Dear Australian Public Service Commission,

Under section 53 of the PID Act, to the extent that an investigation under the PID Act relates to an alleged breach of the Code of Conduct (within the meaning of the Public Service Act 1999), the principal officer or their delegate must comply with the procedures established under subsection 15(3) of the Public Service Act.

According to an article published in the Australian on 8 February 2022 (Untried lawyers score key positions) “[i]n late December 2020, Ms McMullan wrote to Ms Lagos to inform her she had found the recruitment process that led to the court promoting [a female to the position of registrar] had breached the Public Service Act …”

Presumably, this contravention of the Public Service Act was a contravention of the Code of Conduct because paragraph 13(11)(a) of the Public Service Act requires all APS employees to, at all times, behave in a manner that upholds the APS Employment Principles (among other things).

Part A

Under the APSC’s procedures established under s 15(3) of the Public Service Act:

If a determination is made in relation to a suspected breach of the Code by a person who is, or was, an APS employee in the Commission, a written record must be made of:
a. the suspected breach; and
b. the determination; and
c. any sanctions imposed as a result of a determination that the employee has breached the Code; and
d. if a statement of reasons was given to the person regarding the determination in relation to suspected breach of the Code, or, in the case of an employee, regarding the sanction decision, that statement of reasons or those statements of reasons.

Under the FOI Act, I request a copy of the statement of reasons prepared by Ms McMullan in relation to the contravention of the Public Service Act. The document may be provided to me by return email.

Part B

Under the APSC’s procedures established under s 15(3) of the Public Service Act:

A determination may not be made in relation to a suspected breach of the Code by a person unless reasonable steps have been taken to
a. inform the person of:
i. the details of the suspected breach of the Code, including any subsequent variation of those details; and
ii. where the person is an APS employee, the sanctions that may be imposed on them under subsection 15(1) of the Act; and
b. give the person a reasonable opportunity to make a statement in relation to the suspected breach.

It is public knowledge that Ms McMullan found that the female registrar was selected over a field of candidates who had been admitted as legal practitioners, admission being an essential qualification for the registrar position (see article published in the Australian on 8 February 2022 referred to above).

Under the FOI Act, I request copies of any documents provided to the person or persons who was or were suspected of breaching the Public Service Act (i.e. probably s 13(11)(a) of the Act), those persons presumably being responsible for selecting the female registrar above other qualified and meritorious candidates, by Ms McMullan.

The documents may be provided by email.

Yours faithfully,

raphael

FOI, Australian Public Service Commission

5 Attachments

OFFICIAL

Dear Applicant

 

The Australian Public Service Commission (APSC) is writing to acknowledge
receipt of your request under the Freedom of Information Act 1982 (FOI
Act).

 

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.

 

Regards

 

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 3500  w: [1]www.apsc.gov.au        

[2]three hexagons[3]twitter icon [4]facebook
icon                          

 

 

 

 

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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FOI, Australian Public Service Commission

7 Attachments

OFFICIAL

A decision notice is attached.

 

Regards

 

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 3500  w: [1]www.apsc.gov.au        

[2]three hexagons[3]twitter icon [4]facebook
icon                          

 

 

 

 

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.

 

 

 

 

From: FOI <[email address]>
Sent: Friday, 8 April 2022 1:50 PM
To: raphael <[FOI #8696 email]>
Cc: FOI <[email address]>
Subject: SHC22-26777 Acknowledgment [SEC=OFFICIAL]

 

OFFICIAL

Dear Applicant

 

The Australian Public Service Commission (APSC) is writing to acknowledge
receipt of your request under the Freedom of Information Act 1982 (FOI
Act).

 

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.

 

Regards

 

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 3500  w: [5]www.apsc.gov.au        

[6]three hexagons[7]twitter icon [8]facebook
icon                          

 

 

 

 

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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Dear Ms Strangio,

Fancy that - a PID investigation that was not conducted according to law by Kate McMullan, an acting assistant commissioner of the APSC. We wouldn't want to write off Ms McMullan and her abortive PID investigation entirely without giving the APSC another opportunity to look for the documents requested.

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 'Documents relating to breaches of the Public Service Act 1999'.

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...

There is a silver lining. The FOI requests and the responses to them have made for entertaining reading. Who needs reality TV?

Yours faithfully,

raphael

FOI, Australian Public Service Commission

OFFICIAL
Dear Applicant

The Australian Public Service Commission (APSC) is writing to acknowledge receipt of your request for internal review under the Freedom of Information Act 1982 (FOI Act).

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

Regards

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 3500  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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FOI, Australian Public Service Commission

6 Attachments

OFFICIAL

Dear Applicant,

 

Please see attached.

 

Kind regards

 

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 3500  w: [1]www.apsc.gov.au        

[2]three hexagons[3]twitter icon [4]facebook
icon                          

 

 

 

 

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.

 

show quoted sections

Dear Mr Spaccavento,

In your internal review decision you state:

No documents exist for Part B because your request assumes incorrect facts
about a public interest disclosure investigation

I am afraid that you are wrong. I have not assumed incorrect facts. By refusing to provide documents under s 24A of the FOI Act and by claiming that I have assumed "incorrect" facts, you have exposed Ms McMullan's and your own incompetence and ignorance respectively.

On 11 May 2020 an authorised officer in the Office of the Commonwealth Ombudsman allocated the PID to the APSC. In the allocation letter to Mr Woolcott (see document 3 - https://www.righttoknow.org.au/request/r...), the officer stated:

"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))."

Section 41(2)(o) of the Public Service Act provides:

... the Commissioner's functions include the following:

(o) to inquire, subject to the regulations, into public interest disclosures (within the meaning of the Public Interest Disclosure Act 2013), to the extent that the disclosures relate to alleged breaches of the Code of Conduct.

Plainly the allocation was made by the Office of the Commonwealth Ombudsman because the allegations, set out in an internal disclosure under the PID Act, pertained to alleged breaches of the Code of Conduct.

You are also aware of Ms McMullan's findings. They have been usefully reproduced on the Right to Know website (see https://www.righttoknow.org.au/request/w...).

Ms McMullan found that "I therefore find on the balance of probabilities that the recruitment process that ultimately led to the FCSA promoting Ms Wu into this position did not comply with the APS Employment Principles under subsection 10A(2) of the PS Act ..." She also found 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 ... 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."

A contravention of section 10A of the Public Service Act can only occur if an APS employee, and SES employee, an Agency Head or a statutory office holder contravenes paragraph 13(11)(a) of the Code of Conduct, which provides:

An APS employee must at all times behave in a way that upholds the APS Values [set out in section 10 of the Public Service Act] and the APS Employment Principles [set out in section 10A of the Public Service Act].

Section 53 of the Public Interest Disclosure Act set out how an investigation is to be conducted under the PID Act.

Subsection 53(1) provides that "An investigation under this Division by the principal officer of an agency is to be conducted as the person thinks fit."

Subsection 53(2) provides that "The principal officer may, for the purposes of the investigation, obtain information from such persons, and make such inquiries, as the principal officer thinks fit."

Paragraph 53(5)(b) provides that "Despite subsections (1) and (2) to the extent that the investigation relates to an alleged breach of the Code of Conduct (within the meaning of the Public Service Act 1999), the principal officer must comply with the procedures established under subsection 15(3) of that Act."

Under the APSC’s procedures established under s 15(3) of the Public Service Act:

A determination may not be made in relation to a suspected breach of the Code by a person unless reasonable steps have been taken to
a. inform the person of:
i. the details of the suspected breach of the Code, including any subsequent variation of those details; and
ii. where the person is an APS employee, the sanctions that may be imposed on them under subsection 15(1) of the Act; and
b. give the person a reasonable opportunity to make a statement in relation to the suspected breach.

So, why is it that there are no documents setting out:

i. the details of the suspected breach of the Code, including any subsequent variation of those details; and
ii. where the person is an APS employee, the sanctions that may be imposed on them under subsection 15(1) of the Act?

Why is it that there are no documents that evidence the fact that Ms McMullan gave the person/s who contravened section 10A (Sia Lagos, David Pringle and Andrea Jarratt) a reasonable opportunity to make a statement in relation to the suspected breach?

Thank you for confirming that the APSC does not have such documents. Thank you for demonstrating the unlawfulness of Ms McMullan's investigation in so far as she failed to comply with paragraph 53(5)(b) of the PID Act. Thank you for demonstrating explicitly what I have for some time known - you are an ignoramus on this issue. You have, in one fell swoop, demonstrated your ignorance and Ms McMullan's incompetence. A masterful own goal.

I intend to apply for IC review of your decision. The APSC can explain to the Information Commissioner why it does not possess documents that it ought to have. The APSC can explain to the Information Commissioner why it is that Ms McMullan failed to comply with paragraph 53(5)(b) of the PID Act. The APSC can explain to the Information Commissioner why it is that you have made false claims about me assuming "incorrect facts".

I invite the APSC's FOI Officers to accuse me of making unsubstantiated allegations, as they have falsely accused others of doing on this website. This website is a wonderful resource. So long as it remains up and running, there will be a public record of all the nonsense its officials have spewed to justify falsehoods and errors.

Yours sincerely,

raphael

Australian Public Service Commission

 
 
  [1]Office of the Australian Information Reference Code:  
Commissioner ICR_10-49317625-2666
 

 
You submitted a form called: FOI Review_
 
Your form reference code is: ICR_10-49317625-2666

To check the progress of your submission and/or confirm it has been
received you should contact the agency that provides the form. These
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References

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Australian Public Service Commission

1 Attachment

Our reference: MR22/00970

 

By email: [FOI #8696 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 MR22/00970.

 

Yours sincerely

 

Freedom of Information Regulatory Group

Office of the Australian Information Commissioner

 

 

 

Notice:

The information contained in this email message and any attached files may
be confidential information, and may also be the subject of legal
professional privilege. If you are not the intended recipient any use,
disclosure or copying of this email is unauthorised. If you received this
email in error, please notify the sender by contacting the department's
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time) and delete all copies of this transmission together with any
attachments.

Dear Mr Spaccavento,

The IC review reference is MR22/00970.

Yours faithfully,

raphael

OAIC - FOI DR,

Our reference: MR22/00970

Agency reference: SHC22-27698

Mr Raphael Lucchese
By email: [1][FOI #8696 email]

Dear Mr Lucchese

Thank you for your application for review. We have today informed the
Australian Public Service Commission that the Information Commissioner
will undertake an IC review and requested information to assist with
progressing the review.

We will provide you with an update when we have heard from the Australian
Public Service Commission.

 

Kind regards

Jennifer Zhou

 

Notice:

The information contained in this email message and any attached files may
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disclosure or copying of this email is unauthorised. If you received this
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Dear Ms Zhou,

Thank you for your update. I eagerly await the APSC's submissions on the matter.

Yours sincerely,

Raphael

OAIC - FOI DR,

Thank you for your email.   

  

This is an automated response to confirm that your email was received by
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at: [1]https://www.oaic.gov.au/freedom-of-infor...
in [2]Part 10 of the [3]FOI Guidelines.  

  

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at: [4]https://www.oaic.gov.au/freedom-of-infor...
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Dear Ms Zhou,

I refer to your email of 15 September 2022. Has the Australian Public Service Commission (APSC) provided any submissions to the OAIC in response to the notice issued by the OAIC that an IC review would be conducted of Mr Marco Spaccavento’s internal review decision (MR22/00970)?

On a related note, I understand that your colleague, Mr Alistair Boyd, has been in contact with Ms Charmaine Sims, General Counsel at the APSC, about another of my IC review requests – request MR22/01292 (see https://www.righttoknow.org.au/request/d...). I had applied for IC review of an affirmation decision deemed to have been made personally by the Australian Public Service Commissioner. The deemed decision affirmed Ms Giorgina Strangio’s decision to refuse access to documents on the basis of a misreading of my FOI request. Ms Strangio claimed that no documents existed / could be found and she refused to grant access to the requested documents pursuant to section 24A of the FOI Act.

An FOI officer in the Legal Services section of the APSC wrote to me on 7 October 2022 and conceded that the deemed refusal decision advanced a falsehood – namely that there were no documents within the scope of my request. The FOI officer in the Legal Services section of the APSC conceded that there were “more than 1,899 documents” within scope. Plainly, the deemed affirmation decision will have to be set aside for the falsehood advanced. On 7 October 2022, I wrote to the FOI officer and criticised his or her reasoning (the FOI officer has not provided his or her name). My critical remarks can be accessed here:

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

It is my understanding that Charmaine Sims of the APSC drew my critical remarks to the attention of the OAIC on 12 October 2022. It is also my understanding that Mr Boyd would contact Charmaine Sims on 20 October 2022 if Ms Sims had not contacted him by then about a proposal that the APSC had put to the OAIC about negotiating the scope of an FOI request that I had made on 14 June 2022. For the OAIC’s information, I have made a good faith attempt to come to an arrangement with the APSC but have not heard from the APSC since I last contacted the nameless FOI officer on 12 October 2022.

My good faith attempts at negotiating an arrangement with the APSC can be gleaned from the correspondence that I sent to the APSC on 7 October 2022, which has been drawn to the OAIC’s attention by Ms Sims, as well as an item of correspondence that I sent to the APSC on 12 October 2022, which can be accessed here:

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

I would appreciate an update on the progress of both MR22/00970 and MR22/01292. You are welcome to send the update relating to MR22/01292 to "foi+request-9018-8620cdc5[at symbol]righttoknow.org.au.

Yours sincerely,

raphael

OAIC - FOI DR,

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Dear Mr Lucchese
Thank you for your email requesting an update on the status of your
matter.
By way of an update, Australian Public Service Commission (the APSC)
responded to our Notice of IC review and provided the following
submission:
Commission submissions

 3. The Commission submits there are no documents within scope of the
Applicant’s request.
 3. The Commission further submits that an IC Review is not the
appropriate mechanism for the Applicant to resolve their grievances
regarding the handling of this Public Interest Disclosure (PID)
investigation. The Commission considers the scope of IC review advised
by the Applicant is not relevant for the purposes of the FOI Act and
it is unclear whether such a contention is generally accepted by the
OAIC as a valid reason for review.

Part A of request

 5. The Commission considers there are two possible interpretations of
scope for Part A of the request. That is, the Applicant is either
requesting a copy of the PID report, or a copy of the statement of
reasons regarding a determination for a suspected breach of the APS
Code of Conduct (the Code).  
 5. The Commission notes the following statements made by the Applicant in
their request:

‘Presumably, this contravention of the Public Service Act was a
contravention of the Code of Conduct’ and ‘If a determination is made in
relation to a suspected breach of the Code […] a written record must be
made of the suspected breach; and the determination; and any sanctions
imposed.’

 7. When read in the context of the Applicant’s request for ‘a copy of
statement of reasons prepared by Ms McMullan in relation to the
contravention of the Public Service Act,’ the Commission considers the
correct interpretation of scope, when considering the wording of the
request in its entirety, is that the Applicant is requesting a copy of
statement of reasons regarding a contravention of the Code.  
 7. Given there was no Code investigation and the relevant PID report did
not contain a statement of reasons relating to a contravention of the
Code, there would simply be no documents in scope of Part A of the
request. As reported in the media, the PID investigation related to a
Federal Court recruitment processes.
 7. The Commission also notes the Applicant has previously made an FOI
request for the outcome of the ‘confidential Australian Public Service
Commission investigation,’ which is the same PID report referred to in
this request. The Commission refused access to that request ([1]link).
It is also for this reason that the Commission has not re-interpreted
the request at this stage to find that the PID report is in scope of
this request.

Part B of request

10. To follow from the above, there are no documents in scope of Part B of
the request because there was no Code investigation.
10. The Commission intentionally avoided being too direct on this in the
IR decision document because providing further information would
disclose information relating to a PID investigation, which is subject
to secrecy provisions under the PID Act. In addition, the Commonwealth
Ombudsman is currently investigating the Commission’s handling of a
PID relating to this issue.

These submissions have now been shared with you for comment. Should you
wish to provide a response to this submission, or make any further
comments in support of the IC review application, please respond to this
email by 8 November 2022.
 If you require further time, please let us know.

Carl English
Intake and Early Resolution Team
[2][IMG]   Freedom of Information Regulatory Group
Office of the Australian Information Commissioner
GPO Box 5288 Sydney NSW 2001  |  [3]oaic.gov.au
1300 363 992  |  [4][email address]

[5][IMG] | [6][IMG] | [7][IMG] |    

 
 
 
 
 
 

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OAIC - FOI DR,

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Dear Mr Lucchese
Thank you for your email requesting an update on the status of your
matter.
I confirm that your matter has been progressing through the initial stages
of an IC review. The initial stages of an IC review may include assessment
by senior member of the FOI Dispute Resolution team, conducting
preliminary inquiries with an agency, requesting submissions from an
agency in support of their FOI decision or requesting documents at issue.
Further information on IC reviews can be found in [1]Part 10 of the FOI
Guidelines and here:
[2]https://www.oaic.gov.au/freedom-of-infor...
Once this stage is completed, the OAIC will contact you regarding next
steps.
 
Kind regards
 

Carl English
Assistant Director
[3][IMG]   Freedom of Information Regulatory Group
Office of the Australian Information Commissioner
GPO Box 5288 Sydney NSW 2001  |  [4]oaic.gov.au
+61 2 9942 4169  |  [5][email address]

[6][IMG] | [7][IMG] | [8][IMG] |    

 
 
 

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OAIC - FOI DR,

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Dear Mr Lucchese
I write to clarify the below. I would appreciate if you could respond by 8
December 2022, if you wish to provide submissions in response. I apologise
for any confusion.
Kind regards

Carl English
Intake and Early Resolution Team
[1][IMG]   Freedom of Information Regulatory Group
Office of the Australian Information Commissioner
GPO Box 5288 Sydney NSW 2001  |  [2]oaic.gov.au
1300 363 992  |  [3][email address]

[4][IMG] | [5][IMG] | [6][IMG] |    

 
 
 

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Dear Mr English,

Part A

The APSC submits that there are two possible interpretations of the scope of part A, claiming those interpretations to be:

1. the applicant has requested a copy of the PID report; or
2. the applicant has requested a copy of the statement of reasons regarding a determination for a suspected breach of the APS Code of Conduct.

The author of the submissions then states:

“Given there was no Code investigation and the relevant PID report did not contain a statement of reasons relating to a contravention of the Code, there would simply be no documents in scope of Part A of the request. As reported in the media, the PID investigation related to a Federal Court recruitment processes.”

In “Untried lawyers score key position”, the following is noted:

“[i]n late December 2020, Ms McMullan wrote to Ms Lagos to inform her she had found the recruitment process that led to the court promoting [a female to the position of registrar] had breached the Public Service Act …”

According to Kate McMullan, sombody failed to comply with subsection 10A(2) of the Public Service Act, which is about employment decisions being based on merit.

Section 13(11)(a) of the Code of Conduct provides that an APS employee must at all times behave in a way that upholds the APS employment principles, which includes s 10A(2) of the Public Service Act. Clearly, somebody contravened section 13(11)(a), which is a provision of the Code of Conduct, because there was a failure to uphold the merit selection principle set out in s 10A(2) of the Public Service Act. Kate McMullan explicitly notes in the PID report that “recruitment process that ultimately led to [redacted] promoting [redacted] into this position did not comply with the APS Employment Principles under subsection 10A(2) of the PS Act in one or more of the following respects”, before setting out four grounds.

The claim that the “PID report did not contain a statement of reasons relating to a contravention of the Code” is, clearly, not true. There was a finding that the APS Employment Principles were not complied with, which is a derivative of a finding that s 13(11)(a) of the Public Service Act (i.e. a section of the Code of Conduct) was contravened.

The APSC’s own documents show that the Commonwealth Ombudsman had allocated the handling of the public interest disclosure to the Australian Public Service Commissioner so that the Commissioner could conduct an investigation pursuant to s 41(2)(o) of the Public Service Act, which provides that the Commissioner has the power to inquire into public interest disclosure to the extent that the disclosure relate to alleged breaches of the Code of Conduct: see https://www.righttoknow.org.au/request/d... for the relevant document (“Attachment 3.1”).

Under the Public Interest Disclosure Act, a investigating officer can conduct a PID investigation as they see fit (s 53(1) of the PID Act), SUBJECT to the requirement to comply with procedures established under s 15(3) of the Public Service Act to the extent that the investigation relates to an alleged breach of the Code of Conduct (s 53(5) of the PID Act). Given that the public interest disclosure investigation conducted by Kate McMullan related to contraventions of the code of conduct, and given that, of necessity, Kate McMullan must have found that, by failing to comply with s 10A(2) of the Public Service Act, the relevant person contravened their duty, under s 13(11)(a) in the Code of Conduct, to at all time behave in a way that upholds the APS employment principles, it follows that Kate McMullan’s investigation had to, by force of law (s 53(5) of the PID Act), comply with the standards in force under s 15(3) of the Public Service Act.

As I have already explained to the staff at the APSC, under the APSC’s procedures established under s 15(3) of the Public Service Act:

if a determination is made in relation to a suspected breach of the Code by a person who is, or was, an APS employee in the Commission, a written record must be made of:
a. the suspected breach; and
b. the determination; and
c. any sanctions imposed as a result of a determination that the employee has breached the Code; and
d. if a statement of reasons was given to the person regarding the determination in relation to suspected breach of the Code, or, in the case of an employee, regarding the sanction decision, that statement of reasons or those statements of reasons.

A determination was made by Kate McMullan that s 10A(2) of the Public Service Act was not complied with and, of necessity, that means that the relevant person contravened their duty, under s 13(11)(a) in the Code of Conduct, to at all time behave in a way that upholds the APS employment principles.

If Ms McMullan did what she was legally obligated to do, Ms McMullan must have provided the person who was found to have failed to comply with s 10A(2) of the Public Service Act and, of necessity, found to have breached s 13(11)(a) of the Public Service Act with a statement of reasons regarding the determination in relation to suspected breach of the Code, or, in the case of an employee, regarding the sanction decision, that statement of reasons or those statements of reasons. It is reasonable for me to assume that Kate McMullan conducted her investigation according to law, is it not?

I am not after a statement of reasons that was prepared in the course of, to quote the author of the submissions, a “Code investigation”. I am after the statement of reasons that would have been prepared by Ms McMullan as a result of her duty UNDER THE PID ACT to conduct her PID INVESTIGATION in accordance with standards in force under s 15(3) of the Public Service Act. Those standards required Ms McMullan to prepare a written record of a statement of reasons regarding the determination (in this instance, the failure to comply with s 10A(2) of the Public Service Act and, of necessity, contravening s 13(11)(a) of the Public Service Act). Under the FOI Act, I requested a copy of the statement of reasons prepared by Ms McMullan in relation to the contravention of the Public Service Act. I would like access to that statement of reasons.

Please ask the Information Commissioner to compel the production of that statement of reasons and, in the light of the FOI Act, make a lawful decision in relation to granting access to the document or refusing access to the document.

Part B

The APSC submits that there are not document in the scope of Part B of the request because there was no Code investigation.

The APSC’s submission proceed on a fallacy. Specifically, the APSC assumes that only if a Code of Conduct investigation is conducted does an investigator need to comply with the standards in force under s 15(3) of the Public Service Act. Clearly, that is a misconception. Ms McMullan was obligated, by force of s 53(5) of the PID Act, to conduct her PID investigation in accordance with standards in force under s 15(3) of the Public Service Act because her PID investigation related to alleged breaches of the Code of Conduct. In fact, a breach of the Code of Conduct was established by Ms McMullan, but even if it had not, Ms McMullan was bound by law to conduct her PID investigation in accordance with standards in force under s 15(3) of the Public Service Act because her PID investigation related to alleged breaches of the Code of Conduct.

Under the standards in force under s 15(3), a determination may not be made in relation to a suspected breach of the Code by a person unless reasonable steps have been taken to
a. inform the person of:
i. the details of the suspected breach of the Code, including any subsequent variation of those details; and
ii. where the person is an APS employee, the sanctions that may be imposed on them under subsection 15(1) of the Act; and
b. give the person a reasonable opportunity to make a statement in relation to the suspected breach.

It is reasonable for me to assume that Kate McMullan conducted her investigation according to law, is it not? It is reasonable for me to assume that Kate McMullan, who made a finding that s 10A(2) of the Public Service Act was not complied with and, of necessity, would have found that s 13(11)(a) of the Public Service Act was contravened (because the duty to comply with s 10A(2) is found in s 13(11)(a) of the Public Service Act):

a. informed the person of:
i. the details of the suspected breach of the Code, including any subsequent variation of those details; and
ii. where the person is an APS employee, the sanctions that may be imposed on them under subsection 15(1) of the Act; and
b. gave the person a reasonable opportunity to make a statement in relation to the suspected breach.

Under the FOI Act, I request copies of any documents provided to the person or persons who was or were suspected of breaching the Public Service Act (i.e. probably s 13(11)(a) of the Act), those persons presumably being responsible for selecting the female registrar above other qualified and meritorious candidates, by Ms McMullan.

Please ask the Information Commissioner to compel the production of that statement of reasons and, in the light of the FOI Act, make a lawful decision in relation to granting access to the document or refusing access to the document.

If you have any questions, please feel free to contact me by return email.

Yours sincerely,

raphael

Dear Australian Public Service Commission,

My submissions in response to the APSC's submission can be found here:

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

Yours faithfully,

raphael

OAIC - FOI DR,

Dear Raphael

Thank you for your further submissions.
Your matter is currently awaiting further assessment by a review adviser. Once your matter has been assessed we will write to you to discuss the next steps.
Kind regards

 Carl English
Intake and Early Resolution Team
Freedom of Information Regulatory Group
Office of the Australian Information Commissioner
GPO Box 5288 Sydney NSW 2001  |  oaic.gov.au
1300 363 992  |  [email address]

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