Dear Australian Public Service Commission,

There is a redacted document published on the APSC’s FOI disclosure log. The reference is LEX 695. The document’s date of access was 27 November 2023 and the document is described as a public interest disclosure report regarding the recruitment of registrars of the Federal Court of Australia: https://www.apsc.gov.au/sites/default/fi...

Pursuant to the Freedom of Information Act 1982 (Cth), I request an unredacted copy of that report regarding the recruitment of registrars of the Federal Court of Australia.

Yours faithfully,

BZ

Dear Sue Mahony,

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

I am writing to request an internal review of Australian Public Service Commission's handling of my FOI request 'Document - LEX 695'.

I will address the key grounds you have raised, which you claim support your decision.

Yu

At paragraph 11, you claim that Yu applies to your decision. It is actually not relevant to your decision because the material facts in this instance diverge from the material facts in Yu.

At no point was it raised in Yu that the Bureau of Meteorology’s PID investigation was fundementally flawed. You have acknowledged, at paragraph 21, that “some of the documents related to this [PID] process have been made available online”, with many of those documents having been made available by the APSC.

For example, the APSC has published the Commonwealth Ombudsman’s letter commencing an investigation into Kate McMullan’s mishandled PID investigation: https://www.righttoknow.org.au/request/9....

The Ombudsman would not commence an investigation into the mishandling of a PID investigation if it had not been mishandled. So comparing the instant fact situation to that in Yu is misleading and fallacious.

Section 47E(d)

You claim that section 47E(d) of the FOI Act applies to the document but it does not.

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: FOI Guidelines 6.123.

The PID report is riddled with errors and falsehoods.

At the last round of Senate Estimates, Senator Shoebridge took up the challenge that the Hon Anthony Whealy KC issued to the administrators of the Federal Court in an article published in The Australian and, in that vein, issued the Federal Court with many probing questions about the decision of members of a selection committee to selection “Mr B” (one of the registrars referred to in the PID report) ahead of meritorious candidates like Dr Natalie Cujes: see the website of the Australian Parliament –

https://www.aph.gov.au/api/qon/downloade...

https://www.aph.gov.au/api/qon/downloade...

https://www.aph.gov.au/api/qon/downloade....

According to an article published in The Australian on 8 February 2022, Kate McMullan stated that “in [Mr B’s] case, there was a clear pathway to eligibility within a reasonable time after the recruitment process, which was signalled in his application and CV and that it was reasonable to expect that other members of the community who had an anticipated date for admission to legal practice in the very near future would have felt it open to them to apply for the position”: https://www.fedcourt.gov.au/__data/asset....

Obviously Kate McMullan misapprehended the legal issue before her because she was investigating whether three member of a selection committee engaged a candidate who did not have essential qualifications for a role ahead of candidates who did, contrary to the merit based selection laws set out in the Public Service Act 1999 (Cth).

Neither the Hon Anthony Whealy KC nor Senator Shoebridge appear to have bought Kate McMullan’s fallacies and, accordingly, they have sought explanations in the light of the requirements of the Public Service Act 1999 (Cth) (and not Kate McMullan’s made up criteria).

Since the report has inefficiencies on its face and discloses the unlawfulness of Kate McMullan’s investigation, section 47E(d) has no application to the document.

Section 47E(c)

The reasons set out in respect of section 47E(d) apply in respect of s 47E(c).

The report has been released under the FOI Act by the Office of the Commonwealth Ombudsman.

A substantially unredacted copy of Kate McMullan’s PID report has been released by the Office of the Commonwealth Ombudsman and is, as you have conceded about many of the documents relating to this request, been published online, according to law. Therefore, it is pointless and, on a legal level, unlawful to refuse to grant access to anything that is more redacted than the published version. I’ll spare the APSC the embarrassment of the link to the document but will gladly provide it during the IC review stage if the APSC does not publish the PID report on internal review.

Section 47F

Section 47F does not apply because the names of the registrars have been published repeatedly in documents that have been released under the FOI Act. Links to the documents published online can be provided at an opportune time.

Digital fingerprints on documents

There is no point in withholding your identity (“SM” “EL2”) as the decision maker if the decision you have published has your digital fingerprints all over it.

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,

BZ