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Correspondence relating to the Australian Public Service Commissioner's representative's putative power of veto

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Dear Federal Court of Australia,

Under the FOI Act I request correspondence sent or received by Warwick Soden in 2018 in which he refers to the Australian Public Service Commissioner's representative's power of veto in relation to:

a) Senior Executive Service selection processes, and
b) appointments to Senior Executive Service positions in the Federal Court.

I also request correspondence received by Mr Soden in 2018 in which Mr Soden's claims about the Australian Public Service Commissioner's representative's power of veto are questioned or challenged.

Yours faithfully,

Stork

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

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 Federal Court of Australia,

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 'Correspondence relating to the Australian Public Service Commissioner's representative's putative power of veto'.

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,

Stork

External FOI, Federal Court of Australia

OFFICIAL
Dear Stork

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 20 May 2022.

Kind regards

FOI Officer
Federal Court of Australia

show quoted sections

External FOI, Federal Court of Australia

1 Attachment

OFFICIAL
Dear Stork

Please find attached correspondence from the Federal Court of Australia.

Kind regards

FOI Officer
Federal Court of Australia

show quoted sections

Stork left an annotation ()

REASONS FOR IC REVIEW

I applied for internal review of Registrar Claire Hammerton Cole’s decision. An internal review decision was made by Registrar Nicola Colbran on 20 June 2022.

Ms Colbran took the following things into account when making her internal review deicsion:

Ms Colbran’s decision is set out accordingly in the letter of decision:

In relation to the documents described in your FOI request, the searches conducted by the Court found emails dated September and October 2018 within the scope of your request.

I refuse access to these emails. The emails are conditionally exempt from disclosure under ss 47C, 47E(c) and 47F of the FOI Act and disclosure of the documents would be contrary to the public interest under s 11A(5) of the FOI Act .

Ms Colbran claimed that the documents were subject to conditional exemptions. She claimed that conditional exemptions under ss 47C, 47E(c), 47E(d) and 47F of the FOI Act applied to the documents.

Ms Colbran claimed that s 47C applies because the documents contain deliberative content.

Ms Colbran claims that s 47E of the FOI Act applies because:

a) the emails relate to the management of personnel because they relate to the recruitment and appointment of a Registrar of the Court;
b) an effect on the management of personnel would reasonably be expected following disclosure of the emails because the emails record an exchange of opinions, proposals and deliberations in regard to the recruitment and appointment of a Registrar of the Court;
c) The expected effect of disclosing the emails would be both substantial and adverse on the management of personnel by the Court because the disclosure of the emails would or could be expected to:
i) undermine the expectations of prospective and current Court employees regarding the protection of their privacy;
ii) diminish trust in the confidentiality of the Court’s recruitment process;
iii) adversely impact the Court’s ability to frankly discuss the appropriate classification or composition of a position, leading to a deterioration of the rigour applied to the management of personnel.

Ms Colbran also set out her reasons about the application of s 47F of the FOI Act to the documents. Her reasons are too lengthy to set out here but among them was the claim that “Persons who conduct [a registrar’s role] should not be exposed to the risk of personal embarrassment that their standing is compromised by media speculation on the circumstances of their recruitment and the terms of their employment”, even though she provides not basis for claiming that the media speculated on the recruitment process or the terms of employment. On the contrary, the media approached Justice Greenwood of the Federal Court and sought his views on the matter. As will become apparent, the journalists who broke the story quoted Justice Greenwood at length on the unlawful conduct that the Judge claimed was engaged in by Warwick Soden and Sia Lagos when they denied Murray Belcher lawful promotion to the senior executive service of the Australian Public Service.

I contend that sections 47C, 47E(c) and 47E(d) of the FOI Act do not apply to the documents that contain the emails.

A useful analysis of when s 47C and 47E will apply has been set out here – https://www.righttoknow.org.au/request/u.... I adopt that analysis.

To put the analysis in a nutshell, deliberations entered into to secure unlawful ends are not covered by s 47C because Parliament assumes legality. The “deliberations” entered into by Mr Soden and Justice Greenwood were not deliberations for lawful ends. As has been pointed out in the article Top judge intervened in row on Federal Court registrars (https://www.reddit.com/r/auslaw/comments...), “Mr Soden had claimed the registrar, a man who had been at the court for many years, could not be given the original Senior Executive Service classification advertised because it would be vetoed by the APSC representative.” That is a bald faced lie. The APSC representative on a selection panel does not have the power to veto any appointments. Justice Greenwood said as much in the article. Justice Greenwood went on to state “The true position is that neither Warwick nor Sia want to appoint (the man). The so-called ‘veto’ is a red herring to prevent (him) being awarded the position … The SES classification, you will find, will have been taken somewhere else in the organisation … regrettably, the eight Brisbane judges will not accept the downgrading of the role.” As a side note, the man is obviously Murray Belcher. It is clear that the man is Murray Belcher because the identity of the most senior registrar in Queensland referred to in the article has been established through the annual reports of the Federal Court (see https://www.fedcourt.gov.au/about/corpor...) and implicitly established through the following FOI requests:

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

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

Email correspondence in which Mr Soden lies to Justice Greenwood about:

a) the Public Service Commissioner’s representative proposing to veto the selection or appointment of Murray Belcher;
b) a plan to reclassify the SES Band 1 National Judicial Registrar & District Registrar – QLD position to a non-SES classified role for the sole purpose of removing the Public Service Commissioner’s representative from the selection process (which is obviously false because the Public Service Commissioner’s representative was part of the SES selection process that saw Mr Belcher “promoted” to the SES Band 1 role; Ms Kerryn Vine-Camp, the APSC representative, certified the selection process as complying with the APS Employment Principles and the Australian Public Service Commissioner’s Directions on 25 October 2018 (see https://www.righttoknow.org.au/request/r...
c) Justice Greenwood calling out Mr Soden on his lie relating to the so called “veto power”;
d) Justice Greenwood identifying the “true position” (i.e. “ that neither Warwick nor Sia want to appoint” Murray Belcher),

is not content setting out deliberative materials for lawful ends. The “deliberations” plainly go to Mr Soden’s lies, Mr Soden’s and Ms Lagos’ conspiracy to deny Mr Belcher lawful promotion to the senior executive service of the APS to allocate the SES1 classification to somebody else under rule 6 of the Public Service Classification Rules 2000, and Justice Greenwood calling out Mr Soden and Ms Lagos for their “obfuscation”.

Section 47C thus has no application to the documents.

Once the true nature of the content of the documents is acknowledged, it becomes obvious that section 47E could not possibly have any application to the documents, for the reasons set out here:

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

The argument is essentially that section 47E(c) can only apply to documents that would, or could reasonably be expected to have a substantial adverse effect on the LAWFUL management or assessment of personnel or by an agency, because Parliament assumes that legality of the management or the assessment of personnel.

Similarly, section 47E(d) can only apply to documents that would, or could reasonably be expected to have a substantial adverse effect on the proper and efficient conduct of the operations of an agency. As has been pointed out by the Information Commissioner in her Guidelines at [6.123]:

“The predicted effect must bear on the agency’s ‘proper and efficient’ operations, that is, the agency is undertaking its expected activities in an expected manner. Where disclosure of the documents reveals unlawful activities or inefficiencies, this element of the conditional exemption will not be met and the conditional exemption will not apply.”

Thus, the s 47E conditional exemptions claimed by Ms Colbran are without basis.

I cannot comment on the section 47F conditional exemptions other than to note that the identities of the main protagonists are obvious: they are Justice Greenwood, Warwick Soden, Sia Lagos, Kerryn Vine-Camp of the Australian Public Service Commission and Murray Belcher.

The public interest assessment carried out by Ms Colbran is affected by the false premises that sections 47C, 47E(c) and 47E(d) and, possibly, 47F apply to the documents. The first three certainly do not and the last conditional exemption may well not apply.

Ms Colbran states the following to justify her refusal to grant access to the documents under section 11A(5) of the FOI Act:

“I have taken into account the factors favouring access to the documents as set out in s 11B(3) of the FOI Act. I accept that providing access to the document may:

* increase scrutiny, discussion, comment and review of the Court’s recruitment activities and operations; and
* inform debate on the Court’s recruitment activities.

However, in the context where there has already been an investigation into the recruitment of Registrars by the Court pursuant to the Public Interest Disclosure Act 2013, and there is an investigation underway by the Commonwealth Ombudsman into this earlier process, I find
that only limited weight should be given to these factors. It is difficult to see how provision of the emails through an FOI request could, in all the circumstances above, inform debate on a matter of public importance when these other independent and impartial investigation processes have been completed or are underway.”

First, the Court did not conduct an investigation into the recruitment of registrars under the PID Act. Ms Kate McMullan of the Australian Public Service Commission “conducted” an investigation under the PID Act (see https://www.righttoknow.org.au/request/o...) after the public interest disclosure was allocated to the APSC, by the Commonwealth Ombudsman on 11 May 2020, so that the Australian Public Service Commissioner could investigate the allegations in the disclosure under paragraph 41(2)(o) of the Public Service Act 1999 (https://www.righttoknow.org.au/request/r...).

Second, it is obvious from the substance of Ms McMullan’s PID investigation report that she outright refused to investigate the substance of the allegations relating to the lies that Mr Soden fed to Justice Greenwood.

According to an extract of the PID investigation report that has been reproduced on Right to Know:

“Veto of appointments

Relevant Allegation

That the Australian Public Service Commissioner’s representative on the selection panel “vetoed” appointment of Mr Belcher to the SES1 District Registrar role or alternatively, Mr Soden falsely asserted that Australian Public Service Commissioner’s representative had done so.

Findings

On the balance of probabilities, I find that this assertion about the Australian Public Service Commissioner’s representative is not substantiated. On the basis of materials provided by the FCSA including a selection report, I find that the outcome of the recruitment process was that Mr Belcher was found by the panel (including the Australian Public Service Commissioner’s representative on the selection panel) to be the preferred candidate for the advertised position. On the balance of probabilities, I find that no “veto power” was exercised or purported to be exercised by the Australian Public Service Commissioner’s representative. On the balance of probabilities I find that Mr Belcher was appointed to a[n] [Executive Level 2] position on the basis of a role review ...

In those circumstances, it is not clear whether or for what purpose Mr Soden may have made representations that the Australian Public Service Commissioner’s representative had exercised a “veto power”; however, in absence of a “veto power” being exercised or being purported to be exercised, any incorrect statement by Mr Soden (whether due to a misstatement on Mr Soden’s behalf, a misunderstanding on Justice Greenwood’s behalf, a miscommunication between the two, or for some other reason) about action taken by the Australian Public Service Commissioner’s representative would not in and of itself constitute disclosable conduct. On that basis, I make no further findings about any such comments that may have been made.”

Clearly Ms McMullan refused to investigate the allegations that Mr Soden lied to Justice Greenwood about Ms Vine-Camp exercising or purporting to exercise a power of veto. Accordingly, that aspect of the disclosure was not lawfully or adequately investigated.

Third, the investigation that is being conducted by the Commonwealth Ombudsman (see https://www.reddit.com/r/auslaw/comments...) only relates to the nature of the investigation conducted by Ms McMullan. The Ombudsman’s investigation does not extend to the actual disclosure. Accordingly, the allegations set out in the disclosure about Mr Soden lying to Justice Greenwood and the subsequent attempts to deny Mr Belcher lawful promotion to the senior executive service have not been adequately or lawfully investigated (which is probably why there is a category 4 investigation, being conducted by the Commonwealth Ombudsman, into Ms McMullan’s handling of her PID investigation).

As noted above, Ms Colbran stated that “it is difficult to see how provision of the emails through an FOI request could, in all the circumstances above, inform debate on a matter of public importance when these other independent and impartial investigation processes have been completed or are underway.”

There was an inadequate investigation into the allegations set out in the PID report and the Commonwealth Ombudsman will not be investigating those allegations. In the absence of a lawful PID investigation and the limited scope of the Ombudsman’ investigation, and in the light of the inapplicability of the majority, if not all, of the conditional exemptions that have been claimed, it is difficult to see how provision of the email through the FOI process, in all the circumstances, would not inform a matter of public importance (and there is no doubt that court administrators lying to a judge of a superior court of record is a matter of public importance).

Federal Court of Australia

 
 
  [1]Office of the Australian Information Reference Code:  
Commissioner ICR_10-49759805-2735
 

 
You submitted a form called: FOI Review_
 
Your form reference code is: ICR_10-49759805-2735

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]Office of the Australian Information Reference Code:  
Commissioner ICR_10-49759805-2735
 

 
You submitted a form called: FOI Review_
 
Your form reference code is: ICR_10-49759805-2735

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

Visible links
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: MR22/01077

 

By email: [FOI #8635 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 MR22/01077.

 

Yours sincerely

 

Freedom of Information Regulatory Group

Office of the Australian Information Commissioner

 

 

 

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We don't know whether the most recent response to this request contains information or not – if you are Stork please sign in and let everyone know.