Certification issued by Kerryn Vine Camp in relation to SES selection processes in Federal Court

The request was partially successful.

Dear Federal Court of Australia,

Kerryn Vine Camp was the Australian Public Service Commissioner’s representative on the selection panels SES1 and SES2 positions in the Federal Court in 2018 (see – https://www.righttoknow.org.au/request/v...).

Under the FOI Act, I want access to the following documents:

i. the certification issued by Kerryn Vine Camp that the selection processes for the “National Judicial Registrar & District Registrar – QLD (SES1)” complied with the Public Service Act 1999 and the Australian Public Service Commissioner’s Directions 2016; and
ii. the certification issued by Kerryn Vine Camp that the selection processes for the “National Judicial Registrar & District Registrar – WA (SES1)” complied with the Public Service Act 1999 and the Australian Public Service Commissioner’s Directions 2016; and
iii. the certification issued by Kerryn Vine Camp that the selection processes for the “National Judicial Registrar & District Registrar – VIC (SES1)” complied with the Public Service Act 1999 and the Australian Public Service Commissioner’s Directions 2016; and
iv. the certification issued by Kerryn Vine Camp that the selection processes for the “Senior National Judicial Registrar (SES2)” complied with the Public Service Act 1999 and the Australian Public Service Commissioner’s Directions 2016.

I also want access to the following documents:

v. the certifications issued by the Australian Public Service Commissioner’s representative noting compliance with the Public Service Act 1999 and the Australian Public Service Commissioner’s Directions 2016 for the National Judicial Registrar positions Susan O’Connor, Claire Gitsham and Matthew Benter were recruited to fill.

Please provide the certifications by return email.

Yours faithfully,

Marek

External FOI, Federal Court of Australia

1 Attachment

OFFICIAL
Dear Sir/Madam

Please find attached correspondence from the Federal Court of Australia.

Kind regards

FOI Officer
Federal Court of Australia

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External FOI, Federal Court of Australia

1 Attachment

OFFICIAL
Dear Sir/Madam

Please find attached correspondence from the Federal Court of Australia.

Kind regards

FOI Officer
Federal Court of Australia

show quoted sections

Dear Ms Hammerton Cole,

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 'Certification issued by Kerryn Vine Camp in relation to SES selection processes in Federal Court'.

I requested the certification issued by the Australian Public Service Commissioner’s representative noting compliance with the Public Service Act 1999 and the Australian Public Service Commissioner’s Directions 2016 for the National Judicial Registrar positions Susan O’Connor was recruited to fill. According to PA2925-06/9 on the Federal Court's disclosure log, Susan O'Connor was recruited from outside of the Australian Public Service in 2018 and was engaged on 19 November 2018. She was engaged in a SES Band 1 National Judicial Registrar position. You claim to have provided access to the SES Band 1 National Judicial Registrar certification issued by the Australian Public Service Commissioner’s representative noting compliance with the Public Service Act 1999 and the Australian Public Service Commissioner’s Directions 2016 but you have not done so. Please provide the relevant document.

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

Yours faithfully,

Marek

External FOI, Federal Court of Australia

OFFICIAL
Dear Marek

I acknowledge receipt of your request below for an internal review of the decision made by Registrar Hammerton Cole on behalf of the Federal Court of Australia and dated 5 May 2022.

Kind regards

FOI Officer
Federal Court of Australia

show quoted sections

External FOI, Federal Court of Australia

1 Attachment

OFFICIAL
Dear Marek

Please find attached correspondence from the Federal Court of Australia.

Kind regards

FOI Officer
Federal Court of Australia

show quoted sections

Marek left an annotation ()

The problem with Nicola Colbran's decision is that not one of the certificates addresses the terms of paragraph v my FOI request or my internal review request.

Paragraph v of my FOI request was:

I also want access to the following documents:

v. the certifications issued by the Australian Public Service Commissioner’s representative noting compliance with the Public Service Act 1999 and the Australian Public Service Commissioner’s Directions 2016 for the National Judicial Registrar positions Susan O’Connor, Claire Gitsham and Matthew Benter were recruited to fill.

The SES Band 2 Senior National Judicial Registrar certification cannot fall within the scope of my request because it is not for the National Judicial Registrar positions Susan O’Connor, Claire Gitsham and Matthew Benter were recruited to fill. The National Judicial Registrar roles are only classified at the SES Band 1 and EL2 classifications (The position descriptions for the National Judicial Registrar roles are on the Federal Court’s disclosure log at PA2926-06/40, and both those position descriptions show that the National Judicial Registrar roles are classified as EL2 or SES1). Therefore, an SES Band 2 classified role is by definition outside the scope of the request.

The Commissioner’s Representative Certificate – National Judicial Registrar and District Registrar, WA does not fall within the scope of my request because it is not the National Judicial Registrar position that Susan O’Connor, Claire Gitsham and Matthew Benter were recruited to fill. That position was filled by Russell Trott (https://www.righttoknow.org.au/request/d...). Therefore, the Commissioner’s Representative Certificate – National Judicial Registrar and District Registrar, WA cannot be the certification issued by the Australian Public Service Commissioner’s representative noting compliance with the Public Service Act 1999 and the Australian Public Service Commissioner’s Directions 2016 for the National Judicial Registrar positions Susan O’Connor, Claire Gitsham and Matthew Benter were recruited to fill.

The Commissioner’s Representative Certificate – National Judicial Registrar and District Registrar, QLD does not fall within the scope of my request because it is not the National Judicial Registrar position that Susan O’Connor, Claire Gitsham and Matthew Benter were recruited to fill. That position was filled by Murray Belcher (https://www.righttoknow.org.au/request/d...). Therefore, the Commissioner’s Representative Certificate – National Judicial Registrar and District Registrar, QLD cannot be the certification issued by the Australian Public Service Commissioner’s representative noting compliance with the Public Service Act 1999 and the Australian Public Service Commissioner’s Directions 2016 for the National Judicial Registrar positions Susan O’Connor, Claire Gitsham and Matthew Benter were recruited to fill.

The Commissioner’s Representative Certificate – National Judicial Registrar and District Registrar, VIC does not fall within the scope of my request because it is not the National Judicial Registrar position that Susan O’Connor, Claire Gitsham and Matthew Benter were recruited to fill. That position was filled by Tim Luxton (Public Service Gazette PS 43 of 2018 – Promotion N.N. 10736921). Therefore, the Commissioner’s Representative Certificate – National Judicial Registrar and District Registrar, QLD cannot be the certification issued by the Australian Public Service Commissioner’s representative noting compliance with the Public Service Act 1999 and the Australian Public Service Commissioner’s Directions 2016 for the National Judicial Registrar positions Susan O’Connor, Claire Gitsham and Matthew Benter were recruited to fill.

Therefore, none of the documents provided by the original decision maker are within the scope fo paragraph v of my request. The internal review decision maker decision said:

Your review request makes reference to the decision to provide the Commissioner’s Representative Certificate – Senior National Judicial Registrar in response to item (v) of the FOI request. I am satisfied that the decision maker was correct to identify and provide this document. In addition, the Commissioner’s Representative Certificate – National Judicial Registrar and District Registrar, WA and the Commissioner’s Representative Certificate – National Judicial Registrar and District Registrar, VIC are within the scope of item (v) of your FOI request. These are the three Certificates that relate to the individuals named in item (v) of your FOI request, although I acknowledge the Certificates do not contain the sole position title of “National Judicial Registrar”.

Each of these Certificates was provided to you via the decision letter dated 5 May 2022, subject to the redaction of the signature of a public servant.

The decision is flawed because, contrary to her claims that the certificates were within the scope of item (v) of my request, it is clear the certificated are not within scope. The internal review decision maker has failed to properly read my request. It is not enough that the names of the individuals relate to some certificates. The request was for the certificates for the National Judicial Registrar positions Susan O’Connor, Claire Gitsham and Matthew Benter were RECRUITED TO FILL. Clearly, Susan O’Connor, Claire Gitsham and Matthew Benter were not recruited to fill an SES Band 2 Senior National Judicial Registrar role, or the SES Band 1 National Judicial Registrar & District Registrar roles in Victoria, Western Australia or Queensland.

Federal Court of Australia

 
 
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Federal Court of Australia

1 Attachment

Our reference: MR22/01176

 

By email: [FOI #8564 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 MR22/01176.

 

Yours sincerely

 

Freedom of Information Regulatory Group

Office of the Australian Information Commissioner

 

 

 

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OAIC - FOI DR,

5 Attachments

Our reference: MR22/01176

 

Mr Marek Paderewski

By email: [1][FOI #8564 email]

 

Receipt of your IC review application

 

Dear Mr Paderewski

 

Thank you for your application for Information Commissioner Review (IC
review), received on 16 July 2022.

 

We understand that you are seeking a review of the internal review
decision made by the Federal Court of Australia (the Federal Court) on 22
June 2022, in which it notified you that no further documents relevant to
your FOI request, other than those identified in its original decision,
exist. The relevant issue to be considered in this review (noting that the
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the scope your internal review request), is therefore whether the Federal
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Your application has now been referred for assessment by a senior member
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Should you wish to contact us in the interim, please email us at
[2][email address]. Please include the reference number MR22/01176 in
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Kind Regards

 

Tania Strathearn

[3][IMG]   Intake and Early Resolution Team

Freedom of Information Regulatory Group

Office of the Australian Information
Commissioner

GPO Box 5218 Sydney NSW 2001  |
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Dear Tania,

Thank you.

Yours sincerely,

Marek

Dear Tania,

Further to my thanks, it is important to note that the issue on review is not just a question of whether the Federal Court has taken all reasonable steps to identify documents relevant to my request, prior to making its internal review decision.

There are also the issues of whether the proposition advanced by Ms Colbran in the following passage:

"I am satisfied that the decision maker was correct to identify and provide this document. In addition, the Commissioner’s Representative Certificate – National Judicial Registrar and District Registrar, WA and the Commissioner’s Representative Certificate – National Judicial Registrar and District Registrar, VIC are within the scope of item (v) of your FOI request. These are the three Certificates that relate to the individuals named in item (v) of your FOI request, although I acknowledge the Certificates do not contain the sole position title of 'National Judicial Registrar'",

is

a) relevant to my request in as much as it meets the terms of my request; and
b) true.

My contention is that Ms Colbran was not correct in claiming that the identified documents were within the scope of my FOI request because those documents do not meet the terms of my request. In other words, Ms Colbran's claim that "the decision maker was correct to identify and provide this document. In addition, the Commissioner’s Representative Certificate – National Judicial Registrar and District Registrar, WA and the Commissioner’s Representative Certificate – National Judicial Registrar and District Registrar, VIC are within the scope of item (v) of your FOI request" is false. If I am correct in this regard, then Ms Colbran's decision must be overturned. The correct finding would be that:

a) no documents exist; or
b) if documents that fall within the scope of the request do exist, then those documents should be provided.

As it stands, Ms Colbran's claim that "the decision maker was correct to identify and provide this document. In addition, the Commissioner’s Representative Certificate – National Judicial Registrar and District Registrar, WA and the Commissioner’s Representative Certificate – National Judicial Registrar and District Registrar, VIC are within the scope of item (v) of your FOI request" is untenable because it does not meet the terms of my FOI request, and the Information Commissioner should make such a finding for the reasons I have recorded here: https://www.righttoknow.org.au/request/c....

Yours sincerely,

Marek

Dear Tania,

By way of update, Nicola Colbran, National Judicial Registrar & District Registrar, made a decision on internal review today.

The relevant access applicant requested the following document under the FOI Act (https://www.righttoknow.org.au/request/m...

the Australian Public Service Commissioner's representative's certification in relation to the SES Band 1 National Judicial Registrar selection process that saw Ms Susan O'Connor selected as an ongoing, full-time SES Band 1 National Judicial Registrar on 19 November 2018 (as to which, please refer to "category D" of the document associated with request to of PA2925-06/9 on the disclosure log of the Federal Court: see https://fedcourt.gov.au/disclosurelog).

On internal review (https://www.righttoknow.org.au/request/m...), Ms Colbran made the following decision about that document:

The decision dated 30 June 2022 identified one document within the scope of your request. However, I am of the view that the document identified is not within scope as they do not relate to both the role the person applied for and that they were selected to fill. I am satisfied that all reasonable steps have been taken to find the documents you have requested, but the documents cannot be found or do not exist (see s 24A(1) of the FOI Act). I therefore refuse your access request.

You will notice that my IC review request relates to the same document. I requested:

the certifications issued by the Australian Public Service Commissioner’s representative noting compliance with the Public Service Act 1999 and the Australian Public Service Commissioner’s Directions 2016 for the National Judicial Registrar positions Susan O’Connor, Claire Gitsham and Matthew Benter were recruited to fill.

It is plainly the case that the Federal Court does not have a certification issued by the Australian Public Service Commissioner’s representative noting compliance with the Public Service Act 1999 and the Australian Public Service Commissioner’s Directions 2016 for the SES Band 1 National Judicial Registrar position Susan O’Connor was recruited to fill.

Why there would be three certifications issued by the Australian Public Service Commissioner’s representatives noting compliance with the Public Service Act 1999 and the Australian Public Service Commissioner’s Directions 2016 for the remaining TWO National Judicial Registrar positions that Ms Gitsham and Mr Benter were recruited to fill is beyond me.

I think that Ms Colbran's claim that:

"the decision maker was correct to identify and provide this document. In addition, the Commissioner’s Representative Certificate – National Judicial Registrar and District Registrar, WA and the Commissioner’s Representative Certificate – National Judicial Registrar and District Registrar, VIC are within the scope of item (v) of your FOI request"

is, in all likelihood, false.

Yours sincerely,

Marek

OAIC - FOI DR,

5 Attachments

Our reference: MR22/01176

 

Dear Marek

 

Thank you for your submissions dated 19 August and 29 August 2022, in
support of your application for IC review.

 

We will update you on next steps following the assessment of your
application.

 

Kind regards

 

Tania Strathearn

[1][IMG]   Intake and Early Resolution Team

Freedom of Information Regulatory Group

Office of the Australian Information
Commissioner

GPO Box 5218 Sydney NSW 2001  |
 [2]oaic.gov.au

1300 363 992 [3][email address]
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show quoted sections

Dear Tania,

Thank you for your message. If any other information relevant to my IC request comes to light, I will draw that information to the attention of the OAIC.

Yours sincerely,

Marek

OAIC - FOI DR,

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Dear Tania,

You’ll recall that I promised to keep you up to date with information relevant to my IC review request.

On 24 July 2022 an FOI request was put to the Federal Court for, among other things, “the certification that the Australian Public Service Commissioner's representative issued in the course of his or her participation in the selection process for the SES Band 1 National Judicial Registrar role that Susan O'Connor succeeded in securing.”

The request can be seen here: https://www.righttoknow.org.au/request/d...

On 8 August 2022 the FOI Officer in the Federal Court claimed that the access applicant had to pay a deposit before any work was done to progress the FOI request. On 14 August the access applicant, amusingly, forced the FOI Officer’s hand (see https://www.righttoknow.org.au/request/d...) and B Henderson of the Federal Court:

i) made a decision that “the certification that the Australian Public Service Commissioner's representative issued in the course of his or her participation in the selection process for the SES Band 1 National Judicial Registrar role that Susan O'Connor succeeded in securing” does not exist; and
ii) decided “pursuant to section 29 of the FOI Act, I find that you are not liable to pay either the deposit or the charge estimated in the letter dated 8 August 2022.”

This decision again goes a long way to proving that the statement:

"the decision maker was correct to identify and provide this document. In addition, the Commissioner’s Representative Certificate – National Judicial Registrar and District Registrar, WA and the Commissioner’s Representative Certificate – National Judicial Registrar and District Registrar, VIC are within the scope of item (v) of your FOI request"

is false.

Yours sincerely,

Marek

OAIC - FOI DR,

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Dear Tania,

You will recall that I promised to keep you up to date with information relevant to my IC review request.

You will also recall that I requested “the certifications issued by the Australian Public Service Commissioner’s representative noting compliance with the Public Service Act 1999 and the Australian Public Service Commissioner’s Directions 2016 for the National Judicial Registrar positions Susan O’Connor, Claire Gitsham and Matthew Benter were recruited to fill” as part of my FOI request.

Two recent FOI requests to the Federal Court have caught my eye:

https://www.righttoknow.org.au/request/d... and

https://www.righttoknow.org.au/request/d....

FOI REQUEST 1, WHICH RELATES TO MATTHEW BENTER

According to Ray B1, there is a document dated 19 October 2018 and titled “Offer of Engagement – Ongoing APS Employee”. That document records an offer of employment to Mr Matthew Benter. The document provides:

“19 October 2018

Mr Matthew Benter …

Dear Matthew,

Offer of Engagement – Ongoing APS Employee

I am pleased to advise you have been offered ongoing employment in the Federal Court of Australia. The details and conditions of your ongoing employment are outlined in this letter.

1. Position Details

Jurisdiction ---------- Federal Court of Australia
Job Title --------- National Judicial Registrar
Location ----------- Perth, WA
Classification ---------- Legal 2 (EL 2)
Salary ----------- $150,391 per annum, plus superannuation
Position Number ---------- 1645
Status ---------- Ongoing, Full-Time
Commencement Date ---------- 19 November 2018

2. Terms and Conditions of Employment

The terms and conditions of the employment are as set out in the Federal Court of Australia Enterprise Agreement 2018-2021, and any enterprise agreement that replaced that agreement.
Other terms and conditions of your employment are set out in Commonwealth legislation, including the Public Service Act 1999.
…”

If it is true that Matthew Benter’s classification is Executive Level 2, as claimed by Ray B1, then Ms Colbran’s statement that: "the decision maker was correct to identify and provide this document. In addition, the Commissioner’s Representative Certificate – National Judicial Registrar and District Registrar, WA and the Commissioner’s Representative Certificate – National Judicial Registrar and District Registrar, VIC are within the scope of item (v) of your FOI request" cannot be correct. It cannot be correct because the Australian Public Service Commissioner never sends a representative to participate in a selection process for an Executive Level 2 classified vacancy. The Australian Public Service Commissioner or his representative only participate in SES classified vacancy selection processes: see section 21 of the Australian Public Service Commissioner’s Directions 2016.

FOI REQUEST 1, WHICH RELATES TO CLAIRE GITSHAM

According to Ray B1, there exists a document dated 12 October 2018 and titled “Offer of Engagement – Ongoing APS Employee”. That document records an offer of employment to Ms Claire Gitsham. The document provides:

“12 October 2018

Ms Claire Gitsham …

Dear Claire,

Offer of Engagement – Ongoing APS Employee

I am pleased to advise you have been offered ongoing employment in the Federal Court of Australia. The details and conditions of your ongoing employment are outlined in this letter.

1. Position Details

Jurisdiction ---------- Federal Court of Australia
Job Title --------- National Judicial Registrar
Location ----------- Melbourne, VIC
Classification ---------- Legal 2 (EL 2)
Salary ----------- $150,391 per annum, plus superannuation
Position Number ---------- 1656
Status ---------- Ongoing, Full-Time
Commencement Date ---------- 30.1.19 (see attached email)

2. Terms and Conditions of Employment

The terms and conditions of the employment are as set out in the Federal Court of Australia Enterprise Agreement 2018-2021, and any enterprise agreement that replaced that agreement.

Other terms and conditions of your employment are set out in Commonwealth legislation, including the Public Service Act 1999.

6. Acceptance of the Offer

… If you have any questions regarding your employment, please do not hesitate to contact Darrin Moy …”

If it is true that Claire Gitsham’s classification is Executive Level 2, as claimed by Ray B1, then Ms Colbran’s statement that: "the decision maker was correct to identify and provide this document. In addition, the Commissioner’s Representative Certificate – National Judicial Registrar and District Registrar, WA and the Commissioner’s Representative Certificate – National Judicial Registrar and District Registrar, VIC are within the scope of item (v) of your FOI request" cannot be correct. It cannot be correct because the Australian Public Service Commissioner never sends a representative to participate in a selection process for an Executive Level 2 classified vacancy. The Australian Public Service Commissioner or his representative only participate in SES classified vacancy selection processes: see section 21 of the Australian Public Service Commissioner’s Directions 2016.

I think what Ray B1 has stated further supports my contention that the statement, in Registrar Colbran’s decision, that "the decision maker was correct to identify and provide this document. In addition, the Commissioner’s Representative Certificate – National Judicial Registrar and District Registrar, WA and the Commissioner’s Representative Certificate – National Judicial Registrar and District Registrar, VIC are within the scope of item (v) of your FOI request" is false.

UPDATES ON DEVELOPMENTS

Have you had any luck getting the Federal Court to co-operate with the IC review investigation? Has the Federal Court provided you or the OAIC with any submissions on the matter? If you have received the Federal Court’s submissions, I would appreciate being provided with them.

Also, is the OAIC in a position to provide me with an update on MR22/01248?

Yours sincerely,

Marek

OAIC - FOI DR,

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Dear Mr Paderewski
Thank you for your email requesting an update on the status of your
matter.
I confirm that your matter has been progressing through the initial stages
of an IC review. The initial stages of an IC review may include assessment
by senior member of the FOI Dispute Resolution team, conducting
preliminary inquiries with an agency, requesting submissions from an
agency in support of their FOI decision or requesting documents at issue.
Further information on IC reviews can be found in Part 10 of the FOI
Guidelines and here:
[1]https://www.oaic.gov.au/freedom-of-infor...
Once this stage is completed, the OAIC will contact you regarding next
steps.
Kind regards

Carl English
Intake and Early Resolution Team
[2][IMG]   Freedom of Information Regulatory Group
Office of the Australian Information Commissioner
GPO Box 5288 Sydney NSW 2001  |  [3]oaic.gov.au
1300 363 992  |  [4][email address]

[5][IMG] | [6][IMG] | [7][IMG] |    

 
 
 
 
 
 

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Dear Mr English,

Your email isn't illuminating. Frankly, it's irksome.

I'm not interested in the possible permutations of the initial stages of an IC review process. What I am after is information about actualities. So, for example, when I ask "Has the Federal Court provided you or the OAIC with any submissions on the matter?", the appropriate answers are "Yes" or "No", and if the answer is "No", I'd appreciate an explanation as to why that is the case given that the original FOI request was made to the Federal Court over 7 months ago.

Your response that "[t]he initial stages of an IC review may include assessment by senior member of the FOI Dispute Resolution team, conducting preliminary inquiries with an agency, requesting submissions from an agency in support of their FOI decision or requesting documents at issue" is of no assistance because:

a) it does not respond to my questions;
b) it is a response that contains generic information that is readily accessible to anybody who cares to check the OAIC's website;
c) it does not set out the actualities of the progress made in respect of my FOI requests.

I understand that the OAIC has a backlog of cases. anybody with an interest in the OAIC's work knows that has been the case for years. You don't need to shy away from saying "No, the OAIC has not contacted the Federal Court because the OAIC is swamped with work." Honesty and candour are the best policies. An honest and candid response is infinitely preferable to some mealy-mouthed response that tells me nothing of value.

So, again, I ask:

a) Have you had any luck getting the Federal Court to co-operate with the IC review investigation?
b) Has the Federal Court provided you or the OAIC with any submissions on the matter? If you have received the Federal Court’s submissions, I would appreciate being provided with them.
c) Is the OAIC in a position to provide me with an update on MR22/01248?

Please make an effort to answer my queries rather than punt me away with some canned response that is of no value to me or anybody who chooses to read your response.

Yours sincerely,

Marek

OAIC - FOI DR,

Our reference: MR22/01176
Agency reference: TBC
Mr Marek Paderewski
By email: Marek [FOI #8564 email]>
Dear Mr Paderewski
Thank you for your application for review. We have today informed the Federal Court of Australia that the Information Commissioner will undertake an IC review and requested information to assist with progressing the review.
We will provide you with an update when we have heard from the Federal Court of Australia.
Kind regards
Samra Karim

Intake and Early Resolution Team
Freedom of Information Regulatory Group
Office of the Australian Information Commissioner
GPO Box 5218 Sydney NSW 2001  |  oaic.gov.au
1300 363 992 [email address]

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Dear Samra Karim,

Thank you for your useful response.

Yours sincerely,

Marek

Dear Samra Karim,

I draw your attention to an FOI decision made by B Henderson at the Federal Court – https://www.righttoknow.org.au/request/v....

On 19 November 2022, I made the following request:

Susan O’Connor has held an ongoing, full-time, SES Band 1 classified National Judicial Registrar role in the Federal Court of Australia since 19 November 2018.

Under the FOI Act, I request access to the ongoing, full-time, SES Band 1 classified National Judicial Registrar vacancy notification, published in the Public Service Gazette, that Susan O’Connor was selected to fill in the course of a merit based selection process for that ongoing, full-time, SES Band 1 classified National Judicial Registrar vacancy.

B Henderson has refused access to the request vacancy notification because the document does not exist. It's practically impossible to claim that the document cannot be found because if it had been published in the Public Service Gazette, a copy of the vacancy notification could and would have been sourced from the Gazette.

According to the Federal Court’s documents, Susan O’Connor was recruited as a National Judicial Registrar with an SES Band 1 classification from outside the Australian Public Service (see document “Request 2” associated with PA2925-06/9 on the Federal Court of Australia’s FOI disclosure log: www.fedcourt.gov.au/disclosurelog).

If the vacancy was not notified, how could a person recruited from outside the Australian Public Service have applied for the vacancy? If the vacancy was not notified, how could the Australian Public Service Commissioner have known he needed to send a representative to participate in a selection process?

I have already explained why the documents that have been provided to me are not the certifications issued by the Australian Public Service Commissioner’s representative for the SES Band 1 classified National Judicial Registrar vacancy that Susan O’Connor was selected to fill in the course of a merit based selection process. Has the Federal Court provided submissions on this matter to the OAIC?

Yours sincerely,

Marek

Dear Samra Karim,

I draw your attention to an email that I sent to you a month ago. That email has not been responded to.

I asked if the Federal Court had provided submissions to the OAIC in relation to MR22/01176: https://www.righttoknow.org.au/request/c....

I would appreciate a response to my query as soon as possible.

Yours sincerely,

Marek

OAIC - FOI DR,

1 Attachment

Dear Mr Paderewski
I apologise for the delay responding to your email of 19 December 2022.
Please find a copy of the Federal Court of Australia's submissions attached.
Your application is currently awaiting allocation to a review adviser for further assessment. Once the matter has been allocated, the review adviser will contact you to discuss the next steps.
Kind regards

Carl English
Intake and Early Resolution Team
Freedom of Information Regulatory Group
Office of the Australian Information Commissioner
GPO Box 5288 Sydney NSW 2001  |  oaic.gov.au
1300 363 992  |  [email address]

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Dear Mr English,

Thank you for providing me with the submissions that Claire Hammerton Cole prepared for the OAIC.

The meat and potatoes of the submissions are to be found in paragraphs 22 – 24.

I set them out below:

“22. Section 26 of the Directions provides that Commissioner’s Representative Certificates are only required to certify the selection of an engagement or promotion at the SES level. Therefore, there is the one (1) Commissioner’s Representative Certificate for the SES 1 ‘National Judicial Registrar’ position that one of the Registrars named in the request was recruited to fill, and there are no Commissioner’s Representative Certificates for the Executive Level 2 “National Judicial Registrar” positions that two of the Registrars named in the request were recruited to fill. With respect to those two Registrars named in the request who were not recruited to fill positions at the SES level, there are two (2) Commissioner’s Representative Certificates for the SES Band 1 ‘National Judicial Registrar and District Registrar’ positions that each of those Registrars applied for, but which were ultimately filled by other individuals.

23. The original FOI decision dated 5 May 2022 determined that one (1) document fell within the scope of paragraph (v) of the applicant’s FOI request. That document was the Commissioner’s Representative Certificate – Senior National Judicial Registrar. The original decision-maker considered that there were no other Commissioner’s Representative Certificates that fell within the scope of the request because, although two of the Registrars named in the request applied for SES 1 positions with the Court, they were ultimately engaged as Executive Level 2 employees. Therefore, those Registrars were not ultimately recruited into the SES such that a Commissioner’s Representative Certificate could apply to their engagement.

24. In contrast, the internal review decision dated 22 June 2022 determined that three (3) documents were within the scope of paragraph (v) of the applicant’s FOI request. Those documents were the Commissioner’s Representative Certificate – Senior National Judicial Registrar (as provided in the original decision) and, in addition, the Commissioner’s Representative Certificate – National Judicial Registrar and District Registrar, VIC and the Commissioner’s Representative Certificate – National Judicial Registrar and District Registrar, WA. The internal review decision-maker considered that, although two of the Registrars named in the request were not ultimately engaged at the SES level, they were candidates who applied for, and were considered as part of, the Court’s recruitment processes at the SES level. Overall, the decision-maker on internal review determined that the three (3) Commissioner’s Representative Certificates that were provided to the applicant ‘relate to the individuals named in item (v) of [the applicant’s] FOI request.’”

First, “[s]ection 26 of the Directions” has nothing to do with this FOI request. The recruitment took place in 2018 and the relevant enactment at the time was the Australian Public Service Commissioner’s Directions 2016 (Cth). That is the relevant enactment to which Registrar Claire Hammerton Cole ought to refer. Section 21 of the Australian Public Service Commissioner’s Directions 2016 (Cth) provides:

“A selection process for an SES vacancy meets the requirements of this Subdivision if, in addition to the requirements of sections 19 and 20, the following apply:

(a) the Commissioner, or a representative of the Commissioner, was a full participant in the selection process;
(b) if a representative of the Commissioner participated in the selection process—the representative certified that the selection process complied with the Act and this instrument.”

Second, Registrar Hammerton Cole’s claim that the “Commissioner’s Representative Certificates are only required to certify the selection of an engagement or promotion at the SES level” is false. The representative must certify that the selection process complied with the Public Service Act 1999 (Cth) and the Australian Public Service Commissioner’s Directions 2016 (Cth). The certification is not limited to the certification of the “engagement or promotion” at the SES level.

Third, there can only be one certification within the scope of my request, which was a request for access to “the certifications issued by the Australian Public Service Commissioner’s representative noting compliance with the Public Service Act 1999 and the Australian Public Service Commissioner’s Directions 2016 for the National Judicial Registrar positions Susan O’Connor, Claire Gitsham and Matthew Benter were recruited to fill”, because, as Claire Hammerton Cole concedes, “there are no Commissioner’s Representative Certificates for the Executive Level 2 ‘National Judicial Registrar’ positions that two of the Registrars named in the request were recruited to fill.”

According to document “Request 2”, which is associated with PA2925-06/9 on the Federal Court of Australia’s freedom of information disclosure log (see PA2925-06/9 at www.fedcourt.gov.au/disclosurelog) and is a document provided in response to an FOI request for:

“assuming the SES employee was recruited from outside the Australian Public Service during the 2018-2019 financial year or between 1 July 2019 and 12 June 2020, documents that contain the following information:

• the date the SES employee was first engaged as an SES employee in the 'single administrative entity';
• the name of the SES employee;
• the SES rank at which the employee at which the employee was engaged in the 'single administrative entity';
• the position title of the SES employee upon engagement in the 'single administrative entity';
• the primary location of employment of the SES employee in the 'single administrative entity';
• the employment status of the SES employee upon employment in the 'single administrative entity';
• if the promoted SES employee retired, resigned or was terminated in the 2018-2019 financial year and or between 1 July 2019 and 12 June 2020 from the 'single administrative entity', the date of retirement, resignation or termination and the reason.”

Susan O’Connor:

a) was recruited from outside the Australian Public Service;
b) was engaged into the agency on 19 November 2018;
c) has a position title of “National Judicial Registrar”;
d) has an SES Band 1 classification;
e) is based in New South Wales; and
f) is an ongoing, full-time employee.

If Susan O’Connor is an SES Band 1 classified National Judicial Registrar, by process of elimination, Matthew Benter and Claire Gitsham are the Executive Level 2 National Judicial Registrars, which is unsurprising given that the “Offers of Engagement” issued to both Mr Benter and Ms Gitsham identify both of them as “Legal 2 (EL2)” APS employees.

The three certifications that Nicola Colbran tried to pass off as “the certifications issued by the Australian Public Service Commissioner’s representative noting compliance with the Public Service Act 1999 and the Australian Public Service Commissioner’s Directions 2016 for the National Judicial Registrar positions Susan O’Connor, Claire Gitsham and Matthew Benter were recruited to fill” are not what I requested because, as Claire Hammerton Cole has rightly conceded, Claire Gitsham and Matthew Benter were not RECRUITED TO FILL SES NATIONAL JUDICIAL REGISTRAR POSITIONS.

There are no certifications issued by the Australian Public Service Commissioner’s representative noting compliance with the Public Service Act 1999 and the Australian Public Service Commissioner’s Directions 2016 for the National Judicial Registrar positions Claire Gitsham and Matthew Benter were recruited to fill. Nicola Colbran’s attempt to pass of certifications issued by the Australian Public Service Commissioner’s representative noting compliance with the Public Service Act 1999 and the Australian Public Service Commissioner’s Directions 2016 for the National Judicial Registrar that Claire Gitsham and Matthew Benter FAILED TO SECURE does not address the terms of my freedom of information request because I did not request access to the certifications issued by the Australian Public Service Commissioner’s representative noting compliance with the Public Service Act 1999 and the Australian Public Service Commissioner’s Directions 2016 for the National Judicial Registrar vacancies that Claire Gitsham and Matthew Benter FAILED TO SECURE. I asked for access to the certifications issued by the Australian Public Service Commissioner’s representative noting compliance with the Public Service Act 1999 and the Australian Public Service Commissioner’s Directions 2016 for the National Judicial Registrar positions Claire Gitsham and Matthew Benter were RECRUITED TO FILL. Ms Hammerton Cole’s attempts to justify Ms Colbran’s decision are entirely disingenuous because she knows exactly what I wrote in my internal review request.

On 24 May 2022, I wrote to Claire Hammerton Cole, stating:

“Dear Ms Hammerton Cole,

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 'Certification issued by Kerryn Vine Camp in relation to SES selection processes in Federal Court'.

I requested the certification issued by the Australian Public Service Commissioner’s representative noting compliance with the Public Service Act 1999 and the Australian Public Service Commissioner’s Directions 2016 for the National Judicial Registrar positions Susan O’Connor was recruited to fill. According to PA2925-06/9 on the Federal Court's disclosure log, Susan O'Connor was recruited from outside of the Australian Public Service in 2018 and was engaged on 19 November 2018. She was engaged in a SES Band 1 National Judicial Registrar position. You claim to have provided access to the SES Band 1 National Judicial Registrar certification issued by the Australian Public Service Commissioner’s representative noting compliance with the Public Service Act 1999 and the Australian Public Service Commissioner’s Directions 2016 but you have not done so. Please provide the relevant document.

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

Yours faithfully,

Marek”

My internal review request can be accessed here, for all the world to read: https://www.righttoknow.org.au/request/c....

Fourth, as I have shown, based on the information published on the Federal Court of Australia’s freedom of information disclosure log, Susan O’Connor:

a) was recruited from outside the Australian Public Service;
b) was engaged into the agency on 19 November 2018;
c) has a position title of “National Judicial Registrar”;
d) has an SES Band 1 classification;
e) is based in New South Wales; and
f) is an ongoing, full-time employee.

Aside from the fact that it is objectively apparent based on information on the Federal Court of Australia’s freedom of information disclosure log, there can be no doubt that Susan O’Connor filled an SES vacancy because Claire Hammerton Cole has conceded that point. It is readily apparent that Susan O’Connor was selected from outside the Australian Public Service to fill an SES Band 1 classified National Judicial Registrar vacancy on an ongoing, full-time basis.

As I have noted, according to section 21 of the Australian Public Service Commissioner’s Directions 2016 (Cth), “[a] selection process for an SES vacancy meets the requirements of [Subdivision Part 3, Division 1, Subdivision B – Merit-based selection processes] if, in addition to the requirements of sections 19 and 20, the following apply:

(a) the Commissioner, or a representative of the Commissioner, was a full participant in the selection process;
(b) if a representative of the Commissioner participated in the selection process—the representative certified that the selection process complied with the Act and this instrument.”

A selection process for an SES vacancy WILL NOT meet the requirements of the MERIT-BASED SELECTION subdivision in the Australian Public Service Commissioner’s Directions 2016 (Cth) UNLESS, in addition to the requirements of sections 19 and 20, the following apply:

(a) the Commissioner, or a representative of the Commissioner, was a full participant in the selection process;
(b) if a representative of the Commissioner participated in the selection process—the representative certified that the selection process complied with the Act and this instrument.

In case the geniuses in the Federal Court of Australia had not realised, the certification issued by the Australian Public Service Commissioner’s representative noting compliance with the Public Service Act 1999 and the Australian Public Service Commissioner’s Directions 2016 for the SES Band 2 classified Senior National Judicial Registrar vacancy that Susan O’Connor FAILED TO SECURE does not address the terms of my freedom of information. I asked for access to “the certification issued by the Australian Public Service Commissioner’s representative noting compliance with the Public Service Act 1999 and the Australian Public Service Commissioner’s Directions 2016 for the National Judicial Registrar position Susan O’Connor [was] recruited to fill.”

Having been selected from outside the Australian Public Service Commission to fill an ongoing, full-time SES Band 1 classified National Judicial Registrar vacancy, the Australian Public Service Commissioner’s representative should have certified that the selection process for the SES Band 1 classified National Judicial Registrar vacancy in the Federal Court of Australia complied with the Public Service Act 1999 (Cth) and the Australian Public Service Commissioner’s Directions 2016 (Cth). As I originally requested, and as I made abundantly clear in my internal review request, I want access to that document.

This isn’t rocket science. It’s a very, very simple simple FOI request. A grade school student could handle this more competently that Registrars Hammerton Cole and Colbran have.

I accept that no certification was issued by the Australian Public Service Commissioner’s representative noting compliance with the Public Service Act 1999 and the Australian Public Service Commissioner’s Directions 2016 for the National Judicial Registrar position Matthew Benter was selected to fill. That is because, as Claire Hammerton Cole has conceded, Matthew Benter was allocated an Executive Level 2 classification.

I accept that no certification was issued by the Australian Public Service Commissioner’s representative noting compliance with the Public Service Act 1999 and the Australian Public Service Commissioner’s Directions 2016 for the National Judicial Registrar position Claire Gitsham was selected to fill. That is because, as Claire Hammerton Cole has conceded, Claire Gitsham was allocated an Executive Level 2 classification.

It is readily apparent that Susan O’Connor was selected from outside the Australian Public Service Commission to fill an ongoing, full-time SES Band 1 classified National Judicial Registrar vacancy, and that, according to the law, the Australian Public Service Commissioner’s representative should have certified that the selection process for the SES Band 1 classified National Judicial Registrar vacancy in the Federal Court of Australia complied with the Public Service Act 1999 (Cth) and the Australian Public Service Commissioner’s Directions 2016 (Cth). Claire Hammerton Cole should provide me with the certification.

If the certification does not exist, then Claire Hammerton Cole should refuse access to the certification pursuant to section 24A of the FOI Act.

Decision makers in the Federal Court should not try to pass off, as Claire Hammerton Cole originally tried, the certification issued by the Australian Public Service Commissioner’s representative noting compliance with the Public Service Act 1999 and the Australian Public Service Commissioner’s Directions 2016 for the SES Band 2 classified Senior National Judicial Registrar vacancy that Susan O’Connor FAILED TO SECURE as the document that I requested (i.e. “the certification issued by the Australian Public Service Commissioner’s representative noting compliance with the Public Service Act 1999 and the Australian Public Service Commissioner’s Directions 2016 for the National Judicial Registrar position Susan O’Connor [was] recruited to fill”). Decision makers in the Federal Court should not try to pass off, as Nicola Colbran tried, three irrelevant certifications as “the certification issued by the Australian Public Service Commissioner’s representative noting compliance with the Public Service Act 1999 and the Australian Public Service Commissioner’s Directions 2016 for the National Judicial Registrar position Susan O’Connor [was] recruited to fill.”

In summation, I am correct – Nicola Colbran’s internal review decision is patently wrong, and it should be set aside.

In it’s place, as requested in my original FOI request, and as requested in my internal review request, the Australian Public Service Commissioner’s representative’s certification for the SES Band 1 classified National Judicial Registrar vacancy in the Federal Court of Australia that Susan O’Connor was selected to fill should be provided to me. If that certification does not exist, the decision maker should refuse access to the documents requested in part (v) of my FOI request. Of course, if the certification does not exist, that would raise more questions than provide answers, but that is an issue that Senator Larissa Waters appears to be probing the Federal Court of Australia’s CEO about (as to which, please refer to the Question on Notice LCC-OBE22-112, which was put to the Federal Court of Australia by Senator Waters during Budget Estimates in November 2022).

Given that this FOI request is very, very simple and, thus, can be dealt with very quickly, would you please, Mr English, make all reasonable efforts to arrange for production of “the certification issued by the Australian Public Service Commissioner’s representative noting compliance with the Public Service Act 1999 and the Australian Public Service Commissioner’s Directions 2016 for the National Judicial Registrar position Susan O’Connor [was] recruited to fill” from the Federal Court of Australia as soon as possible. If the Federal Court cannot produce the document requested, then that is proof positive that:

a) the document does not exist / cannot be found;
b) I am correct and I was (and remain) justified in challenging Nicola Colbran’s patently erroneous decision;
c) the correct decision is an access refusal decision pursuant to section 24A of the FOI Act.

Yours sincerely,

Marek