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Documents relating to allegations of misconduct in the Federal Court of Australia and an abortive PID Investigation carried out by Kate McMullan of the APSC

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Dear Attorney-General,

This is a request for documents under the FOI Act.

Please provide access to any and all documents sent or received by the Attorney-General, the Hon Mark Dreyfus QC MP, in relation (even if that relationship is tangential) to the contents of the following articles published in The Australian on 8 February 2022, 9 February 2022, 10 February 2022 and 29 March 2022:

“Untried lawyers score key positions”;
“Federal Court boss warned on job rule sidestep”;
“Top judge warned of registrar overhaul”; and
"Spotlight shines back on watchdog".

Broadly speaking, the first article relates to a seemingly abortive investigation conducted under the Public Interest Disclosure Act 2013 by acting assistant commissioner Kate McMullan of the Australian Public Service Commission about the recruitment of 2 candidates, one a female and the other a male, who did not possess essential qualifications for registrar roles.

The female candidate, whose identity has been established as a result of the publication of her promotion notice by an FOI Officer in the Federal Court (see https://www.righttoknow.org.au/request/u...), was found by by Kate McMullan to have been promoted even though the female candidate was not admitted as a practitioner of the Supreme Court of a State or Territory, or the High Court of Australia, but was selected over a field of candidates all of whom were admitted to practice in the Supreme Court of a State or Territory, or the High Court of Australia. Ms McMullan also appears to have concluded that “ the relevant employment practices of the FCSA were therefore in contravention of section 10A of the PS Act, and that disclosable conduct, within the meaning of item 1 of the table in subsection 29(1) of the PID Act, has therefore been engaged in ... 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."

The male candidate, a National Registrar, of which there are, and have been, only three according to the Annual Reports of the Federal Court, was engaged even though he had never been admitted to the Supreme Court of a State or Territory and, as a result, had never managed cases before superior courts of record in Australia, despite both these criteria being essential to selection. Moreover, the male candidate was selected ahead of eminently qualified candidates, one of whom had been a litigator specialising in federal matters since 1994, and who had previously been a deputy district registrar, was an academic affiliated with the University of New South Wales and had published several books about Federal Court litigation (query whether this is a reference to Dr Natalie Cujes, formerly a Deputy District Registrar of the Federal Court in the ACT District Registry of the Federal Court).

Broadly speaking, the second article refers to a seemingly abortive investigation conducted under the Public Interest Disclosure Act 2013 by acting assistant commissioner Kate McMullan of the Australian Public Service Commission about the recruitment of “National Judicial Registrars”, and the unlawful allocation of classifications under rule 6 of the Public Service Classification Rules 2000 (Cth) to some National Judicial Registrars to get around the cap on SES band positions imposed on the Federal Court statutory agency by the Australian Public Service Commission. It appears that most of the people engaged in or promoted to the role of National Judicial Registrar, such role bearing an SES Band 1 classification under rule 9 of the Public Service Classification Rules 2000 (see pages 35-40 of the document associated with PA2925-06/8 on the Federal Court’s disclosure log at www.fedcourt.gov.au/disclosurelog), were allocated Executive Level 2 classifications under rule 6 of the Public Service Classification Rules 2000 (Cth) so that the Federal Court statutory agency could get around the cap on SES band positions imposed on the Federal Court statutory agency by the Australian Public Service Commission.

Broadly speaking, the third article relates to to a seemingly abortive investigation conducted under the Public Interest Disclosure Act 2013 by acting assistant commissioner Kate McMullan of the Australian Public Service Commission about Warwick Soden and Sia Lagos, among others, and over Justice Greenwood’s objections about the legality of their actions, allocating an Executive Level 2 classification to “the most senior registrar in Queensland” under rule 6 of the Public Service Classification Rules 2000 (Cth), despite that registrar applying for, and successfully being promoted to, a National Judicial Registrar & District Registrar role that had been classified at the Senior Executive Band 1 classification under rule 9 of the Public Service Classification Rules. The identity of the most senior registrar in Queensland has been established (see, for example, https://www.righttoknow.org.au/request/s... https://www.righttoknow.org.au/request/d... and https://www.righttoknow.org.au/request/s...), as have the facts that he applied for an SES Band 1 classified role and that the selection process for that SES Band 1 classified role was certified as complying with section 10A of the Public Service Act 1999, and the Australian Public Service Commissioner’s Directions 2016 (Cth), by Kerryn Vine-Camp, the First Assistant Commissioner at the Australian Public Service Commission in 2018 (see document 2 – https://www.righttoknow.org.au/request/s...). The names of the members of the selection panel that promoted Mr Belcher are also known (see for example, https://www.righttoknow.org.au/request/s... https://www.righttoknow.org.au/request/d... and https://www.righttoknow.org.au/request/s...).

Broadly speaking, the fourth article relates to:

a) a preliminary inquiry, mounted in late December 2021 under section 7A of the Ombudsman Act 1976 (Cth), by the Commonwealth Ombudsman into the seemingly abortive public interest disclosure investigation conducted by acting assistant commissioner Kate McMullan of the Australian Public Service Commission; and
b) a formal investigation, mounted in late March 2022 under section 8 of the Ombudsman Act 1976 (Cth), by the Commonwealth Ombudsman after having determined, under the preliminary inquiry, that the public interest disclosure investigation conducted by acting assistant commissioner Kate McMullan of the Australian Public Service Commission was seriously problematic (so serious that the investigation was immediately escalated to a category 4 investigation (the significance of which is captured on pages 50 and 52-53 of the Commonwealth Ombudsman's Work Practices Manual for complaint management available here – https://www.righttoknow.org.au/request/w...).

Should it assist, copies of some of the articles can be accessed without charge here:

https://www.reddit.com/r/auslaw/comments...

https://www.reddit.com/r/auslaw/comments...

https://www.reddit.com/r/auslaw/comments...

Documents may be provided in digital format by return email.

Yours faithfully,

Alex

FOI Requests, Attorney-General

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FOI Requests, Attorney-General

1 Attachment

Dear Alex

Freedom of Information Request AGO FOI22/01

I refer to your request to the Attorney-General under the Freedom of
Information Act 1982 (FOI Act) for access to documents.

Your request is for:

any and all documents sent or received by the Attorney-General, the Hon
Mark Dreyfus QC MP, in relation (even if that relationship is tangential)
to the contents of the following articles published in The Australian on 8
February 2022, 9 February 2022, 10 February 2022 and 29 March 2022:

“Untried lawyers score key positions”;

“Federal Court boss warned on job rule sidestep”;

“Top judge warned of registrar overhaul”; and

"Spotlight shines back on watchdog".

If you disagree with this interpretation of your request, please let me
know in writing as soon as possible.

Your request was received on 10 June 2022 and the 30 day statutory period
for processing your request commenced from the day after that date. You
should therefore expect a decision by 11 July 2022. However, the period of
30 days may be extended if the Attorney-General's Office (the Office)
needs to consult third parties or for other reasons. We will advise you if
this happens.

The Office's practice is to not disclose personal information of staff of
the department and other government authorities, where that information is
not publicly known or routinely disclosed (e.g. names of junior officers
and contact information). The names of senior officers will generally be
disclosed. In addition, duplicates and incomplete email chains within the
scope of the FOI request will be excluded.

Please note that, with some exceptions (such as personal information),
documents released under the FOI Act may later be published online on the
department's disclosure log
[1]http://www.ag.gov.au/RightsAndProtection....

If you have any questions, please contact me by telephone on (02) 6141
6666 or by email to [2][email address].

Yours sincerely

Euphrasia

FOI Officer

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