Dear Department of Agriculture, Water and the Environment,

CONTEXT OF REQUEST

I refer to an article published in The Australian on 8 February 2022. The name of article was Untried lawyers score key positions.

In that article, it was noted that Kate McMullan of the APSC had conducted an investigation (https://www.righttoknow.org.au/request/u...) and found that:

a) admission as a legal practitioner had been listed as an essential requirement for a registrar role in the Federal Court;
b) a selection committee had not considered this essential requirement when it hired a female candidate to fill the registrar role;
c) the female candidate "was selected over a field of candidates all of whom did have this work related quality."

It has since come to light that:

a) the role in question was an NCF Registrar role in the Federal Court (https://www.righttoknow.org.au/request/u...
b) the role was advertised in Public Service Gazette PS38 of 2016 with a vacancy number of NN10690165 (https://www.righttoknow.org.au/request/u...
c) the candidate selected was Caitlin Wu (https://www.righttoknow.org.au/request/u...
d) Ms Wu's promotion notice was published in Public Service Gazette PS49 of 2016 with a promotion number of NN10698155 (https://www.righttoknow.org.au/request/u...
e) Ms Wu was promoted from an APS4 position into an Executive Level 1 position (https://www.righttoknow.org.au/request/u...
f) the selection panel consisted of Sia Lagos, David Pringle and Andrea Jarratt (https://www.righttoknow.org.au/request/u...
g) Sia Lagos, the current CEO and Principal Registrar of the Federal Court, was the chairperson of the selection panel (https://www.righttoknow.org.au/request/u...
h) Sia Lagos was the Agency Head's delegate for the selection process (https://www.righttoknow.org.au/request/u... and
i) Sia Lagos endorsed the recommendation of the selection panel in her capacity as the Agency Head's delegate on 2 December 2016 (https://www.righttoknow.org.au/request/u...).

A public interest disclosure was made, among other things, about the selection process that saw Ms Wu promoted to the NCF Registrar role to the Commonwealth Ombudsman in 2020. On 11 May 2020 the Commonwealth Ombudsman allocated the public interest disclosure to the Australian Public Service Commission (https://www.righttoknow.org.au/request/r...). In the allocation letter, which had a reference of PID-2020-400006, and which was addressed to Peter Woolcott, the Australian Public Service Commissioner, the author of the letter 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))." (https://www.righttoknow.org.au/request/r...).

Section 41(2)(o) of the Public Service Act 1999 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.

The disclosure related to alleged breaches of the Code of Conduct. The Office of the Commonwealth Ombudsman thought the public interest disclosure was of such a nature that it needed to be allocated to an agency other than the home agency, the Federal Court. That is an extraordinary allocation because when deciding to allocate a public interest disclosure to an agency, the authorised officer who has received the disclosure must have regard to the principle that an agency should not handle the disclosure unless some or all of the disclosable conduct with which the information may be concerned relates to the agency (PID Act, s 43(3)(a)(i)).

The public interest disclosure was investigated by Kate McMullan, the Acting Assistant Commissioner, Integrity, Performance and Employment Policy in the Australian Public Service Commission, and the Australian Public Service Commissioner's delegate under the PID Act (https://www.righttoknow.org.au/request/o...). Ms McMullan finalised her report on 9 December 2020 (https://www.righttoknow.org.au/request/o...).

According to her PID report, Ms McMullan made the following findings:

a) "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 ..." (https://www.righttoknow.org.au/request/w... and
b) "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." (https://www.righttoknow.org.au/request/w...).

Despite making those findings, Ms McMullan though that the most appropriate response to Sia Lagos, David Pringle and Andrea Jarratt deliberately selecting an unmeritorious candidate ahead of meritorious candidates who met the essential selection criteria for the role was:

"I recommend that FCSA staff be provided with guidance and/or training about the APS Employment Principles prior to undertaking any recruitment action, to prevent further incidents of this nature.

I also recommend that relevant FCSA staff familiarise themselves with the APS Code of Conduct, and in particular subparagraph 13(11)(a) of the Public Service Act 1999, which states, relevantly, that employees must at all times behave in a way that upholds the APS Employment Principles."

Marco Spaccavento, the Assistant Commissioner, Workplace Relations at the Australian Public Service Commission has established that Ms McMullan did not comply with procedures established under subsection 15(3) of the Public Service Act 1999 when conducting the investigation into the alleged breaches of the Code of Conduct, even though that is an essential requirement of conducting investigations relating to alleged breaches of the Code of Conduct under paragraph 53(5)(b) of the PID Act (the reason the Commonwealth Ombudsman allocated the PID to the APSC was that the allegations related to contraventions of the Code of Conduct).

The following propositions apply in relation to the Code of Conduct and Code of Conduct investigations:

I) the test for establishing whether an employee has breached the Code of Conduct is an objective one (https://www.mpc.gov.au/case-summaries/ap...
II) the propriety of the actions of a public servant should be assessed by reference to the standard of conduct expected of a public servant, having regard principally to the expectations of the public (Bercove v Hermes (No 3) (1983) 51 ALR 109, 117 - 120);
III) that senior executive service (SES) employees model and promote the APS Values, the APS Employment Principles and compliance with the Code (Public Service Act 1999 s 35(5);
IV) the appropriate sanction in any case will be the sanction that the decision-maker considers meets the object of imposing a misconduct sanction, which is not to punish or exact retribution but to maintain and protect the integrity and reputation of the APS and ensure adherence to proper standards of conduct (Commissioner of Taxation v Day (2008) 236 CLR 163 at [34]–[35]; McManus v Scott-Charlton (1996) 70 FCR 16 at 24–25);
V) Members of the Australian Public Service are enjoined by the Public Service Act (s 13) to act with care and diligence and to behave with honesty and integrity. This is indicative of what throughout the whole period of the public administration of the laws of the Commonwealth has been the ethos of an apolitical public service which is skilled and efficient in serving the national interest (Commissioner of Taxation v Futuris Corp Ltd (2008) 237 CLR 146 at [55]);
VI) consistent with the significance of the APS as a constituent part of the system of representative and responsible government, the APS Code of Conduct regime is properly directed to maintaining and protecting an apolitical and professional public service that is skilled and efficient in serving the national interest (Comcare v Banerji (2019) 267 CLR 373 generally);
VII) The APS Code of Conduct regime is in the nature of a civil penalty regime directed at deterring conduct in breach of the Code and thus maintaining and protecting the public and constitutional purposes served by the APS (Comcare v Banerji (2019) 267 CLR 373 at [40]-[44]);
VIII) the purpose of the misconduct regime under the PS Act is protective (rather than punitive) – that is, the regime is intended to protect the public, maintain proper standards of conduct by APS employees and protect the reputation of the APS (Bragg v Secretary, Department of Employment, Education and Training [1996] FCA 476);
IX) in assessing the appropriate sanction (if any), it is necessary to consider the nature and gravity of the misconduct, the need for both specific and general deterrence (to deter any future misconduct by the specific employee and by employees generally) and the personal circumstances of the employee (Comcare v Banerji (2019) 267 CLR 373 at [40]-[45]);
X) As a matter of law, that discretion must be exercised reasonably and, therefore, according to the nature and gravity of the subject contravention. As with other civil penalties, the essence of the task is to put a price on the contravention sufficiently high to deter repetition by the contravenor and others who might be tempted to contravene, but bearing in mind that a penalty of dismissal must not be “harsh, unjust or unreasonable”. Unquestionably, there are cases of breach of s 13(11) that are so serious in the damage done to the integrity and good reputation of the APS that the only appropriate penalty is termination of employment … (Comcare v Banerji (2019) 267 CLR 373 at [40]).

It has been established that Sia Lagos, David Pringle and Andrea Jarratt also constituted the selection committee that selected Murray Belcher as the SES 1 National Judicial Registrar & District Registrar - QLD (https://www.righttoknow.org.au/request/d...), even though he was not allocated an SES1 classification pursuant to rule 6 of the Public Service Classification Rules (https://www.righttoknow.org.au/request/m...), and even though Justice Greenwood went on the record in The Australian to criticise Warwick Soden and Sia Lagos for their roles in denying Mr Belcher lawful promotion to the senior executive service of the APS (Top judge warned of registrar overhaul, published on page 7 of the The Australian on 10 February 2022; https://www.reddit.com/r/auslaw/comments...).

The evidence tends to suggest that Sia Lagos, David Pringle and Andrea Jarratt are repeat offenders when it comes to misconduct relating to employment decisions. It is clear that Kate McMullan “considered” the allegations relating to Murray Belcher's selection (https://www.righttoknow.org.au/request/r...), which is also under a cloud.

So Sia Lagos, David Pringle, and Andrea Jarratt select an unmeritorious candidate for a Registrar position in the Federal Court, Sia Lagos approves the selection committee's recommendation that this unmeritorious candidate be selected ahead of other candidates, all of whom had met essential requirement of having been admitted to the Supreme Court of a State or Territory, and the appropriate response was a training exercise for the staff of the Federal Court Statutory Agency.

How can Ms McMullan's response to the findings of fact that she made be considered adequate in the light of I - X above?

FOI REQUEST

Under the FOI Act I request access to any and all of the Department's documents relating to sanction decisions for contraventions of the Code of Conduct set out in the Public Service Act 1999 (Cth).

You may send the documents to me by return email.

Yours faithfully,

raphael

Foi, Department of Agriculture, Water and the Environment

Dear Raphael

 

Acknowledgement of your Freedom of Information Request No: LEX 27488

 

I refer to your request received by the then Department of Agriculture,
Water and the Environment on 30 June 2022 for access to documents under
the Freedom of Information Act 1982 (FOI Act) made in the following terms:

 

‘…. Under the FOI Act I request access to any and all of the Department's
documents relating to sanction decisions for contraventions of the Code of
Conduct set out in the Public Service Act 1999 (Cth)..’

 

On 1 July 2022, the former Department of Agriculture, Water and the
Environment became the Department of Agriculture, Fisheries and Forestry
(department) and your request is now considered part of the functions of
that department.

 

The department notes that in your request, you have not specified a
timeframe for the documents that you are requesting. A timeframe can
assist the department conduct searches for the relevant documents that you
have sought. If you would like to provide a timeframe for your request,
please respond to this email by COB Thursday 7 July 2022. If the
department does not receive a response from you, the department will
continue your request of 30 June 2022.

 

Your address

 

The FOI Act requires that you provide us with an address which we can send
notices to. You have advised your electronic address is
[1][FOI #9067 email]. We will send all notices
and correspondence to this address.

 

Please advise us as soon as possible if you wish correspondence to be sent
to another address or if your address changes. If you do not advise us of
changes to your address, correspondence and notices will continue to be
sent to the address specified above.

 

Disclosure log

 

Please note that information released under FOI Act may be published in a
disclosure log on the department's website. Section 11C of the FOI Act
requires this publication, however it is subject to certain exceptions,
including where publication of personal, business, professional or
commercial information would be unreasonable.

 

Exclusion of junior department employee details

 

The department is working towards ensuring that all employees have a
choice about whether they provide their full name and direct contact
details in response to public enquiries. Where such details are included
in the scope of a request, this may add to processing time and applicable
charges as it may be necessary to consider whether the details are exempt
under the FOI Act. On this basis, unless you tell us otherwise, we will
assume that these details are out of scope of your request and they will
be redacted under section 22 of the FOI Act.

 

Further assistance

 

If you have any questions please email [2][AWE request email].

 

Kind regards

 

FOI Contact Officer | Information Law Team  |  Legal Division

T: (02) 6274 2098 | E: [3][AWE request email]

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Dear FOI contact officer,

In your email of 6 July 2022, you stated:

The department notes that in your request, you have not specified a
timeframe for the documents that you are requesting. A timeframe can
assist the department conduct searches for the relevant documents that you
have sought. If you would like to provide a timeframe for your request,
please respond to this email by COB Thursday 7 July 2022. If the
department does not receive a response from you, the department will
continue your request of 30 June 2022.

To assist the Department, I will provide you with a timeframe.

I would like access to any and all of the Department's documents relating to sanction decisions for contraventions of the Code of Conduct set out in the Public Service Act 1999 (Cth) that were, or remain, in force at any point in time between 1 January 2020 and the date of my FOI request.

What I mean by "in force" is probably best illustrated by examples.

Suppose there was a document relating to sanction decisions that was created on 1 April 2016 and that that the document was not updated until 1 December 2020. Suppose, also, that the document relating to sanction decisions would have been used in relation to a sanction decision between 1 January 2020 and 1 December 2020, when the document was revised or updated. That document would have been "in force" for the purposes of my request.

Take another example. Suppose a document relating to sanction decisions was created on 1 April 2016 and it is still relied on by the Department in respect of sanction decisions. That document would have been in force between 1 January 2020 and the date of the FOI request. That document would also be a document "in force" for the purposes of my request.

I hope that timeframe assists the Department.

Yours sincerely,

raphael

Foi, Department of Agriculture, Water and the Environment

Good afternoon

 

The department publishes its Procedures for determining breaches of the
Australian Public Service (APS) Code of Conduct and the imposition of
sanctions on our [1]website. The document available was ‘in force’ from 11
March 2020 and remains current.

 

Should you be seeking more specific information, for instance, details
concerning individual matters and/or the sanction(s) applied, we will
require that you provide us with further specific and detailed
information.  We anticipate there may be limitations on the information
able to be disclosed under the Freedom of Information Act 1982 (Cth) due
to confidentiality restrictions and potentially a large volume of
documents involved.

 

We would appreciate if you could let us know as soon as possible if the
website link above satisfies your request. If it does not, we would
appreciate you providing us with further information regarding the
specific documents you are seeking. If we do not hear from you by 13 July
2022 we will continue to process your revised request.

 

Please do not hesitate to contact [2][AWE request email] if you have any
questions.

 

Kind regards

 

FOI Contact Officer | Information Law Team  |  Legal Division

E: [3][AWE request email]

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Foi, Department of Agriculture, Water and the Environment

1 Attachment

Dear Raphael

Please find attached correspondence from the Department of Agriculture,
Fisheries and Forestry.

Kind regards

 

FOI Contact Officer | Information Law Team | Legal Division

E: [1][AWE request email]

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Dear Ms Mand,

Thank you for your letter.

In your letter you note:

Before a final decision is made on your request, you can submit a revised request.
Within the next 14 days (consultation period) you must do one of the following in writing:

• withdraw the request;
• make a revised request; or
• tell us that you do not want to revise your request ...

If you would like to make a revised request, you could consider:

- narrowing the scope of your request to a specific individual matter and/or the sanction applied
for breaches of the Code of Conduct as set out in the Public Service Act 1999 (Cth) as they relate to the department; and
- narrowing the timeframe of your request (for example, to a specific number of days or months
only).

In the light of what you have stated, I would like to revise my FOI request.

FOI REQUEST

Under the FOI Act I request access to any and all of the Department's:

a) administrative documents that applied during 1 January 2020 - 20 July 2022; and/or
b) operational documents not published on the Department's website, and that applied during 1 January 2020 - 20 July 2022,

on how sanction decisions for contraventions of the Code of Conduct, set out in the Public Service Act 1999 (Cth), were or are applied.

To clarify, I am not asking you for any documents that record actual sanction decisions against Commonwealth employees. The scope of administrative and/or operational documents should be understood to extend to manuals, guidelines, procedures and other documents that set out how sanction decisions for contraventions of the Code of Conduct were or are applied by sanction decision makers in the Department in the course of a Code of Conduct investigation.

You may send the documents to me by return email.

Yours sincerely,

raphael

Foi, Department of Agriculture, Water and the Environment

Dear Raphael

Thank you for your email of 21 July 2022. We understand your revised
request to be as follows:

 

‘Under the FOI Act I request access to any and all of the Department's:

a) administrative documents that applied during 1 January 2020 - 20 July
2022; and/or

b) operational documents not published on the Department's website, and
that applied during 1 January 2020 - 20 July 2022,

on how sanction decisions for contraventions of the Code of Conduct, set
out in the Public Service Act 1999 (Cth), were or are applied.

 

To clarify, I am not asking you for any documents that record actual
sanction decisions against Commonwealth employees. The scope of
administrative and/or operational documents should be understood to extend
to manuals, guidelines, procedures and other documents that set out how
sanction decisions for contraventions of the Code of Conduct were or are
applied by sanction decision makers in the Department in the course of a
Code of Conduct investigation.’

 

The department will now continue your FOI request on the basis of your
revised request. The decision on your request is due by 3 August 2022.

Kind regards

 

FOI Contact Officer | Information Law Team  |  Legal Division

E: [1][AWE request email]

show quoted sections

Foi, Department of Agriculture, Water and the Environment

1 Attachment

Dear Raphael

 

Please find attached correspondence from the Department of Agriculture,
Fisheries and Forestry.

 

Kind regards

FOI Contact Officer | Information Law Team  |  Legal Division

T: (02) 6274 2098 | E: [1][AWE request email]

show quoted sections