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Documents about “a role review process that had resulted in certain positions being found suitable for either a Legal 2 or (SES1) position, depending on the relative complexity and work load.”

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Dear Federal Court of Australia,

Under the FOI Act, I request access to any and all documents (including but not limited to classification evaluation documents prepared for the “Legal 2” and “SES1” classification level registrar positions referred to in an Australian article published on 9 February 2022 titled Federal Court boss warned on job rule sidestep) that support acting assistant commissioner Kate McMullan’s conclusion that, in relation to the “National Judicial Registrar role”, “a role review process … had resulted in certain positions being found suitable for either a Legal 2 or (SES1) position, depending on the relative complexity and work load.”

Yours faithfully,

Helen

External FOI, Federal Court of Australia

1 Attachment

OFFICIAL
Dear Helen

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 Helen

Please find attached correspondence from the Federal Court of Australia.

Kind regards

FOI Officer
Federal Court of Australia

show quoted sections

Dear Registrar 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 'Documents about “a role review process that had resulted in certain positions being found suitable for either a Legal 2 or (SES1) position, depending on the relative complexity and work load.”'.

In your reasons for decision you state:

You have requested access to certain documents "that support acting assistant commissioner Kate McMullan's conclusion regarding the Court's "role review process" in relation to the National Judicial Registrar role. As a matter of logic, documents that support Ms McMullan's conclusion regarding the Court's "role review process" regarding the National Judicial Registrar role, must be documents that were provided by the Court to Ms McMullan ...

With respect, you are wrong. You have committed a logical fallacy.

The fact that Ms McMullan concluded that “a role review process … had resulted in certain positions being found suitable for either a Legal 2 or (SES1) position, depending on the relative complexity and work load" does not mean that, as a matter of logic, Ms McMullan's conclusion was based on documents, provided by the Court, that support that conclusion. A logical possibility is that Ms McMullan drew a conclusion on the basis of no probative evidence. It is logically possible for Ms McMullan to have made up the conclusion. Therefore, your statement is logically fallacious.

I made an identical FOI request to the APSC and, unfortunately for you Ms Hammerton Cole, the APSC identified the documents they claim that Ms McMullan relied on to conclude that “a role review process … had resulted in certain positions being found suitable for either a Legal 2 or (SES1) position, depending on the relative complexity and work load". Those documents are:

a) Email correspondence between Commission and Federal Court of Australia titled
“PRIVATE AND CONFIDENTIAL” dated 27 October 2020; and
b) Judicial Registrar Recruitment Outcome document prepared by Federal Court of
Australia.

You, like the APSC, have relied on ss 47C, 47E(c), 47E(d) and 47F of the FOI Act to deny access to the document. The problem with this is that a document that sets out a role review would not contain any personal information. As Mircea has noted:

More than anybody else in the country, the assistant commissioner for integrity, performance and employment policy would know that "role reviews" are reviews of roles. To put it in terms that you will understand, an assessment of a role is not an assessment of a person. It is an assessment of the groups of duties relative to the Commissioner's work level standards. It is impersonal. It has nothing to do with an individual or individuals. I don't need to quote chapter and verse from the Australian Public Service Classification Guide, which is available here:

https://www.apsc.gov.au/working-aps/aps-...

Going back to the documents, you claim that the document provided to Kate McMullan of the APSC that evidences that “a role review process that had resulted in certain positions being found suitable for either a Legal 2 or (SES1) position, depending on the relative complexity and work load" is exempt for having personal information. How could that be? A role review has nothing to do with individuals. Therefore I am immediately suspicious of your claims that this document is, in fact, the document that I requested, or if it is, that the conditional exemptions you have claimed do in fact apply.

A document that contains notes about applying Executive Level 2 (or Legal 2) classifications, under rule 6 of the Public Service Classification Rules 2000, to Mr Belcher and Mr Trott so that the scarce SES Band 1 classifications that they would have been assigned could be, to quote Justice Greenwood, "taken elsewhere in the organisation" is not a document that could, as a matter of logic (to use your words), ever support support acting assistant commissioner Kate McMullan’s conclusion that, in relation to the “National Judicial Registrar role”, “a role review process … had resulted in certain positions being found suitable for either a Legal 2 or (SES1) position, depending on the relative complexity and work load.” That is because a role review process has nothing to do with the allocation of classifications under rule 6 of the Public Service Classification Rules 2000. The classification of a role is handled under rule 9 of the Public Service Classification Rules 2000 and it is an entirely impersonal exercise. The role has nothing to do with a person. It follows that a document supporting the conclusion that “a role review process … had resulted in certain positions being found suitable for either a Legal 2 or (SES1) position, depending on the relative complexity and work load" could never have personal information on it and could, thus, never be the subject of a conditional exemption under section 47F of the FOI Act.

Do you see how your reasoning and logic fails you?

I'm willing to bet that the document you claim supports Ms McMullan's conclusion that, in relation to the “National Judicial Registrar role”, “a role review process … had resulted in certain positions being found suitable for either a Legal 2 or (SES1) position, depending on the relative complexity and work load" in, in fact, not such a document. I'm willing to bet, based on Justice Greenwood's public criticisms of Mr Soden and Ms Lagos, that it is a document on which notes have been recorded about how to deny Murray Belcher and Russell Trott the ascription of the classifications they were lawfully entitled to having succeeded in being selected for SES Band 1 roles on their merits, and how to move those scarce SES Band 1 classifications elsewhere in the organisation so that people who did not apply for the SES Band 1 National Judicial Registrar role, which you have refused to provide vacancy notifications and classification evaluations for, could be handed an SES Band 1 classification without actually being the subject of a merit based selection process. In other words, the document evidences cronyism and patronage, and the unlawful denial of promotion to the senior executive service for Mr Belcher and Mr Trott.

I relied on Mircea's and on Marcus' reasoning for internal review with the FOI request I made to the APSC. Aside from my own reason, I adopt their reasons for internal review.

The links to the internal review requests are recorded below:

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

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

The reasons provided in those internal review decisions are correct. I adopt them and record them below:

MIRCEA

Dear Ms Strangio,

Thank you for your decision.

Your decision does not make much sense. I will explain below.

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 'Role review processes in the Federal Court for National Judicial Registrars'.

You will note that I asked the APSC for all documents (including classification assessments, broadbanding proposals etc) that were provided to Kate McMullan of the Australian Public Service Commission which support her conclusion that allegations of impropriety and, presumably, unlawful conduct in the context of the recruitment of National Judicial Registrars were unsubstantiated because there had been “a role review process that had resulted in certain positions being found suitable for either a Legal 2 or (SES1) position, depending on the relative complexity and work load.”

What does this mean? It means that the documents I am asking for are:

1. documents that were provided to Kate McMullan; and
2. are evidence that “a role review process that had resulted in certain positions being found suitable for either a Legal 2 or (SES1) position, depending on the relative complexity and work load.”

First, in your decision you claim that the documents are exempt for, among other things, having personal information.

That immediately raises red flags.

More than anybody else in the country, the assistant commissioner for integrity, performance and employment policy would know that "role reviews" are reviews of roles. To put it in terms that you will understand, an assessment of a role is not an assessment of a person. It is an assessment of the groups of duties relative to the Commissioner's work level standards. It is impersonal. It has nothing to do with an individual or individuals. I don't need to quote chapter and verse from the Australian Public Service Classification Guide, which is available here:

https://www.apsc.gov.au/working-aps/aps-...

Going back to the documents, you claim that the document provided to Kate McMullan of the APSC that evidences that “a role review process that had resulted in certain positions being found suitable for either a Legal 2 or (SES1) position, depending on the relative complexity and work load" is exempt for having personal information. How could that be? A role review has nothing to do with individuals. Therefore I am immediately suspicious of your claims that this document is, in fact, the document that I requested, or if it is, that the conditional exemptions you have claimed do in fact apply.

Second, you claim that the document is a recruitment outcome document. Another red flag. How can the outcome of a recruitment process determine the scope of a role, and the groups of duties to be performed in that role, by reference to the Commissioner's work level standards? The role assessment, whether it is a review or whether it is an assessment for a new role necessarily precedes any recruitment process and certainly the outcome of that process.

Again, this document cannot be what I asked for.

Moreover, you claim that parts of the document are exempt on the ground of irrelevance. What could be irrelevant in a document that is a record of the reassessment of the scope of a role (i.e. the groups of duties to be performed) by reference to the Commissioner's work level standards?

Do you understand why your decision letter makes no sense?

Having read some of the responses that you have provided, I have had cause to question whether you know what you are doing. This decision has only cemented my concerns about your ability to make lawful decisions under the FOI Act.

That is to say nothing, of course, of the fact that the APSC is under investigation by the Commonwealth Ombudsman for the PID investigation that Kate McMullan, the then assistant commissioner for integrity, performance and employment policy, conducted. It was obviously botched because the Ombudsman conducted a preliminary inquiry and, once that inquiry ended, the Ombudsman decided to investigate the APSC under s 8 of the Ombudsman Act, immediately escalating the investigation to "Category 4". How the Australian Public Service Commissioner could look senators in the eye and claim, as he does in his hot pocket brief, that the APSC takes PID investigations seriously is beyond me. He must have been one hell of a diplomat.

I invite the person who will be conducting the internal review to make a lawful decision and one that can withstand scrutiny on its face (i.e. I've not even seen these documents and based on the description of the documents have been able to determine that what you have recorded in your decision is nonsense).

MARCUS

Dear Ms Strangio,

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 'Documentary evidence provided to Kate McMullan in relation to investigation conducted about allegations of impropriety in the Federal Court'.

I have read Mircea's criticisms of your decision, which have been set out here:

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

Mircea is on the money.

I adopt his criticisms and request internal review on those grounds.

I also point out two more things.

The first point is this - you claim that the documents which support Ms McMullan's conclusion that allegations of impropriety and, presumably, unlawful conduct in the context of the recruitment of National Judicial Registrars were unsubstantiated because there had been “a role review process that had resulted in certain positions being found suitable for either a Legal 2 or (SES1) position, depending on the relative complexity and work load” are the same documents which support Ms McMullan's "conclusion that the SES Band 1 National Judicial Registrar & District Registrar – QLD was the subject of “a role review process … [that] had resulted in certain positions being found suitable for” either the “Legal 2” or SES Band 1 classifications. How could that be? How could the same document contain evidence of role reviews for two distinct roles - one being the National Judicial Registrar role that was broadbanded over the executive level 2 and SES 1 classifications, and the other being the SES Band 1 National Judicial Registrar & District Registrar - QLD role that Murray Belcher was promoted to, which was, mysteriously, subjected to a role review after he was promoted to an SES Band 1 position?

The second point is this - Velan asked, in almost substantially identical terms, for documents "recording the 'role review processes' that Kate McMullan based her conclusions on", and both you and Mr Hetherington refused to provide those documents on the grounds that those documents could not be found. Once Velan applied for IC review and pointed out that he had made a request in identical terms for the documents from the Federal Court, you have now decided to align your response with the Federal Court's response. That is very suspicious. Of course, as Mircea has pointed out, the documents you are relying on cannot be documents that support Ms McMullan's conclusion that the SES Band 1 National Judicial Registrar & District Registrar – QLD was the subject of “a role review process … [that] had resulted in certain positions being found suitable for” either the “Legal 2” or SES Band 1 classifications because the document sets out recruitment outcomes for the recruitment of registrars in the Federal Court.

As Mircea stated:

How can the outcome of a recruitment process determine the scope of a role, and the groups of duties to be performed in that role, by reference to the Commissioner's work level standards? The role assessment, whether it is a review or whether it is an assessment for a new role, necessarily precedes any recruitment process and certainly the outcome of that process.

For the reasons identified by Mircea and Marcus I request an internal review of your whole 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...

Good luck.

Helen

External FOI, Federal Court of Australia

OFFICIAL
Dear Helen

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 19 May 2022.

Kind regards

FOI Officer
Federal Court of Australia

show quoted sections

External FOI, Federal Court of Australia

1 Attachment

OFFICIAL
Dear Helen

Please find attached correspondence from the Federal Court of Australia.

Kind regards

FOI Officer
Federal Court of Australia

show quoted sections

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