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        

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This email and any attachments may contain confidential or legally
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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        

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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
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show quoted sections

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.

show quoted sections

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        

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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

 
 
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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

 

 

 

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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

 

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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

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