Details about SES employees in the Federal Court Statutory Agency (update on PA2925-06/9 on the disclosure log on the Federal Court website)

The request was partially successful.

Dear Federal Court of Australia,

I refer to the disclosure log on the website of the Federal Court and in particular to disclosure PA2925-06/9 (see www.fedcourt.gov.au/disclosurelog). I have drawn inspiration from that disclosure and make the following request under the FOI Act.

If the documents do not exist in discrete form but can be prepared under section 17 of the FOI Act, please prepare the documents accordingly.

Part 1

Under the FOI Act, I request documents that list the names, SES ranks (e.g. SES 1 or SES 2), position titles (e.g. National Judicial Registrar), primary locations of occupation (e.g. Sydney), employment status (e.g. full time, ongoing) for the 19 SES band employees referred to on page 185 of the 2020-2021 annual report of the Federal Court.

Part 2

Assuming any one or more SES employees were engaged from outside the Australian Public Service between 13 June 2020 and the date of this request, under the FOI Act, I request access to documents setting out the following information:

a) the name of each SES employee;
b) the date of which each SES employee was first engaged as a member of the Federal Court of Australia Statutory Agency;
c) the SES classification given to each SES employee;
d) the classification of the vacancy which each SES employee applied for;
e) the position title of each SES employee;
f) the employment status of each SES employee upon first being engaged as a member of the Federal Court of Australia Statutory Agency;
g) if the SES employee/s retired, resigned or was (or were) terminated between 13 June 2020 and the date of this request, the date/s on which that event, or those events, occurred.

Part 3

Assuming any one or more SES employees transferred into the Federal Court of Australia Statutory Agency between 13 June 2020 and the date of this request, under the FOI Act, I request access to documents setting out the following information:

a) the name of each SES employee;
b) the date of transfer of each SES employee from the first agency or department into the Federal Court of Australia Statutory Agency;
c) the name of the first agency or department from which each SES employee transferred;
d) the classification of each SES employee before they transferred into the Federal Court of Australia Statutory Agency;
e) the SES classification of each SES employee upon transferring into the Federal Court of Australia Statutory Agency;
f) the position title of each SES employee upon transferring into the Federal Court of Australia Statutory Agency;
g) the employment status of each SES employee upon transferring into the Federal Court of Australia Statutory Agency (e.g. full time, ongoing);
h) if the SES employee/s retired, resigned or was (or were) terminated between 13 June 2020 and the date of this request, the date/s on which that event, or those events, occurred.

Part 4

Assuming any one or more SES employees were promoted to SES positions in the Federal Court of Australia Statutory Agency between 13 June 2020 and the date of this request, under the FOI Act, I request access to documents setting out the following information:

a) the name of each SES employee;
b) the date of promotion of each SES employee in the Federal Court of Australia Statutory Agency;
c) the classification of each SES employee before they were promoted;
d) the SES classification of each SES employee upon promotion;
e) the classification of each SES employee prior to promotion;
f) the position title of each SES employee upon promotion;
g) the employment status of each SES employee upon promotion (e.g. full time, ongoing);
h) the employment status of each SES employee before promotion (e.g. full time, ongoing);
i) if the SES employee/s retired, resigned or was (or were) terminated between 13 June 2020 and the date of this request, the date/s on which that event, or those events, occurred.

Yours faithfully,

Stephanie

External FOI, Federal Court of Australia

1 Attachment

OFFICIAL
Dear Stephanie

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 Stephanie

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

2 Attachments

OFFICIAL
Dear Stephanie

Please find attached correspondence from the Federal Court of Australia.

Kind regards

FOI Officer
Federal Court of Australia

show quoted sections

Dear B Henderson,

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

I am writing to request a total internal review of Federal Court of Australia's handling of my FOI request 'Details about SES employees in the Federal Court Statutory Agency (update on PA2925-06/9 on the disclosure log on the Federal Court website)'.

I disagree that any of ss 47C, 47E and 47F apply to the documents requested.

In relation to the document that has been prepared according to section 17 of the FOI Act, the claims that a s 47F conditional exemption applies to every single SES officer in the Federal Court agency is laughable. That you think that it is in the public interest to deny access to the names of the Federal Court's SES employees is beyond the pale.

In case you had not noticed, there have been credible allegations levelled against the management of the Federal Court statutory agency about unlawful allocations of SES Band classifications under rule 6 of the Public Service Classification Rules 2000. The allegations were contained in a series of articles published in The Australian. The allegation about unlawful allocations of a classification to Murray Belcher, the National Judicial Registrar & District Registrar - QLD, was supported by comments Justice Greenwood made in an article published on 10 February 2022 in The Australian. There is a public interest in knowing who the Court's SES officers are and whether their classification allocations were applied on the basis of merit, under the Public Service Act, or contrary to the merit principles contained in the Public Service Act. Any claims about the mental health, the cohesion, and the like, of registrars is trumped by the public interest in shining a light on illegality and unlawfulness. That's a no-brainer. There is, on an almost weekly basis, more evidence appearing on this website that would suggest that classifications were handed out to people who did not apply for notified vacancies, who were not selected on the basis of merit and whose appointments have been otherwise irregular.

I take particular issue with your claims to s 47F applying to information in "Part 4" of the document you have prepared.

Thank you for confirming that the 4 of the people promoted were EL2 employees and one was an EL1 employee prior to promotion to the SES Band 1 roles.

Thank you for confirming the titles of the SES Band 1 employees. They are:

a) General Counsel;
b) District Registrar;
c) National Judicial Registrar;
d) Chief Information Officer;
e) Chief Information Officer.

Thank you for confirming that each of the 5 SES employees promoted from 13 June 2020 was an ongoing, full time APS employee prior to promotion to the SES.

As you know, an Agency Head must, in the ordinary course, notify the promotion of an ongoing APS employee (APSC Directions 2016, s 34(1)(a); APSC Directions 2022, s 40(1)(a)).

Take the General Counsel role, for example.

The General Counsel role was notified in the Public Service Gazette PS27 of 2021. The vacancy notification number was VN-0691572. The role was classified at the SES Band 1 classification. Scott Tredwell was promoted to that role. His promotion notice was published in Public Service Gazette PS37 of 2021. The promotion notice number was OC-050407. He was promoted from an EL2 position to an SES 1 position. He is based in Brisbane. All of this information has been gazetted according to law, and can be accessed here - www.apsjobs.gov.au/s/outcome-details?Id=....

As with the General Counsel's promotion, the promotion of the District Registrar, the National Judicial Registrar and the Chief Information Officers must, in the ordinary course, be gazetted, being promotions of ongoing APS employees. There is no reason to deny access to information that is gazetted. Accordingly, the names and promotion dates of the General Counsel, the District Registrar, the National Judicial Registrar and the Chief Information Officers should be made available to me.

You may wish to review subsection 47F(2) because I do not think it could reasonably be contended that s 47F could possibly apply to the document setting out this information. Your claim that s 47F applies to the names and dates of promotion of the promoted employees is contrary to law and, accordingly, baseless. The claim that there is a public interest in denying access to the names and dates of promotion of the promoted SES employees is baseless.

As requested, I ask that a complete internal review is conducted and that a decision is rendered according to law (and not according to irrelevant authorities cherry picked to give the impression of a appropriately reasoned decision).

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

Yours faithfully,

Stephanie

External FOI, Federal Court of Australia

OFFICIAL
Dear Stephanie,

I acknowledge receipt of your request below for an internal review of the decision made by Ms Henderson on behalf of the Federal Court of Australia and dated 22 June 2022.

Kind regards

FOI Officer
Federal Court of Australia

show quoted sections

External FOI, Federal Court of Australia

2 Attachments

OFFICIAL
Dear Stephanie,

Please find attached correspondence from the Federal Court of Australia.

Kind regards,

FOI Officer
Federal Court of Australia

show quoted sections

Stephanie left an annotation ()

Reason for IC review

Ms Hammerton Cole’s reasons are fascinating.

B Henderson claimed that 5 people from the Federal Court had been promoted to SES1 Band positions. Ms Hammerton Cole has now revised the number to 1. Something is amiss.

Also, Ms Hammerton Cole claims that the one promotion to the SES1 Band was the promotion of a person within the Court from the EL1 classification to the SES1 Band classification. According to Ms Hammerton Cole, the person promoted was promoted to the SES1 Band role of General Counsel.

The General Counsel role was notified in the Public Service Gazette PS27 of 2021. The vacancy notification number was VN-0691572. The role was classified at the SES Band 1 classification. Scott Tredwell was promoted to that role. His promotion notice was published in Public Service Gazette PS37 of 2021 - http://www.apsjobs.gov.au/s/outcome-deta.... The promotion notice number was OC-050407. He was promoted from an EL2 position to an SES 1 position, and not an EL1 position as Ms Hammerton Cole claims. Accordingly, the information that Ms Hammerton Cole has provided is patently false.

I wonder what other falsehoods have been communicated by Ms Hammerton Cole. It would not be the first time that Ms Hammerton Cole has cooked up a set of reasons to mislead an access applicant. Unlike Ms Hammerton Cole, who makes claims that “derogatory and offensive statements” have been made about named individuals on Right to Know but provides no evidence in support of such a claim, even though it would be very simple to do so, I will provide evidence in support of my claim that “Ms Hammerton Cole has cooked up a set of reasons to mislead” access applicants.

Take a request that Velan made on 26 February 2022 (https://www.righttoknow.org.au/request/s...). The request reads:

“Under the FOI Act, I request access to:
i. documents recording the “role review processes” that Kate McMullan based her conclusions on,
ii. documents setting out the classification assessments for the Legal 2 and SES1 versions of the National Judicial Registrar role that Kate McMullan would presumably have referred to when drawing her conclusions,
iii. documents that show that it is possible to broadband a group of duties over an SES classification even though the Public Service Classification Rules forbid such an act.”

In response to paragraphs (i) and (ii) of Velan’s FOI request, Ms Hammerton Cole claimed that there were:

a) documents recording the “role review processes” that Kate McMullan based her conclusions on; and
b) documents setting out the classification assessments for the Legal 2 and SES1 versions of the National Judicial Registrar role that Kate McMullan would presumably have referred to when drawing her conclusions.

Velan picked apart Ms Hammerton Cole’s reasoning in his internal review request (https://www.righttoknow.org.au/request/s...).

On internal review, National Juducial Registrar & District Registrar Nicola Colbran decided:

I have reviewed the decision of 27 April 2022 in relation to the documents described in items (i) and (ii) of the FOI request. That decision identified documents within the scope of your request. However, I am of the view that those documents are not within scope. 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 request to access the documents described in items (i) and (ii) of the FOI request.

(https://www.righttoknow.org.au/request/s...)

Accordingly, it has been demonstrated that Ms Hammerton Cole has, in the past, crafted reasons to fit a conclusion that would least cause embarrassment to the Federal Court.

In her internal review reasons, Ms Hammerton Cole claims:

“In your internal review request you also make reference to allegations levelled against the management of the Court, also contained in articles published in The Australian …

I note that the Court has not commented publicly on whether the substance of the allegations, and information related to those allegations, is true or is an accurate reflection of the Court’s records. As an internal review officer, it would be inappropriate for me to comment on those allegations in any detail, especially in circumstances where the Australian Public Service Commission (APSC) investigation referred to in The Australian articles was conducted pursuant to the Public Interest Disclosure Act 2013 (Cth) ( PID Act). As such, the ASPC’s investigation remains subject to the secrecy provisions of the PID Act. Additionally, there is a Commonwealth Ombudsman investigation underway concerning that APSC investigation, for which findings are yet to be handed down.”

What difference does it make whether the Court has commented on the allegations set out in the articles in The Australian? The Court’s comments would not affect the truth of the claims in those articles. Either they are true, or they are not.

Ms Hammerton Cole claims that it would not be appropriate for her to comment on the allegations “especially in circumstances where the Australian Public Service Commission (APSC) investigation referred to in The Australian articles was conducted pursuant to the Public Interest Disclosure Act 2013 (Cth) ( PID Act)”. Ms Hammerton Cole claims that, as a result of that PID investigation, “the ASPC’s investigation remains subject to the secrecy provisions of the PID Act.” Of what relevance is that to Ms Hammerton Cole’s function as an FOI officer.

The “secrecy provisions” Ms Hammerton Cole is referring to is section 65(1) of the PID Act. Section 65(1) of the PID Act provides:

(1) A person commits an offence if:
(a) the person has information (protected information) that the person obtained:
(i) in the course of conducting a disclosure investigation; or
(ii) in connection with the performance of a function, or the exercise of a power, by the person under this Act; and
(b) the person:
(i) discloses the information to another person; or
(ii) uses the information.

Ms Hammerton Cole has admitted that the investigation was conducted by the APSC.

The investigation was conducted by Kate McMullan of the APSC.

Ms McMullan obtained protected information in the course of conducting a disclosure investigation, or in connection with the performance of a function, or the exercise of a power. Ms McMullan and those assisting Ms McMullan in the APSC are bound by s 65(1). Nobody in the Federal Court is bound by s 65(1) of the PID Act because nobody in the Federal Court conducted a disclosure investigation or obtained information in connection with the performance of a function, or exercise of a power, by that person under the PID Act. Even if I am wrong and somebody in the Federal Court is bound by s 65(1) of the PID Act, Ms Hammerton Cole has not established that she is such a person. I will return to this point to impugn Ms Hammerton Cole’s reasoning.

Ms Hammerton Cole claims that s 47E (c) and (d) of the FOI Act applies to the names and employment dates of SES employees in the Federal Court.

In respect of the application of s 47E(d) of the FOI Act, Ms Hammerton Cole claims:

“I also note the guidance contained in paragraph 6.123 of the FOI Guidelines that the conditional exemption in s 47E(d) does not apply to documents that reveal “unlawful activities or inefficiencies”. Despite the allegations contained in your internal review request, I find that the disclosure of the names and dates of employment of SES officers does not, in any way, reveal “unlawful activities or inefficiencies” and, therefore, I have decided that the conditional exemption contained in s 47E(d) remains applicable.”

I beg to differ.

In the past, the Federal Court has disclosed the names and employment dates of its SES employees (see disclosure PA2925-06/9 on the Federal Court’s FOI disclosure log – www.fedcourt.gov.au/disclosurelog).

From the documents associated with disclosure PA2925-06/9, it was determined that Susan O’Connor was engaged, from outside the APS, as an SES Band 1 National Judicial Registrar in November 2018.

Despite various requests for:

a) the vacancy notification for the SES Band 1 National Judicial Registrar role that Susan O’Connor was selected to fill;
b) the classification evaluation for the SES Band 1 National Judicial Registrar role; and
c) the APS Commissioner’s representative’s certification for the SES Band 1 National Judicial Registrar selection process that saw Susan O’Connor’s engagement as an SES Band 1 National Judicial Registrar in the Federal Court,

these documents have never been provided.

The Federal Court has repeatedly stated that the classification evaluation documents for the SES Band 1 National Judicial Registrar roles do not exist (see, for example, https://www.righttoknow.org.au/request/c...).

National Judicial Registrar & District Registrar Colbran has stated that the APS Commissioner’s representative’s certification for the SES Band 1 National Judicial Registrar selection process that saw Susan O’Connor’s engagement as an SES Band 1 National Judicial Registrar in the Federal Court does not exist (see https://www.righttoknow.org.au/request/c... and https://www.righttoknow.org.au/request/c...).

It is because Ms O’Connor’s name, employment date, and classification were known to the public that requests for relevant details about the selection process for the SES Band 1 National Judicial Registrar process were made. In the light of known information, reasonable deductions were drawn and further requests for documents were put to the Federal Court. As it turns out, documents that should exist – the APS Commissioner’s representative’s certification for the SES Band 1 National Judicial Registrar selection process that saw Susan O’Connor’s engagement as an SES Band 1 National Judicial Registrar in the Federal Court, and the classification evaluation for the SES Band 1 National Judicial Registrar role – have not been provided pursuant to FOI requests because they do not exist.

Thus, Ms Hammerton Cole’s finding that “the disclosure of the names and dates of employment of SES officers does not, in any way, reveal ‘unlawful activities or inefficiencies’ and that, “therefore ... the conditional exemption contained in s 47E(d) remains applicable” are false.

Ms Hammerton Cole has also makes the following claim:

“In relation to the conditional exemption contained in s 47E(d) of the FOI Act, I find that disclosure of the names and dates of employment of SES officers would bear on the ‘proper and efficient conduct of the operations’ of the Court in the sense that the relevant SES officers, many of whom are Registrars of the Court, play a vital role in the management of the Court’s administrative affairs as well as the exercise of the Court’s substantive judicial function, all of which has a direct impact on the Court’s ‘proper and efficient’ conduct of operations.”

Except, the Federal Court publishes the names of every single one of the SES officers that exercise “substantive judicial function[s]”.

In the s 17 document that Ms Hammerton Cole has provided, she notes, for example, that four SES employees are “Senior National Judicial Registrars”. One need only look at the list of Senior National Judicial Registrars in the 2020-2021 annual report of the Federal Court to find their names – they are Rowan Davis, Paul Farrell, Jenni Priestley and Alison Legge.

Ms Hammerton Cole claims that disclosure of the names of these Senior National Judicial Registrars is covered by s 47E(d) of the FOI Act and that there is a public interest in refusing to grant access to their names on a document prepared under s 17 of the FOI Act, but publishes their titles, which makes it a matter of adding 2 and 2 to determine the names of these Senior National Judicial Registrars by reference to the Court’s public documents. The silliness of the reasoning is breathtaking.

Ms Hammerton Cole goes on to claim that the disclosure of the names and dates of employment of the identified SES officials would, or could reasonably be expected to, have a substantial adverse effect of the management and assessment of personnel because:

a) it would “destroy employees’ trust in the Court’s ability to protect their privacy and confidential information”;

b) it would “discourage prospective job candidates from applying for roles at the Court due to the perceived inability of the Court to protect confidential employee information”;

c) it would “cause considerable stress and anxiety for existing Court employees whose personal information is disclosed in response to your FOI request, resulting in a decline in the wellbeing and productivity of those employees”;

d) it would “prejudice the protection of Court employees’ right to privacy generally, thus resulting in the curtailment of candid and open communication within the Court”;

e) it would “in light of articles published in The Australian about the Court’s recruitment activities, adversely impact employee morale due to concerns that the personal information of Court employees will be again published in the media or elsewhere”.

The reason in paragraph (a) is nonsense. There is no general right to privacy in Australia. Moreover, there is, as I have demonstrated, nothing private or confidential about the names of the SES officials who have been identified on the section generated document. The Court maintains a list of all of its registrars on its website and publishes a list of the names of the registrars in the its annual reports. The claim that the publication of the names of the registrars would have a substantial adverse impact on the Federal Court is ludicrous. To suggest that their judge directed powers would be impaired if their names were published is beyond the pale. Yet that is what Ms Hammerton Cole has suggested.

The reason in paragraph (b) is nonsense. There is no evidence to support that assertion. Also why would applicants perceive that the Court has an obligation to protect the names of SES employees? Applicants know that their names may be published as part of senior employee charts. Applicants know that their name may be published in the public service gazette in promotion or engagement notices. Applicant know that the ballpark dates of their promotions or engagement may be published in the public service gazette. Applicants are aware that their job applications may be sought under the FOI Act (see Re Dyki and Federal Commissioner of Taxation). There is no obligation in law to refuse disclosure of the name of an employee and no reason why the date of their employment should be denied access to.

The reason in paragraph (c) is nonsense. SES employees are not as fragile as the morning dew. In what universe is it an accomplished fact that the disclosure of their names and the dates on which they commenced work would “cause considerable stress and anxiety for existing Court employees”, and, moreover, “result ... in a decline in the wellbeing and productivity of those employees”. I hadn’t realised Ms Hammerton Cole was an authority on the subject. Smells like garbage to me.

The reason in paragraph (d) is stupid. There is no general right to privacy in Australia. That was made clear by the High Court in the Lenah Game Meats case. How the disclosure of a person’s name and the date on which they commenced could “result ... in the curtailment of candid and open communication within the Court” is, I think, beyond any rational person.

The reason in paragraph (e) is nonsense. Why would any media organisation wish to publish information about the names and commencement dates of SES employees? Of course, if it turns out, after further investigation through the FOI process, as was the case with Ms O’Connor, that no vacancy notification for the job she filled exists (in contravention of the Australian Public Service Commissioner’s Directions 2016), and no classification evaluations exists (contrary to the requirements in the Australian Public Service Classification Guide), and no certification issued by the APS Commissioner’s representative exists to certify the SES selection process (in contravention of s 21 of the Australian Public Service Commissioner’s Directions 2016), then there may be good reason for a media agency to report such issues. But then Ms Hammerton Cole’s finding that “the disclosure of the names and dates of employment of SES officers does not, in any way, reveal “unlawful activities or inefficiencies” would be rendered null.

News agencies are permitted to report about the unlawful activities of government organisations. Despite Ms Hammerton Cole’s claims, in other decision she has published on Right to Know, that the allegations published in The Australian should not be believed because The Australian is “not a source that can be said to be credible or reliable” (see https://www.righttoknow.org.au/request/a...), no SES employee is entitled to the immunity of privacy if evidence tends to support the assertion that their employment was secured under dubious circumstances. In any case, that reason is, in reality, nothing short of a public interest assessment, and Ms Hammerton Cole is, in reality saying nothing more than this - the disclosure of the document:

a) could result in in embarrassment to the Commonwealth Government, or cause a loss of confidence in the Government; or
b) could result in any person misinterpreting or misunderstanding the document; or
c) could result in confusion or unnecessary debate.

It is against the law to refuse access to a document on those grounds – see s 11B(4) of the FOI Act.

Ms Hammerton Cole claims:

“a large volume of FOI requests by variously-named applicants have been made over recent months via the “Right to Know” website. Many of those requests, and accompanying online commentary, all of which are publicly-available via the “Right to Know” website, have included derogatory and offensive statements about named individuals which has caused stress, anxiety and harm to the individuals concerned.”

Really? Where? Not a single example of the “many” requests has been identified by Ms Hammerton Cole. I have not found any derogatory or offensive statements. I have found robust criticisms of Ms Hammerton Cole’s claims that documents exist when, in reality, they do not (such view being vindicated on internal review). I have found FOI requests than identify the individuals whose careers were advanced contrary to law (for example, the identity of one of the junior registrars who was promoted, despite being found not to have met the essential requirements for a role, has been noted based on research of the public service gazette – it is Caitlin Wu). I have found FOI requests identifying the persons who promoted Caitlin Wu contrary to law – these people were Sia Lagos, Andrea Jarratt and David Pringle – based on documents published by the Federal Court. But this does not mean that the commentary is derogatory or offensive.

In any case, as I have already stated, it is against the law to refuse access to documents because disclosure of the documents:

a) could result in in embarrassment to the Commonwealth Government, or cause a loss of confidence in the Government; or
b) could result in any person misinterpreting or misunderstanding the document; or
c) could result in confusion or unnecessary debate.

Ms Hammerton Cole claims that the names of the SES officers and the commencement dates of their employment are conditionally exempt under s 47F. She claims that the SES officers will be subjected “to abuse and threats from various persons and organisations”. Ms Hammertocn Cole claims that the Right to Know website “has been utilised to publish offensive comments, unsubstantiated allegations and, at times, threats in relation to officers of the Court, including officers whose personal details fall within the scope of your FOI request.” Really? Where? That is quite an accusation. I have found no threats in relation to SES officers of the Federal Court on the Right to Know website. Indeed, I have found no threats against officers of the Federal Court. I have found the names of individuals who have, according to articles in The Australian, engaged in unlawful conduct, but that is not a threat. Seeking documents associates with people who have engaged in unlawful conduct is not threatening. It is what is to be expected with transparent governance. Public officials will be held to account. That is the whole point of the FOI Act.

Ms Hammerton Cole has refused access to the documents on public interest grounds. She claims:

“I accept that the release of names of SES officers might broadly promote the objects of the FOI Act by giving the Australian community access to information held by public sector agencies and enhancing ‘scrutiny, discussion, comment and review’ of public sector activities. However, I reject your claim that the allegations published on the ‘Right to Know’ website and in The Australian mean that there is public interest in knowing the names and employment details of the Court’s SES officers. The allegations made via those two sources remain unsubstantiated and, furthermore, some of the SES officers captured by your FOI request have not yet been the subject of any allegations though may, in future, be the subject of allegations if their names were to be released.

Furthermore, the weight to be accorded to this factor must be reduced in circumstances where some of the allegations you have referred to in your internal review request relate to an APSC investigation conducted pursuant to the PID Act which is subject to the confidentiality regime established by the PID Act. The weight to be accorded to this factor must also be limited in
circumstances where a Commonwealth Ombudsman investigation is underway concerning that APSC investigation and is yet to be finalised.”

The claim that the allegations published in The Australian are unsubstantiated is garbage. Why would two respected journalists, one of whom has won a Walkley Award, make up facts, make up quotes, and make up the statements of a Federal Court Judge (Justice Greenwood)? Ms Hammerton Cole’s statement is just pathetic.

As I have already stated, why would any media organisation wish to publish information about the names and commencement dates of SES employees? Of course, if it turns out, after further investigation through the FOI process, as was the case with Ms O’Connor, that no vacancy notification for the job she filled exists (in contravention of the Australian Public Service Commissioner’s Directions 2016), and no classification evaluations exists (contrary to the requirements in the Australian Public Service Classification Guide), and no certification issued by the APS Commissioner’s representative exists to certify the SES selection process (in contravention of s 21 of the Australian Public Service Commissioner’s Directions 2016), then there may be good reason for a media agency to report such issues. In fact, that is what good journalists do. They follow the clues to the relevant conclusions. If it is the case that, by cross referring commencement dates with names and notices in the Public Service Gazette, a journalist catches whiff of a rat, then that is great; one of the purposes of the FOI Act will have been met. It is just self-indulgent for Ms Hammerton Cole to think that journalists will just make up allegations about SES officials of the Federal Court without any evidence. They would be liable for damages for publishing libellous content. Ms Hammerton Cole’s reasoning is incredible.

Why should the weight afforded to the public interest is granting access to the names and commencement dates of SES employees be reduced in circumstances where:

a) some of the allegations you have referred to in your internal review request relate to an APSC investigation conducted pursuant to the PID Act which is subject to the confidentiality regime established by the PID Act; and

b) a Commonwealth Ombudsman investigation is underway concerning that APSC investigation and is yet to be finalised?

What do these things have to do with an FOI request?

Firstly, there is no “confidentiality regime” in the PID Act. That claim is false. As I have already noted, there is a secrecy provision in s 65(1) of the PID Act, which binds the investigator, and those involved with the PID investigations, form divulging information they have received in the course of conducting a PID investigation or exercising functions or powers under the PID Act. As I have noted, Ms Hammerton Cole has not established whether she had any such role. I doubt that she did given that the investigation was carried out by an investigator in another agency. In fact, the public interest disclosure was not even made to anybody in the Federal Court. It was made to the Commonwealth Ombudsman, who allocated the PID to the APSC on 11 May 2020 (see https://www.righttoknow.org.au/request/r...). So the claim that there is a general confidentiality regime that Ms Hammerton Cole must have regard to has been made up.

Secondly, the fact that the Commonwealth Ombudsman is investigating the manner in which the APSC handled the PID investigation tends to support the view that the unlawful activities identified in The Australian have substance. Why would the Commonwealth Ombudsman commence a preliminary inquiry under s 7A of the Ombudsman Act and, at it conclusion, decide to investigate the APSC under s 8 of the Ombudsman Act if there was no substance to what was reported in The Australian? And not just any investigation – a category 4 investigation (see https://www.reddit.com/r/auslaw/comments...). The Ombudsman’s own guide provides that “[i]f our investigation has revealed evidence of serious misconduct, the approach should be escalated to category 4 at the earliest opportunity.”

Why would the Ombudsman immediately escalate the investigation to a category 4 investigation if there was no serious misconduct?All the more reason why there is a public interest in granting access to the names of registrars and their commencement dates so that the Australian public can make sense of what is going on.

Thirdly, an oversight body can get an investigation terribly wrong. Why else would the Commonwealth Ombudsman be investigating the APSC’s handling of a PID investigation if the Ombudsman wasn’t convinced that there was something seriously wrong with the investigation? And if the APSC can get it wrong, so too can the Ombudsman. The best way to ensure accountability in the Executive is to let the Australian people assess decisions and documents recording those decisions. That is yet another reason why the public interest is, contrary to what Ms Hammerton Cole claims, in disclosure of the information requested under s 17 of the FOI Act.

Stephanie left an annotation ()

Request for the Information Commissioner

As part of the IC review, I would like the Information Commissioner to reconsider the details set out in Part IV of the original decision maker's section 17 document. That is, I would like the Information Commissioner to consider the documents that Ms Hammerton Cole claims were not covered by my FOI request - the documents relating to the:

a) SES 1 "District Registrar";
b) SES 1 "National Judicial Registrar";
c) SES 1 "Chief Information Officer"; and
d) SES 1 "Chief Information Officer".

Federal Court of Australia

 
 
  [1]Office of the Australian Information Reference Code:  
Commissioner ICR_10-50257109-2840
 

 
You submitted a form called: FOI Review_
 
Your form reference code is: ICR_10-50257109-2840

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]Office of the Australian Information Reference Code:  
Commissioner ICR_10-50257109-2840
 

 
You submitted a form called: FOI Review_
 
Your form reference code is: ICR_10-50257109-2840

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: MR22/01257

 

By email: [FOI #8790 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 MR22/01257.

 

Yours sincerely

 

Freedom of Information Regulatory Group

Office of the Australian Information Commissioner

 

 

 

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