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,

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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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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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General information  

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Kind regards  

  

 

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