Documents demonstrating that a statutory agency is capable of contravening paragraph 13(11)(a) of the Public Service Act 1999 (Cth), as Kate McMullan found

Currently waiting for a response from Australian Public Service Commission, they should respond promptly and normally no later than (details).

Dear Australian Public Service Commission,

An FOI request was sent to the Office of the Commonwealth Ombudsman on 24 January 2023. The request can be seen here: https://www.righttoknow.org.au/request/m....

Part of a complaint that was made to the Office of the Commonwealth Ombudsman on 26 October 2021 has been included in the FOI request as contextual information.

The part of the complaint that was made to the Office of the Commonwealth Ombudsman on 26 October 2021 reads:

"The following is noted in a complaint document provided to the Office of the Commonwealth on 26 October 2021:

There is a fundamental flaw in the final investigation report Ms McMullan prepared into allegations about irregular and unlawful recruitment practices relating to the recruitment of Ms Wu and that flaw is, in my opinion, based on a misapprehension of the applicable law on the part of Ms McMullan.

The APS Employment Principles are set out in section 10A of the PS Act and, thus, form part of a law of the Commonwealth. For convenience, the APS Employment Principles are set out below:

The APS is a career-based public service that:

(a) makes fair employment decisions with a fair system of review; and
(b) recognises that the usual basis for engagement is as an ongoing APS employee; and
(c) makes decisions in relation to engagement and promotion that are based on merit; and requires effective performance from each employee; and
(d) provides flexible, safe and rewarding workplaces where communication, consultation, cooperation and input from employees on matter that affect their workplaces are valued; and
(e) provides workplaces that are free from discrimination, patronage and favouritism; and
(f) recognises the diversity of the Australia community and fosters diversity in the workplace.

Subsection 10A(2) of the PS Act provides:

For the purposes of [making a decision relating to engagement and promotion that is based on merit], a decision relating to engagement or promotion is based on merit if:

(a) all eligible members of the community were given a reasonable opportunity to apply to perform the relevant duties; and
(b) an assessment is made of the relative suitability of the candidates to perform the relevant duties, using a competitive selection process; and
(c) the assessment is based on the relationship between the candidates' work-related qualities and the work-related qualities genuinely required to perform the relevant duties; and
(d) the assessment focuses on the relative capacity of the candidates to achieve outcomes related to the relevant duties; and
(e) the assessment focuses on the relative capacity of the candidates to achieve outcomes related to the relevant duties; and
(f) the assessment is the primary consideration in making the decision.

When interpreting a provision of a statute, the interpreter must interpret the provision in a way that would ‘best achieve the purpose or object of the [statute] (whether or not that purpose or object is expressly stated in the [statute])’ and that interpretation ‘is to be preferred to each other interpretation’ [ Acts Interpretation Act 1901 (Cth), s 15AA. On the applicability of section 15AA to legislative instruments, notifiable instruments and other instruments, please refer to subsection 13(1) of the Legislation Act 2003 (Cth) and subsection 46(1) of the Acts Interpretation Act 1901 (Cth)].

The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose.  Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense.  This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction.  Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected [SZTAL v Minister for Immigration and Border Protection [2017] HCA 34, [14]].

The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined by reference to the language of the instrument as a whole [Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28, [69]].

A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where the conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as is possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions. Reconciling conflicting provisions will often require the court to determine which is the leading provision and which the subordinate provision, and which must give way to the other. Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme [Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28, [70]].

It cannot go unnoticed that the APS Employment Principles set out in section 10A of the PS Act refer to the ‘APS’ and the APS’s role in making fair decisions, decisions based on merit and the like. It cannot go unnoticed that the APS Employment Principles set out in section 10A of the PS Act do not refer to a Statutory Agency, as that word is defined in section 7 of the PS Act, as having a role in making fair decisions, decisions based on merit and the like.

When one construes section 10A in the light of the other provisions of the PS Act, the following obtains.

First, it is not open for a person interpreting the PS Act to conclude that the ‘APS’, referred to in section 10A of the PS Act, constitutes an entity that is independent (in terms of legal consequences or incidents, like legal personality) of its constituents in the way that a body corporate is independent of its corporators or directors. In the light of section 9 of the PS Act, the better view is to conclude that the reference to the ‘APS’ in section 10A is a shorthand for the collective of employees of the Commonwealth, being persons engaged under either section 22 or section 72 of the PS Act, and Agency Heads. Accordingly, it would not be open for a person interpreting section 10A of the PS Act to conclude that, by implication or otherwise, the APS Employment Principles apply to the ‘APS’ in a sense where the APS is independent of its constituents and to which legal consequences or incidents apply independent of the consequences or incidents that apply to its constituents.

Second, it is not open for a person interpreting section 10A of the PS Act to conclude that section 10A, on its own, imposes a legal obligation on somebody or something. In the absence of paragraph 13(11)(a) of the PS Act, a person interpreting section 10A might have had to, by way of implication, discern on whom the obligations set out is section 10A of the PS Act would fall but, as has been noted:

[a] legislative instrument must be construed on the prima facie basis that that its provisions are intended to give effect to harmonious goals. Where the conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as is possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions [Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28, [70]].

Properly construed, one must conclude that section 10A of the PS Act is, for want of a better description, a ‘declaratory’ provision; ‘declaratory’ in the sense that the content of obligations is declared in that provision. But section 10A of the PS Act does not, explicitly, impose any legal obligations on somebody or something when one accepts that the ‘APS’, referred to in section 10A of the PS Act, does not constitute an entity that is independent (in terms of legal personality) of its constituents in the way that a body corporate is independent of its corporators or directors. One must turn to the Code of Conduct set out in section 13 and, specifically, paragraph 13(11)(a) of the PS Act, as well as subsections 14(1) and 14(2) of the PS Act, to determine on whom the obligation to abide by the content set out in section 10A is imposed. The answer to the question ‘to whom does the obligation to abide by the content set out in section 10A apply?’ is the following: ‘[a]n APS employee must at all times behave in a way that upholds the APS Values and APS Employment Principles’ (emphasis added). Subsection 14(1) of the PS Act extends the operation of the obligation on an APS employee to Agency Heads. Subsection 14(2) of the PS Act extends the operation of the obligation on an APS employee to statutory officer holders. This interpretation best gives effect to the purpose and language of those provisions while maintaining the unity of all the relevant statutory provisions.

Importantly, paragraph 13(11)(a), and subsection 14(1) and 14(2), of the PS Act set out, exhaustively, the class of somebodies or somethings that is bound to abide by the content sent out in section 10A of the PS Act. A Statutory Agency, as that word is defined in the PS Act, is not bound by the content of section 10A of the PS Act, and with good reason.

A Statutory Agency is, for the purposes of the PS Act, an ‘organising principle’ through which the Commonwealth, a constitutional person, may, among other things, engage a person as an employee of the Commonwealth. It is a given that the Commonwealth, an abstraction that has legal personality, can only give effect to its will through the actions and omissions of people. That is because the Commonwealth does not have ‘agency’, in the philosophical sense of that word.

Statutory Agencies are ordinarily defined by reference to:

• a class, or classes, of employees; and
• an agency head; and
• possibly, statutory appointees and officers; and
• often, some purpose or end that the employees, agency head and others work towards or fulfil.

The Federal Court of Australia Statutory Agency is defined in section 18ZE of the Federal Court of Australia Act 1976 (Cth). That section reads as follows:

18ZE Statutory Agency etc. for purposes of the Public Service Act 1999

(1) For the purposes of the Public Service Act 1999:

(a) the persons referred to in subsection (2) together constitute a Statutory Agency; and
(b) the Chief Executive Officer is the Head of that Statutory Agency.

(2) The persons are the following:

(a) the Chief Executive Officer;
(b) the APS employees referred to in the following provisions:

(i) section 18N of this Act;
(ii) section 38N of the Family Law Act 1975;
(iii) section 101, subsection 106(1), subsection 107(1), subsection 109(1), subsection 110(1), section 111A and section 112 of the Federal Circuit Court of Australia Act 1999;
(iv) subsection 130(3) of the Native Title Act 1993.

Ms McMullan’s finding that ‘the recruitment process that ultimately led to the FCASA promoting Ms Wu into this position did not comply with the APS Employment Principles under subsection 10A(2) of the PS Act …' is without basis because the Federal Court of Australia Statutory Agency did not promote Ms Wu. A person, or people, who constitutes, or constitute, the Federal Court of Australia Statutory Agency, which has no independent legal personality, may be said to have promoted Ms Wu. But if Ms McMullan’s interpretation is to be accepted, one implication is that Ms Wu, as well as every other person that constitutes the Federal Court of Australia Statutory Agency, failed to comply with subsection 10A(2) of the PS Act and, thus, contravened a law of the Commonwealth. That is absurd.

Moreover, and as articulated in part 5.5.1, the obligation to comply with the content set out in subsection 10A(2) of the PS Act lies, exhaustively, on the class of ‘somebodies’ or ‘somethings’ that is bound to abide by the content sent out in section 10A of the PS Act. That class is constituted by APS employees, Agency Heads and Statutory Office Holders. A finding that ‘the recruitment process … did not comply with the APS Employment Principles under subsection 10A(2) of the PS Act …’ is misconceived. It was not open to Ms McMullan to find that a process had failed to comply with subsection 10A(2) of the PS Act.

In making her findings, Ms McMullan fails to identify, and to attribute responsibility to, the APS employees, agency head or statutory office holders who contravened subsection 10A(2) of the PS Act and, instead, attributes responsibility for the contravention of a law of the Commonwealth on either a process or a statutory agency. Both these attributions are impermissible and are the consequence of a failure on the part of Ms McMullan to correctly apprehend and apply the relevant law.

Ms McMullan’s conclusion that:

… the relevant employment practices of the FCASA were therefore in contravention of section 10A of the PS Act disclosable conduct, within the meaning of item 1 of the table in subsection 29(1) of the PID Act, has therefore been engaged in by the FCASA on the basis that the relevant employment practice in relation to the engagement of Ms Wu was conducted in contravention of the PS Act, being a Commonwealth law,

is wrong.

Paragraph 29(1)(a) of the PID Act defines disclosable conduct as ‘conduct of a kind mentioned in the … table that is conduct engaged in by an agency’.

Item 1 of the table refers to ‘conduct that contravenes a law of the Commonwealth, State or a Territory’.

The law of the Commonwealth that Ms McMullan claims that the Federal Court of Australia Statutory Agency contravened was the PS Act. As I have already explained, a statutory agency is not capable of contravening the section 10A of the PS Act. That is a declaratory provision. The obligation to abide by section 10A of the PS Act falls on APS employees, agency heads and statutory office holders.

Paragraph 29(1)(a) of the PID Act does not alter the class of ‘somebodies’ or ‘somethings’ that must abide by the section 10A of the PS Act. Indeed, paragraph 29(1)(a) does not alter any law of the Commonwealth such that the application of that law extends to an agency about which a complaint is made.

Properly understood, subsection 29(1) of the PID Act sets out the grounds upon which one may make a disclosure about a public official, contracted services provider or agency, so long as the threshold informational value in the disclosure (namely, ‘tending to show’), or the discloser’s belief about the threshold information value in the disclosure, is, pursuant to section 26 of the PID Act, met.

Subsection 29(1) of the PID Act is not a provision that extends the substance of the laws of the Commonwealth, States or Territories, be that substance permissive, prohibitive, licensory, obligatory or whatever else, to public officials, agencies or contracted service providers, as those terms are defined in the PID Act. If that were the case, the Federal Court of Australia Statutory Agency could, for example, be found to have engaged in the battery of an individual because that tortious act was committed by a constituent member of the Federal Court of Australia Statutory Agency. That is absurd, yet that conclusion would obtain if Ms McMullan’s line of reasoning is accepted as correct.”

The following is noted in a decision letter issued by Mark Anstey on 12 December 2022 about the complaint:

“Based on our investigation, which involved seeking copies of internal records from the Investigating Agency and interviewing the PID Investigator, I consider there are several ways in which the PID investigation and associated report could have been improved.”

Thus, it is clear that Mark Anstey interviewed Kate McMullan, the person who conducted the public interest disclosure investigation at the Australian Public Service Commission.

The following is also noted in Mark Anstey’s decision letter dated 12 December 2022:

“Finding the agency engaged in disclosable conduct

You raised concern a finding was made that the agency breached the Code of Conduct and individual findings were not made. You asserted the finding the agency engaged in disclosable conduct arguably carried with it an implication that certain officers may have engaged in disclosable conduct. The investigation report does not demonstrate the PID Investigator turned their mind to this question and, due to insufficient investigation records having been retained by the Investigating agency, we are unable to form a view either way that the PID Investigator sufficiently considered this issue. We will be providing feedback to the agency on these points.”

It’s also clear that when the original public interest disclosure was allocated to the Australian Public Service Commission by Elizabeth Bennet in the Office of the Commonwealth Ombudsman on 11 May 2020, the disclosure was allocated because allegations of contraventions of Commonwealth laws related to contraventions of the Code of Conduct. Ms Bennet noted, in a letter dated 11 May 2020:

“The allegations generally relate to registrar recruitment processes and decisions at the Federal Court Statutory Agency (FCSA). The brief summary below is not intended to be relied upon as a full account of the disclosure.”

In the letter dated 11 May 2020, Elizabeth Bennet also noted:

“Dear Mr Woolcott

Notification of allocation – section 44(1) of the Public Interest Disclosure Act 2013

I am writing to notify you of our decision to allocate an internal public interest disclosure to the Australian Public Service Commission (APSC) for handling under the Public Interest Disclosure Act 2013 (the PID Act).

On 7 May 2020, an Authorised Officer of the APSC consented to the allocation.

Please note that the information below is based solely on that provided by the discloser and was assessed by this Office under section 26 of the PID Act as an internal public interest disclosure.

It is the responsibility of your agency to determine how this matter will be handled from this point. However we note that this allocation decision has been made with reference to the broad powers available to consider the matter by virtue of an allocation under the PID Act and under the Public Service Act 1999 (PS Act) (in particular s 41(2)(o)).”

Therefore, it is clear that the allegations in the public interest disclosure were about contraventions of the Code of Conduct.

Under the FOI Act, I request access to documents in the possession of the Australian Public Service Commission that demonstrate that a statutory agency is capable of contravening paragraph 13(11)(a) of the Public Service Act 1999 (Cth), which provides that “an APS employee must at all times behave in a way that upholds the APS Values and APS Employment Principles” (the APS Employment Principles are recorded in section 10A of the Public Service Act 1999 (Cth)).

Yours faithfully,

Martin

FOI, Australian Public Service Commission

OFFICIAL
Our ref: LEX 443

Dear Martin

I am writing to acknowledge receipt of your request under the Freedom of Information Act 1982 for access to documents held by the Commission.

The timeframe for responding to your request is 30 days from the date of receipt. This timeframe may be extended in certain circumstances. You will be notified if these circumstances arise and the timeframe is extended.

FOI OFFICER
Legal Services

Australian Public Service Commission
Level 4, B Block, Treasury Building, Parkes Place West, PARKES ACT 2600
GPO Box 3176 CANBERRA ACT 2601

t: 02 6202 3720  w: www.apsc.gov.au        
                           

This email and any attachments may contain confidential or legally privileged information, and neither are waived or lost if the email has been sent in error. If you have received this email in error, please delete it (including any copies) and notify the sender. Please consult with APSC Legal Services before using disclosing any part of this email or attachments to a third party.

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