling of my FOI request 'All document sent and or received by Darrin Moy in relation to the agency determination prepared for Murray Belcher in his capacity as the National Judicial Registrar & District Registrar - QLD'.

In your decision letter you have identified two documents sent or received by Darrin Moy in relation to the agency determination prepared for Murray Belcher in his capacity as the National Judicial Registrar & District Registrar of the Queensland District Registry of the Federal Court. Those documents are:

a) an email chain dated 31 October 2018 with one attachment, and
b) an email chain commencing 29 October 2018 and concluding 31 October 2018.

You decided to refuse access to those documents on the basis of four conditional exemptions, being the conditional exemptions under ss 47C, 47E(c), 47E(d) and 47F of the FOI Act.

The conditional exemptions under ss 47C, 47E(c) and 47E(d) of the FOI Act do not apply to those documents. I also doubt that the conditional exemption under s 47F applies to those documents, but if it does, the public interest is in providing the documents.

The most convincing assessment on this website on the interpretation of ss 47C, 47E(c) and 47E(d) of the FOI Act is found here - https://www.righttoknow.org.au/request/u...

Essentially:

1) a document cannot be conditionally exempt if the the deliberative matter in the document contains evidence of deliberations for unlawful ends or the document has come into existence as a result of, or in the furtherance of, unlawful conduct;
2) a conditional exemption cannot apply to a document on the grounds of a substantial adverse effect on the management or assessment of personnel by the Commonwealth or by an agency if the document has come into existence as a result of, or in the furtherance of, unlawful conduct because management or assessment of personnel by the Commonwealth or by an agency does not include unlawful management or unlawful assessment;
3) a conditional exemption cannot apply to a document on the ground of a substantial adverse effect on proper and efficient conduct of the operations of an agency because documents disclosing improper and or inefficient conduct do not fall within the scope of proper and efficient conduct of the operations of an agency (also see FOI Guidelines para 6.123).

Murray Belcher applied for an SES Band 1 National Judicial Registrar & District Registrar position in Queensland (https://www.righttoknow.org.au/request/d...).

The vacancy he applied for was vacancy NN 10725159 published in the Public Service Gazette PS19 of 2018 (https://www.righttoknow.org.au/request/d...).

Murray Belcher was selected by a selection panel consisting of Sia Lagos, David Pringle and Andrea Jarratt (the same people who selected Caitlin Wu for the NCF Registrar position (https://www.righttoknow.org.au/request/u...), and the same people who Kate McMullan of the APSC claimed had contravened the Public Service Act 1999 ("Untried lawyers score key positions" published on 8 February 2022 in The Australian)) for promotion to the National Judicial Registrar & District Registrar - QLD role (https://www.righttoknow.org.au/request/d...).

The classification of that National Judicial Registrar & District Registrar - QLD role was SES Band 1 when the selection panel chose Murray Belcher (https://www.righttoknow.org.au/request/d...).

Sia Lagos endorsed the recommendations of the selection panel as the delegate of the Agency Head (https://www.righttoknow.org.au/request/d...).

Ms Kerryn Vine Camp was the Australian Public Service Commissioner's representative in respect of the SES selection process that saw Murray Belcher selected as the SES Band 1 National Judicial Registrar & District Registrar - QLD by Sia Lagos, David Pringle and Andrea Jarratt (https://www.righttoknow.org.au/request/d...).

Ms Vine Camp, in accordance with the Australian Public Service Commissioner's Directions 2016, certified that the selection process complied with the Public Service Act and Australian Public Service Commissioner's Directions 2016 on 25 October 2018 (https://www.righttoknow.org.au/request/d...).

According to the article "Top judge warned of registrar overhaul" that was published in The Australian on 10 February 2022, Justice Greenwood took issue with Warwick Soden's claim that the Australian Public Service Commissioner's representative had threatened or attempted to veto Mr Belcher's promotion. Justice Greenwood stated that no such power existed. Mr Soden claimed that he was planning to reclassify the National Judicial Registrar & District Registrar - QLD role to get around the need for the Public Service Commissioner's representative to participate in the selection process.

First, that is unlawlful. The assessment and classification of groups of duties (i.e. a role) is by reference to objective standards set by the Australian Public Service Commissioner and trying to cheat a non-existent veto power can never be the basis for reclassifying a role. Second, there is no evidence that the role was reclassified. On the contrary, it appears that the role remained classified at the SES Band 1 classification and that the Australian Public Service Commissioner's representative participated in the selection process and certified it.

Despite these things, Murray Belcher was allocated a classification of Executive Level 2 under rule 6 of the Public Service Classification Rules 2000. Darrin Moy prepared an agency agreement that denied Mr Belcher his law SES classification under rule 6 of the Public Service Classification Rules 2000. Darrin Moy prepared a document that effectively allocated an EL2 classification to Mr Belcher so that the scarce SES Band 1 classification could, as Justice Greenwood put it, be taken somewhere else in the organisation.

The agency determination, which was attached to the the email chain dated 31 October 2018, has been reproduced on this website - https://www.righttoknow.org.au/request/m....

In case anybody missed it, the text of the agency determination is reproduced below:

"AGENCY DETERMINATION 2018/8

I, Warwick Soden, Agency Head, Federal Court of Australia, acting under subsection 24(1) of the Public Service Act (the Act) make the following determination.

Dated: 31-10-2018 ...

1. CITATION

1.1 This determination may be cited as Agency Determination 2018/8.

2. COMMENCEMENT

2.1 This determination will take effect from the date it is signed by the Agency Head.

3. EMPLOYEE OR EMPLOYEES COVERED

3.1 This determination covers the following employee: Murray Belcher

4. CLASSIFICATION

4.1 Classification level: EL/Legal 2

5. REMUNERATION

5.1 Base Salary and Salary for Superannuation Purposes

The Employee's base salary is [mercifully redacted] per annum.

This Agency Determination 2018/8 will operate in conjunction with the prevailing Australian Workplace Agreement (AWA).

6. REVIEW OF DETERMINATION

This determination will be reviewed as necessary in light of government policy, between the employee and the Agency.

[End]"

On 29 October 2018, Mr Belcher sent an email to Mr Soden, copying Darrin Moy. In that email Mr Belcher said:

"Dear Warwick,

I refer to our telephone discussion last Friday ...

My understanding from our conversation is that Darrin Moy will now reduce the terms of the proposal to writing for my consideration and acceptance ..."

On 31 October 2018, Mr Moy sent Mr Belcher and Mr Soden an email, and copied Mr Matthew Asquith, in which he stated:

"Dear Murray

I hope all is well. I have discussed this with Warwick this morning. As you have an AWA and this does not link to the prevailing EA, there is no capacity to vary your terms with an IFA. I have instead drafted an Agency Determination which varies your base salary and will operate in addition to the AWA. If you need to discuss please call if not I will ask Warwick to sign. The intention is for this Determination to apply from tomorrow, which is the first day after your acting arrangements cease

Kind regards
Darrin"

On 31 October 2018, Mr Belcher asked Mr Moy for "the signed and dated version" of the Agency Determination, which Mr Moy provided to Mr Belcher by email.

Of course, it was against the law for Mr Soden to allocate anything other than an SES Band 1 classification to Mr Belcher under rule 6 of the Public Service Classification Rules 2000 given that Mr Belcher was selected for promotion, by the selection panel consisting of Sia Lagos, David Pringle and Andrea Jarratt, to an SES Band 1 National Judicial Registrar & District Registrar - QLD rol, and given that the selection process was certified by Ms Kerry Vine Camp, the First Assistant Commissioner of the APSC and the Australian Public Service Commissioner's representative in respect of the selection process that saw Mr Belcher selected for promotion to the Senior Executive Service of the Australian Public Service.

Mr Moy was complicit in the conspiracy to deny Mr Belcher lawful promotion to the Senior Executive Service. He deliberately prepared a document that would unlawfully deny Mr Belcher his rightful SES Band 1 classification, which he secured on the basis of a merit based selection process that was certified by the First Assistant Commissioner of the Australian Public Service Commission.

The documents that you claim are the subject of the conditional exemption that you have listed are, for the reasons set out above and on the basis of the information set out, not subject to the conditional exemptions in ss 47C, 47E(c) and 47E(d). Accordingly, the public interest assessment you carried out on the basis of your false claims that ss 47C, 47E(c) and 47E(d) apply to the documents is pointless.

I request an internal review of your decision because I challenge the claims that ss 47C, 47E(c) 47E(d), and 47F apply to the documents identified.

If the person conducting the internal review is stupid enough to claim that my contentions are "baseless", "unwarranted", "unsubstantiated" or something like that, I will consider uploading the evidence to this website for the benefit of the Federal Court and the Australian public.

A full history of my FOI request and all correspondence is available on the Internet at this address: https://www.righttoknow.org.au/request/a...

Yours faithfully,

raphael

External FOI, Federal Court of Australia

OFFICIAL
Dear Raphael,

I acknowledge receipt of your request below for an internal review of the decision made by Ms Henderson on behalf of the Federal Court of Australia and dated 30 June 2022.

Kind regards

FOI Officer
Federal Court of Australia

show quoted sections

External FOI, Federal Court of Australia

1 Attachment

OFFICIAL
Dear Raphael,

Please find attached correspondence from the Federal Court of Australia.

Kind regards,

FOI Officer
Federal Court of Australia

show quoted sections

Federal Court of Australia

 
 
  [1]Office of the Australian Information Reference Code:  
Commissioner ICR_10-50257160-2841
 

 
You submitted a form called: FOI Review_
 
Your form reference code is: ICR_10-50257160-2841

To check the progress of your submission and/or confirm it has been
received you should contact the agency that provides the form. These
details are displayed below.
 
 
Office of the Australian Information Commissioner
[2]http://www.oaic.gov.au | [3]1300 363 992 | [4][email address]
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References

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3. file:///tmp/tel:1300 363 992
4. mailto:[email address]

Federal Court of Australia

 
 
  [1]Office of the Australian Information Reference Code:  
Commissioner ICR_10-50257160-2841
 

 
You submitted a form called: FOI Review_
 
Your form reference code is: ICR_10-50257160-2841

To check the progress of your submission and/or confirm it has been
received you should contact the agency that provides the form. These
details are displayed below.
 
 
Office of the Australian Information Commissioner
[2]http://www.oaic.gov.au | [3]1300 363 992 | [4][email address]
GPO Box 5218, Sydney NSW 2001
 
 
Note: Please do not reply to this auto-generated email.
 

References

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2. http://www.oaic.gov.au/
3. file:///tmp/tel:1300 363 992
4. mailto:[email address]

Federal Court of Australia

1 Attachment

Our reference: MR22/01258

 

By email: [FOI #8840 email]

Receipt of your IC review application  

Thank you for your application for Information Commissioner Review (IC
review).

The Office of the Australian Information Commissioner (OAIC) is
considering your application.

If you wish to advise the OAIC of any changes to your circumstances,
including your contact details or if your FOI request has been resolved,
please write to [email address] and quote MR22/01258.

 

Yours sincerely

 

Freedom of Information Regulatory Group

Office of the Australian Information Commissioner

 

 

 

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