Dear Federal Court of Australia,

In an article published in the Australian on 9 February 2022 entitled “Federal Court boss warned on job rule sidestep” the Federal Court’s Assistant People and Culture Director, Matt Asquith, admitted that the decision to classify registrars into EL2 and SES1 bands is primarily based on two factors:

a) additional responsibilities undertaken; and
b) “[the] SES cap the Court has, and if the positions can fit within the cap.”

Pursuant to the FOI Act, I request access to any documents that show that consideration of the number of capped SES positions in an agency should ever be a relevant consideration when evaluating the classification for a group of duties to be performed in an Agency.

Pursuant to the FOI Act, I also request access to any documents that show that a role is capable of being classified at more than one classification, depending on the complexity of the group of duties to be performed, when one of the proposed classifications is Senior Executive Band 1.

The documents can be sent to me by email.

Yours faithfully,

Ray B1

External FOI, Federal Court of Australia

1 Attachment

OFFICIAL
Dear Ray B1

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 Ray B1

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 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,

Thank you for your letter of decision.

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 'Classification of roles in the Federal Court'.

I requested access to:

a) any documents that show that consideration of the number of capped SES positions in an agency should ever be a relevant consideration when evaluating the classification for a group of duties to be performed in an Agency; and

b) any documents that show that a role is capable of being classified at more than one classification, depending on the complexity of the group of duties to be performed, when one of the proposed classifications is Senior Executive Band 1.

Thank you for confirming that the Federal Court does not have any documents that show that a role is capable of being classified at more than one classification, depending on the complexity of the group of duties to be performed, when one of the proposed classifications is Senior Executive Band 1. It would have been very concerning if the Federal Court did have a document that showed that a role is capable of being classified at more than one classification, depending on the complexity of the group of duties to be performed, when one of the proposed classifications is Senior Executive Band 1 because such a document would be contrary to contain information that is contrary to the law - namely subrules 9(4) and 9(5) of the Public Service Classification Rules 2000.

You have advised that the Federal Court has a document that shows that consideration of the number of capped SES positions in an agency should ever be a relevant consideration when evaluating the classification for a group of duties to be performed in an Agency. That is perplexing. It is also intriguing.

You have refused access to the document that shows that consideration of the number of capped SES positions in an agency should ever be a relevant consideration when evaluating the classification for a group of duties to be performed in an Agency on 5 grounds: ss 42, 47C, 47E(c), 47E(d) and 47F of the FOI Act.

Section 42 - Legal Professional Privilege

In your letter you state that the document in question is subject to legal professional privilege.

You claim:

a) that Scott Tredwell, the Acting Deputy Principal Registrar, provided somebody in the Court's staff with advice;
b) that the person to whom Mr Tredwell provided advice was "a client" of his and that, accordingly, a "legal adviser-client relationship existed between the Acting Deputy Principal Registrar and the Court";
c) that the communication between the staff member and Mr Tredwell was "for the dominant purpose of giving or receiving legal advice"
d) that the advice given by Mr Tredwell had the "requisite level of independence necessary for [legal professional privilege] to apply" to the communication.
e) the context of the communications between Mr Tredwell and the staff member related "to an investigation being conducted by the Australian Public Service Commission", and that the "APSC investigation" was of a "public interest disclosure".

There are some problems with your claim that legal professional privilege attaches to the email correspondence between Mr Tredwell and the staff member.

First, you claim that a "legal adviser-client relationship existed between the Acting Deputy Principal Registrar and the Court". You also claim that the "client" was a staff member. There could not be a "legal adviser-client relationship existed between the Acting Deputy Principal Registrar and the Court" and a legal adviser-client relationship between Mr Tredwell and the member of staff. It is one or the other. There is an inconsistency in the identity of the client.

You claim that the client was a member of staff, but that would mean that there was a retainer between the member of staff and Mr Tredwell. I doubt that is the case. In suspect that the real client is the Commonwealth. The person who sought any advice must have had the appropriate authorisation to bind the Commonwealth in seeking independent legal advice. You have not adverted to the authority of the "client" to seek advice for the Commonwealth.

Your inconsistent claims raise more questions than they answer.

Second, you claim that Mr Tredwell provided independent legal advice to this member of staff. You also claim that the context of the communications between Mr Tredwell and the staff member related "to an investigation being conducted by the Australian Public Service Commission", and that the "APSC investigation" was of a "public interest disclosure".

I take it that the reference to the public interest disclosure is a reference to the public interest disclosure investigation conducted by Ms Kate McMullan of the Australian Public Service Commission.

According to documents on this website, an authorised officer in the Office of the Commonwealth Ombudsman allocated an internal public interest disclosure about "recruitment processes and decisions at the Federal Court Statutory Agency" to the Australian Public Service Commission on 11 May 2020 (see https://www.righttoknow.org.au/request/r...). The allocation letter was addressed to Peter Woolcott, the Australian Public Service Commissioner.

According to a redacted version of Ms McMullan's PID investigation report, Ms McMullan concluded her investigation on 9 December 2020 (see https://www.righttoknow.org.au/request/o...).

Therefore, the legal advice was in all likelihood provided between 11 May 2020 and 9 December 2020. It would mean that the legal advice was provided in the 2019-2020 and 2020-2021 financial years.

If Mr Tredwell provided independent legal advice to (the staff member? the Court? the Commonwealth?), one would expect to see the costs associated with the legal advice noted on the website of the Federal Court because there is an obligation on the non-corporate Commonwealth entity to publish legal services expenditures under paragraph 11.1(ba) of the Legal Service Directions 2017.

In the 2019-2020 financial year, the non-corporate Commonwealth entity spent $0 on internal legal advice (see http://web.archive.org/web/2020103011145...).

In the 2020-2021 financial year, the non-corporate Commonwealth entity spent $0 on internal legal advice (see https://fedcourt.gov.au/about/corporate-...).

If the advice that Mr Tredwell provided was independent legal advice provided to "the agency [by] its qualified legal advisers for the purpose of giving or receiving advice" one would expect the expenditure associated with that advice to have been registered as internal legal advice in the 2019-2020 or 2020-2021 financial years.

As you can tell, I have reasons to doubt the truth of claims that legal professional privilege attaches to the document.

Finally, I have read some of the decision that you have published on this website. I have also read some of the comments made by those to whom you have addressed your correspondence. With respect, you do not come across as an impartial and objective decision maker. Your decisions have, for the reasons provided by others on this website, often been strained by inconsistencies, and been supported by half-truths or the selective deployment of facts convenient for your conclusions. I just do not trust you to bring, to your statutory functions, the impartiality required of a person making a decision for the purposes of the FOI Act. I am not suggesting you are necessarily wrong in what you have recorded in your reasons. You have just developed a poor reputation because your reasons betray a lack of impartiality in the exercise of your statutory functions and, as such, I do not trust you and will not take you at your word.

For these reasons, I do not accept your claim that legal professional privilege attaches to the document you have identified.

The conditional exemptions.

I have read some of the decision you have published on this website. You have often that the conditional exemptions in ss 47C, 47E(c), 47E(d) and 47F applied to the release of documents. On closer inspection, your claims have, I think, been roundly dismissed by those who have made FOI requests. In at least one case, your reasons for relying on ss 47E(c), 47E(d) and 47F have been obliterated (see https://www.righttoknow.org.au/request/i...). As I have already said you have developed a poor reputation as a decision maker because your reasons betray a lack of impartiality in the exercise of your statutory functions and, as such, I do not trust you and will not take you at your word. That extends to your reasons under ss 47C, 47E(c), 47E(d) and 47F. The person who conducts the internal review should carefully review your reasons for claiming that ss 47E(c), 47E(d) and 47F apply in the light of terens' criticisms and submissions (see https://www.righttoknow.org.au/request/i...).

I request internal review on all grounds you have relied on in support of your conclusion to refuse access to the 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,

Ray B1

External FOI, Federal Court of Australia

1 Attachment

OFFICIAL
Dear Ray B1

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 Ray B1

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_10-48909340-2592
 

 
You submitted a form called: FOI Review_
 
Your form reference code is: ICR_10-48909340-2592

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References

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Federal Court of Australia

1 Attachment

Our reference: MR22/00837

 

By email: [FOI #8411 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 MR22/00837.

 

Yours sincerely

 

Freedom of Information Regulatory Group

Office of the Australian Information Commissioner

 

 

 

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Ray B1 left an annotation ()

On 24 May 2022, Nicola Colbran, the National Judicial Registrar and District Registrar of the South Australia District Registry of the Federal Court, refused to conduct an internal review of my FOI request.

In her correspondence of 24 May 2022, Ms Colbran states:

The decision letter of 15 March 2022 advised:

Under section 54 of the FOI Act, you may apply in writing to the Court for an internal review of my decision. The internal review application must be made within 30 days of date of this letter.

Your review request was made on 24 April 2022 and as such is more than 30 days after the date of the decision letter. No extension of time has been requested or granted. I am therefore unable to consider your review request.

The problem?

The original FOI decision was provided to me by Claire Hammerton Cole on 14 April 2022. I made my internal review request 10 days after the original decision was made.

Registrar Colbran has made up a material fact (namely, that the original decision was made on 15 March 2022) and, on the basis of that falsehood, has refused to conduct an internal review. This from a person who is charged with exercising the judicial power of the Commonwealth. How embarrassing.

I applied for IC review on 24 May 2022. The OAIC's reference is MR22/00837.