Documents relating to the promotion of a "District Registrar" to the SES Band 1 classification after 12 June 2020

Response to this request is long overdue. By law, under all circumstances, Federal Court of Australia should have responded by now (details). You can complain by requesting an internal review.

Dear Federal Court of Australia,

In an FOI decision that B Henderson of the Federal Court made on 22 June 2022, the FOI Officer stated that after 12 June 2020, five people have been promoted to SES Band 1 positions in the Federal Court.

According to B Henderson, all five people were Executive Level employees prior to promotion and all five were ongoing, full time APS employees before their respective promotions to SES Band 1 positions.

The SES Band 1 positions that these 5 APS employees were promoted to were:

i) General Counsel;
ii) District Registrar;
iii) National Judicial Registrar;
iv) Chief Information Officer; and
v) Chief Information Officer.

B Henderson's decision can be seen here - https://www.righttoknow.org.au/request/d...

I have pored over the Public Service Gazette and, unlike the SES Band 1 General Counsel role that Scott Tredwell was promoted to (www.apsjobs.gov.au/s/outcome-details?Id=a062P000000NLl1QAG), I have not been able to find a vacancy notification for an SES Band 1 "District Registrar" role that fits the bill, or a promotion notice for a person who was promoted to the SES Band 1 "District Registrar" role.

Under the FOI Act I request:

a) the vacancy notification for the SES Band 1 District Registrar role published in the Public Service Gazette;
b) the position description for the SES Band 1 District Registrar role;
c) any and all classification evaluation documentation for the SES Band 1 District Registrar role;
d) the record of the analysis leading to the task and job design of the SES Band 1 District Registrar role;
e) the record of the supporting reasons for the classification decision, including reference to the comparisons made with formal standards (e.g. the Australian Public Service Commissioner's work level standards);
f) the assessment of the resource impact of the creation or reclassification of the SES Band 1 District Registrar role;
g) the evidence that there was a need for the SES Band 1 District Registrar role;
h) the job application of the Executive Level, ongoing, full time, APS employee who was selected for promotion to the SES Band 1 District Registrar role;
i) the certification that the Australian Public Service Commissioner's representative issued following his or her participation in the selection process for the SES Band 1 District Registrar role;
j) any and all correspondence between staff in the Federal Court and the Australian Public Service Commissioner's representative in relation to the selection process for the SES Band 1 District Registrar role;
k) to the extent that the Australian Public Service Commissioner personally participated in the selection process for the SES Band 1 District Registrar role, any correspondence sent to the Australian Public Service Commissioner or his staff by staff members in the Federal Court in relation to his participation in the selection process for the SES Band 1 District Registrar role;
l) the promotion notice published in the Public Service Gazette following the promotion of the full time, ongoing Executive Level APS employee who was selected for promotion to the SES Band 1 District Registrar role;
m) the record of decision (by a selection panel or otherwise) to select a full time, ongoing Executive Level APS employee for promotion to the SES Band 1 District Registrar role; and
n) the record of the reasons for decision (by a selection panel or otherwise) to select a full time, ongoing Executive Level APS employee for promotion to the SES Band 1 District Registrar role.

Please ensure that you address each of (a) - (m) discretely in your FOI decision letter so that the FOI decision is clearly articulated.

Documents can be sent to me by return email.

Yours faithfully,

Stephanie

External FOI, Federal Court of Australia

1 Attachment

OFFICIAL
Dear Stephanie

Please find attached correspondence from the Federal Court of Australia.

Kind regards,

FOI Officer

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External FOI, Federal Court of Australia

1 Attachment

OFFICIAL
Dear Stephanie

Please find attached correspondence from the Federal Court of Australia.

Kind regards

FOI Officer
Federal Court of Australia

show quoted sections

Dear FOI Officer,

Dear FOI Officer

I contest the recorded charges.

You say that it took 1.5 hours to search for the requested documents. While that may be the case, it is not appropriate to charge me for that time.

According to the FOI Guidelines:

An agency should ensure that the notice to an applicant of a charge fully explains and justifies the charge. Implicit in the ‘lowest reasonable cost’ objective is the requirement for sound record keeping so that an agency’s documents can be readily identified and found when an FOI request is received.

The documents that I have requested are, for the most part, documents that should be maintained in the relevant District Registrar’s APS employee file (please refer to the Administrative Functions Disposal Authority – Personnel Management issued by the authority of the Director General of the National Archives). To the extent that the documents requested in paragraphs c – g are located somewhere other than the District Registrar’s APS employee file, it is reasonable to assume that they would be located one with the other in a folio or file relating to the District Registrar role. The assumption is reasonable because such records should be maintained to ensure the integrity of the classifications and evaluations of roles in agencies (in particular, please refer to Part IV of the Australian Public Service Classification Guide, which was issued by the Australian Public Service Commission in the light of recommendations set out in the APS classification review, published in November 2012).

I think it would be reasonable to assume that it would have taken a few minutes (let’s say six minutes) to access the documents in the APS employee file and, if the documents referred to in paragraphs c – g are located somewhere other than the District Registrar’s APS employee file, then it would have taken a few more minutes (let’s say six minutes) to find that file and access the relevant documents. All up, I think it would be reasonable to say that it would have taken 12 minutes to access the relevant documents if they had been stored appropriately. The total search cost would come to $3.00.

According to the Guidelines:

Agencies and ministers should interpret the ‘lowest reasonable cost’ objective broadly in imposing any charge under the FOI Act. That is, an agency or minister should have regard to the lowest reasonable cost to the applicant, to the agency or minister, and the Commonwealth as a whole. Where the cost of calculating and collecting a charge might exceed the cost to the agency of processing the request, it may generally be more appropriate not to impose a charge.

Let it be conservatively assumed that the FOI Officer who prepared the charge estimate letter and the invoice is paid $40 per hour (including superannuation and leave entitlements). Let it be very generously assumed that it took the FOI Officer 6 minutes to:

a) calculate the charges to be requested;
b) prepare the charge estimate letter;
c) the invoice of deposit; and
d) dispatch the documents by email.

It would have cost the Commonwealth $4.00 for the FOI Officer to do that.

No explanation has been provided as to why it would take 7 hours to:

a) examine the documents retrieved;
b) prepare reasons for decision; and
c) prepare suitable for access.

Without an explanation, that 7 hour figure is simply capricious. It is hard to imagine why documents of the kinds requested would need any significant redaction or amendment. Most of the requested documents are documents that have nothing to do with individuals; they are evaluative documents about a District Registrar role. You have also not noted that any consultations will be required, which I find particularly interesting because I have requested copies of the records of decision and reasons for decision.

The cost of calculating and collecting the charge appears to exceed the cost to the agency of processing the request.

It seems to me that, 26 days after an anodyne request was made for a vacancy notification that cannot be located, and a promotion notice that does not appear to have been published, and a few other pertinent documents, an FOI Officer is desperately attempting to impede access to documents by imposing charges that cannot reasonably be sustained.

It is in the public interest to access the requested documents.

Take the vacancy notification for example. The entire Australian community has a right to apply for an SES Band 1 District Registrar role and if there was no vacancy notification published, then the entire Australian Community was denied the right to apply for that job and to be considered on their merits (please refer to Part 4, Subdivision B of the Australian Public Service Commissioner’s Directions 2022 (Cth) or Part 3, Subdivision B of the Australian Public Service Commissioner’s Directions 2016 (Cth)). By implication, there is a public interest, which affects the entire Australian community, in knowing whether the law as to merit based selection in the Australian Public Service has been contravened, in as much as a vacancy in the Federal Court has not been notified to the Australian community and has been filled without giving all members of the Australian community an opportunity to apply and be considered for that role on their merits.

Is the FOI Officer concerned that more examples of patronage in the Federal Court might come to light if a decision maker in the Federal Court is forced to admit that no vacancy notification exists for the District Registrar role (please refer to “Untried lawyers score key positions”, published in The Australian on 8 February 2022)? Is the FOI Officer concerned that more examples of patronage in the Federal Court might come to light if a decision maker in the Federal Court is forced to admit that other requested documents do not exist?

Yours sincerely,

Stephanie

External FOI, Federal Court of Australia

OFFICIAL
Dear Stephanie

I acknowledge receipt of your email below contesting the charges as advised by letter from the Federal Court of Australia dated 28 July 2022 in relation to your FOI request of 2 July 2022.

Kind regards

FOI Officer
Federal Court of Australia

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External FOI, Federal Court of Australia

2 Attachments

OFFICIAL
Dear Stephanie

Please find attached correspondence from the Federal Court of Australia.

Kind regards

FOI Officer
Federal Court of Australia

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Dear B Henderson,

Please pass this on to the person who conducts Freedom of Information reviews.

I am writing to request an internal review of Federal Court of Australia's handling of my FOI request 'Documents relating to the promotion of a "District Registrar" to the SES Band 1 classification after 12 June 2020'.

I seek internal review of your revised charges decision.

In your decision you claim that the documents that I have referred to relate to “to temporary acting arrangements and, therefore, in my view, there is very little public interest in determining whether ‘a vacancy in the Federal Court has not been notified to the Australian community’ when there was no requirement to advertise a vacancy in the circumstances.”

If the vacancy was not notified, then there can be no document to grant access to. Either the documents within the scope of my request exist or they do not. If the document does not exist, there can be no charge applied for providing a decision to that effect.

In the past, staff members of the Federal Court have misled access applicants about the existence of documents and have insisted on the payment of deposits under the Freedom of Information (Charges) Regulations 2019 (Cth). The access applicant challenged the claim about the very existence of the documents and you conceded the fact that the documents do not exist despite the fact that the an FOI Officer in the Federal Court had demanded payment before the FOI request would be processed (https://www.righttoknow.org.au/request/d...). You were unable to force the access applicant to pay the amount requested. How do I know that I am not being lied to, just like Ray B1 was lied to? FOI decision makers in the Federal Court have, in the past, insisted that documents existed only for people like Ray B1 to demonstrate that those decision makers have been lying about the existence of documents.

There are inconsistencies in the claim that the documents that I seek relate to the temporary acting arrangement for which there would be no documents only to claim that I need to pay for access to documents that probably do not exist. I cannot be confident that I am not being lied to as Ray B1 was lied to. I seek internal review of the revised charges decision on the grounds that I originally propounded and on the grounds of the inconsistencies identified in this email, as well as the fact that decision makers in the Federal Court have been caught lying about the existence of documents and, accordingly, cannot be trusted by members of the public to make consistently truthful decisions.

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...

Yours faithfully,

Stephanie

External FOI, Federal Court of Australia

OFFICIAL
Dear Stephanie,

I acknowledge receipt of your request below for an internal review of the decision made on behalf of the Federal Court of Australia and dated 30 August 2022.

Kind regards,

FOI Officer
Federal Court of Australia

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External FOI, Federal Court of Australia

1 Attachment

OFFICIAL
Dear Stephanie,

Please find attached correspondence from the Federal Court of Australia.

Kind regards,

FOI Officer
Federal Court of Australia

show quoted sections

Stephanie left an annotation ()

REASONS FOR IC REVIEW OF FOI CHARGES DECISION

Claire Hammerton Cole, a registrar of the Federal Court, has decided to uphold B Henderson’s charges decision. I set out my reasons as to why Claire Hammerton Cole’s reasons should be set aside.

REASON 1 – irrelevant reasons based on a false premise

In her decision letter, Claire Hammerton Cole states:

“As explained by the original decision-maker, the documents you requested in relation to the ‘SES Band 1 District Registrar’ role concern a temporary acting arrangement within the Court. For this reason, I fail to see how granting access to documents concerning a temporary acting arrangement within the Court would be ‘in the general public interest or in the interest of a substantial section of the public’ given that such arrangements are not the subject of external merit-based selection processes, which is the basis on which you claim there is a public interest in the release of the documents. Instead, I agree with the original decision-maker that the documents appear to be primarily of interest to you, the applicant, rather than being of broader interest to the general public or a substantial section of the public.”

The claim that the documents I request in relation to the SES Band 1 District Registrar role concern a temporary acting arrangement is not true. If Claire Hammerton Cole had just taken a moment to read my FOI request, she would notice that the majority of the request related to a vacancy, and not to documents evidencing arrangements for a person to temporarily act in a role.

Consider paragraphs a), b), c), d), e), f) and g) of my FOI request.

I requested:

a) the vacancy notification for the SES Band 1 District Registrar role published in the Public Service Gazette;
b) the position description for the SES Band 1 District Registrar role;
c) any and all classification evaluation documentation for the SES Band 1 District Registrar role;
d) the record of the analysis leading to the task and job design of the SES Band 1 District Registrar role;
e) the record of the supporting reasons for the classification decision, including reference to the comparisons made with formal standards (e.g. the Australian Public Service Commissioner's work level standards);
f) the assessment of the resource impact of the creation or reclassification of the SES Band 1 District Registrar role;
g) the evidence that there was a need for the SES Band 1 District Registrar role.

None of the documents requested in these paragraphs is about “a temporary acting arrangement within the Court”, as Claire Hammerton Cole claims.

Therefore, the claim that:

“the documents you requested in relation to the ‘SES Band 1 District Registrar’ role concern a temporary acting arrangement within the Court” is false and Claire Hammerton Cole’s reasoning proceeds on the basis of a false premise.

Now consider paragraphs i) and j).

I requested:

i) the certification that the Australian Public Service Commissioner's representative issued following his or her participation in the selection process for the SES Band 1 District Registrar role;
j) any and all correspondence between staff in the Federal Court and the Australian Public Service Commissioner's representative in relation to the selection process for the SES Band 1 District Registrar role;

No part of paragraphs i) or j) refer to any acting arrangements. I have asked for what I have asked. Take paragraph i) as an example. A certificate should have been issued by the Australian Public Service Commissioner’s representative following his or her participation in the selection process for the SES Band 1 District Registrar role because somebody was recruited into that role in a substantive capacity. The fact that a person might have been temporarily acting in that role is not to the point and has no relevance to the document requested. Claire Hammerton Cole’s reasoning is contrived and misguided.

Indeed, Claire Hammerton Cole concedes the very claim that “the documents you requested in relation to the ‘SES Band 1 District Registrar’ role concern a temporary acting arrangement within the Court” is irrelevant to my FOI request in paragraphs further into her reasons. On pages 5 and 6, she states:

“As already noted in this decision, the original decision-maker explained that the documents requested by you relate to ‘temporary acting arrangements’. Based on this statement, you contend in your internal review request that “if the vacancy was not notified, then there can be no document to grant access to”. Similarly, you assert that ‘there are inconsistencies in the claim that the documents that I seek relate to the temporary acting arrangement for which there would be no documents’. Given that the ‘SES Band 1 District Registrar’ role that is the subject of your FOI request was a temporary acting arrangement for which there was no formal external recruitment process conducted, it is correct there were no documents found with respect to some of the fourteen (14) items contained in your FOI request. For example, given the role was not advertised, there was no vacancy notification found with respect to item (a) of your request.

However, not all of the items listed in your FOI request refer to a vacancy notice or a formal external recruitment process. For example, item (b) of your request seeks a position description for the ‘SES Band 1 District Registrar’ role without any reference to an advertised role or a formal recruitment process and item (g) of your request asks for ‘evidence that there was a need for the SES Band 1 District Registrar role’. Searches for some of the items listed in your FOI request therefore yielded documents, even though the ‘SES Band 1 District Registrar’ was a temporary acting arrangement that was not the subject of an external recruitment process.”

Clearly, Claire Hammerton Coles is acknowledging that the claim “the documents you requested in relation to the ‘SES Band 1 District Registrar’ role concern a temporary acting arrangement within the Court” is false.

Interestingly, Claire Hammerton Cole states that no vacancy notification exists for the SES Band 1 District Registrar role, claiming that there is no vacancy notification because somebody was temporarily acting in a substantive SES Band 1 role. But, then, how was the person who held the substantive SES Band 1 District Registrar role engaged into the role? Did somebody just give a substantive SES Band 1 role to a bloke off the street? Again, the claim that a person was temporarily acting in a SES Band 1 role is of no relevance to the request. I asked for the vacancy notification relating to an SES Band 1 role. Saying that somebody was acting in the role means that there was never a vacancy notification only begs the question how a person who substantively held the role was recruited to fill that role.

If, as Claire Hammerton Cole claims, B Henderson’s claim that an ongoing, full-time APS employee was promoted into the SES Band 1 District Registrar role is a falsehood, then it would follow that there are no documents to provide in response to paragraphs h), l), m) and n) of my FOI request. Of course, that is a big if (and I will return to this point in Reason 3 of reasons for IC review).

REASON 2 – risible claims about Court’s well-organised records in respect of cognate documents about an SES Band 1 District Registrar role

With respect to the search and retrieval charges, Claire Hammerton Cole has stated the following:

“Your FOI request, extracted earlier in this decision, contains fourteen (14) items, each of which requests a different document or category of documents. In order for the Court to comply with its obligations, it was necessary for each of the fourteen (14) items to be considered separately and for ‘all reasonable steps’ to be taken to search for each of the documents or categories of
documents requested. A total of one (1) hour for the search and retrieval of the documents would roughly equate with 4 – 5 minutes being spent on each of the fourteen (14) items listed in your FOI request. This time includes consulting relevant officers, searching digital/hardcopy files, as well as removing/saving relevant documents from files for each of the items. Based on the materials I have reviewed, including the records of searches conducted, I have concluded that one (1) hour of search and retrieval time for the fourteen (14) items listed in your FOI request is reasonable and proportionate. I have come to this conclusion on the basis that the Court maintains a ‘high quality record system’ that is well- organised and ‘enables easy identification and location of documents’.”

These reasons are patently disingenuous. Indeed, these reasons are a joke. If Claire Hammerton Cole is suggesting that a person in the Federal Court needs to search in 14 separate places in relation to a set of cognate documents (documents that relate to a single role), and that each search and retreival attempt takes about 4 – 5 minutes, then what of the claim “I have come to this conclusion on the basis that the Court maintains a ‘high quality record system’ that is well-organised and ‘enables easy identification and location of documents?’” There’s a patent contradiction in the claim that it takes 4 – 5 minutes to search for each document requested in the paragraphs of my FOI request, when those documents are all plainly cognate documents, and that the documents have been maintained in a well-organised and high quality record system. Cognate documents would be co-located if the documents were well-organised. Cognate documents about a single SES Band 1 District Registrar role would certainly be co-located is the documents were maintained in a ‘high quality record system’ that is well organised and enables easy identification and location of the documents. Claire Hammerton Cole’s reasons are, plainly, just rubbish and the proposed charge is a cynical attempt to prevent an access applicant getting access to the requested documents. It would not take 1 hour to locate well organised documents relating to a single role and to charge me for an hours search time is to simply abuse the charge provisions in the regulations. For the reasons I have provided here, Claire Hammerton Cole’s estimate that it will take an hour to search and retrieve the documents should be dismissed off hand.

REASON 3 – inadequacy of reasons claiming that it will take 7 hours to prepare a decision document and Claire Hammerton Cole’s record of deception as an FOI decision maker

Claire Hammerton Cole claims that it will take about 7 hours for the decision maker to prepare a decision and that I should be charged $40 for the preparation of the decision, even though Ms Hammerton Cole has obliquely claimed that many of the documents that I have requested do not actually exist (the consequence being that all that will be noted in the decision letter is that access is refused to those documents). In her decision letter Claire Hammerton Cole states:

“I am satisfied that the estimate of seven (7) hours for decision-making time is appropriate and reasonable. As explained by the original decision-maker, the seven (7) hours of decision-making time that has been estimated includes: examining the documents identified as falling within the scope of your request, consulting with individuals pursuant to s 27A of the FOI Act, considering any applicable exemptions under the FOI Act, drafting the written reasons for decision, and the preparation of any documents to be released (possibly with redactions). Given the fact that your FOI request contains fourteen (14) separate items, as well as the nature of the specific documents identified as falling within the scope of your FOI request, I consider that seven (7) hours is not excessive or unreasonable but, rather, is an accurate and fair estimate of the time required to undertake the work and accords with the ‘lowest reasonable cost objective’.

... I note that the relevant officers of the Court who handle FOI requests are highly skilled and have ample experience in relation to processing FOI requests, including in relation to the application of exemptions contained within the FOI Act.”

Let me begin with the note about relevant officer of the Federal Court who handle FOI request are “highly skilled” and have “ample experience”. That line was used by Nicola Colbran in a decision letter she wrote to Ray: https://www.righttoknow.org.au/request/n....

Ray demolished that claim: https://www.righttoknow.org.au/request/n....

I have reproduced Ray’s devastating attack on that claim below

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There is no way that it would take more than 5 hours for a competent and reasonably efficient public servant to process the FOI Request. The FOI request relates to a single leaf of A4 paper. Now that I have applied for IC review of Ms Colbran’s decision, the onus will be on the Federal Court of Australia to establish that it will take more than 5 hours to handle an FOI request about a single leaf of A4 paper. Ms Colbran claims that the charge is justified and fairly reflects the work involved in providing access to documents because the charge estimate was prepared by Court staff with extensive experience and expertise in the FOI jurisdiction. Let’s have a look at the track record of the extensive experience and expertise of the Federal Court’s staff in relation to the FOI jurisdiction.

The first example has already been set out. B Henderson simply made up the requirement for lawful consultation and was forced into the embarrassing position of confessing to having lied about the need for consultation. So this experienced and expert staff members just made up the fact that documents exist and milked more than the permissible 30 days allowed to respond to an FOI request. Very professional.

The second example relates to Registrar Claire Hammerton Cole. Let’s take a look at one of her decisions.

On 21 March 2022, an access applicant sought access to all the documents (including classification assessments, broadbanding proposals etc) that were provided to Kate McMullan of the Australian Public Service Commission which support her conclusion that allegations of impropriety and, presumably, unlawful conduct in the context of the recruitment of National Judicial Registrars were unsubstantiated because there had been “a role review process that had resulted in certain positions being found suitable for either a Legal 2 or (SES1) position, depending on the relative complexity and work load”: https://www.righttoknow.org.au/request/r....

On 25 March 2022, Ms Hammerton Cole sent the access applicant a letter noting that she would have to engage in consultations for the purposes of section 27A because the document requested contained personal information. Ms Hammerton Cole claimed that, in accordance with subsection 15(6) of the FOI Act, the time to process the FOI request had been lawfully extended: https://www.righttoknow.org.au/request/r....

On 19 May 2022, Ms Hammerton Cole provided the access applicant with a decision claiming that it was against the public interest to grant access to the documents requested: https://www.righttoknow.org.au/request/r....

The access applicant called Ms Hammerton Cole’s bluff and shredded the registrar’s 22 page reasons for decision to bits: https://www.righttoknow.org.au/request/r....

On 20 June 2022, National Judicial Registrar & District Registrar Colbran set aside Ms Hammerton Cole’s 22 pages of nonsense and summed up the situation in one sentence:

“I am satisfied that all reasonable steps have been taken to find
the documents you have requested, but the documents cannot be found or do not exist (see s 24A(1) of the FOI Act).”

See https://www.righttoknow.org.au/request/r....

Let’s take stock of Registrar Hammerton Cole’s “experience” and “expertise” in respect of the decisions she made. The fact is that the documents requested do not exist. Nonetheless, the “experienced” and “expert” Registrar Hammerton Cole claimed that she would need to consult third parties about the contents of non-existent document and, for that reason, the time to deal with the FOI request was to be extended. Then Ms Hammerton Cole dished out a 22 page contrivance about it not being in the public interest to grant access to documents that do not exist, only for the access applicant to pick apart 22 pages of garbage in a few paragraphs. Ms Colbran then stated, unequivocally, that the documents requested do not exist/cannot be found.

So that there is no misunderstanding, the “experienced” and “expert” Claire Hammerton Cole lied about the existence of documents, unlawfully claimed an extension of time on the basis of that lie, and lied, in a 22 page abortion, about the public interest in refusing access to non-existent documents. In case Ms Colbran needs it to be made explicit, there is no lack of understanding on my part about the skill, nuance, time and consideration involved in responding to FOI requests made to the Court. Mendacity, contrivance and the waste of Commonwealth resources are not objects of the FOI Act and the “skill”, “nuance” and “consideration” required to craft mendacious and contrived reasons for refusing access to non-existent documents are irrelevant to a proper understanding of how FOI requests should be handled by officers of the Court.

The fact that Ms Hammerton Cole poured hours of time into her lies has no bearing on a proper and lawful estimate of the time that should be taken to lawfully deal with an FOI request. Ms Colbran claims that the charges have been estimated by officers with “experience” and “expertise” in the FOI jurisdiction. The evidence suggests that Ms Colbran’s claim in respect of the “expertise” and “experience” of this one of the Court’s officers has about as much worth as the contents of a port-a-loo.

The third example relates to Scott Tredwell, the Court’s General Counsel. Let’s take a look at one of his decisions.

On 28 April 2022, the access applicant made a request for vacancy notices for the National Judicial Registrar vacancies that the following people applied for and came to fill:

* Susan O’Connor;
* Phillip Allaway;
* Matthew Benter;
* Rupert Burns;
* Claire Gitsham;
* David Ryan; and
* Tuan Van Le.

See https://www.righttoknow.org.au/request/v....

On 30 May 2022, Registrar Claire Hammerton Cole claimed that there were four gazetted vacancy notices that fell within the terms of the FOI request:

i) a gazette notice for an SES Band 2 Senior National Judicial Registrar vacancy;
ii) a gazette notice for an SES Band 1 National Judicial Registrar & District Registrar vacancy;
iii) a gazette notice for an Executive Level 2 Judicial Registrar vacancy; and
iv) a gazette notice for an Executive Level 2 Deputy District Registrar vacancy.

Ms Hammerton Cole granted access to those documents: https://www.righttoknow.org.au/request/v....

On 9 June 2022, the access applicant sought internal review of Ms Hammerton Cole’s decision because the documents granted access to were not the documents requested: https://www.righttoknow.org.au/request/v.... Anybody with half a brain can see that the documents that Ms Hammerton Cole granted access to are not the documents that the access applicant requested.

On 11 July 2022, Scott Tredwell provided his internal review decision to the access applicant: https://www.righttoknow.org.au/request/v....

In his internal review decision, Scott Tredwell upheld Ms Hammerton Cole’s decision, stating:

“In your review request, you assert, in respect of the FOI decision and the documents provided, that the decision maker has “not provided the documents that I requested in my FOI request”. This is simply not correct.”

The problem?

Another access applicant made an identically worded FOI request to the Federal Court on 1 May 2022 and on 29 August 2022 (after Ms Hammerton Cole, yet again, lied about the need to consult third parties pursuant to section 27A of the FOI Act for non-existent documents: https://www.righttoknow.org.au/request/m...), Nicola Colbran decided that the requested documents do not exist / cannot be found: https://www.righttoknow.org.au/request/m....

Let’s take stock of General Counsel Tredwell’s extensive “experience” and “expertise” in respect of the internal review decision he made. The fact is that the documents requested do not exist. The fact is that despite knowing that the documents do not exist, Scott Tredwell nonetheless, told the access applicant emphatically that his contentions about the documents he was provided with not being the documents he requested were “simply not true”.

It is simply not possible for Nicola Colbran to be correct and for Scott Tredwell to be correct in respect of identically worded requests for the same documents. Either the documents exist or they do not. Plainly, the documents provided by Mr Tredwell are not the documents requested. They are vacancy notifications for entirely different vacancies, some of which are from 2015. The only thing that is “simply not correct” is Mr Tredwell’s insistence that the access applicant has stated a falsehood.

So that there is no misunderstanding, the extensively “experienced” and “expert” Claire Hammerton Cole granted access to documents that the access applicant did not request. Then Mr Tredwell, the Court’s extensively “experienced” and “expert” General Counsel doubled down on Ms Hammerton Cole’s bogus reasons and told the access applicant that his contentions were “simply not correct”, even though it was plain for anybody with half a brain to see that the documents granted access to were irrelevant to the request. On 29 August 2022, Ms Colbran made a decision on an identically worded request, stating that the documents requested do not exist. In case Ms Colbran needs it to be made explicit, there is no lack of understanding on my part about the skill, nuance, time and consideration involved in responding to FOI requests made to the Court. Mendacity, contrivance and the waste of Commonwealth resources are not objects of the FOI Act and the “skill”, “nuance” and “consideration” required to craft mendacious and contrived reasons for refusing access to non-existent documents are irrelevant to a proper understanding of how FOI requests should be handled by officers of the Court.

The fact that Mr Tredwell poured hours of time into his contrived reasons has no bearing on a proper and lawful estimate of the time that should be taken to lawfully deal with an FOI request. Ms Colbran claims that the charges have been estimated by officers with extensive “experience” and “expertise” in the FOI jurisdiction. The evidence suggests that Ms Colbran’s claim in respect of the extensive “expertise” and “experience” of this one of the Court’s officers (the Court’s General Counsel to boot) has about as much worth as the contents of a port-a-loo.

It’s worth noting that, on 15 September 2022, Jennifer Zhou of the Office of the Australian Information Commissioner wrote to the access applicant to note that the Federal Court has been notified that the Information Commissioner will undertake an IC review of the way that Scott Tredwell handled the internal review of the FOI request: https://www.righttoknow.org.au/request/v....

The fourth example relates to an unnamed FOI Officer. Let’s take a look at one of this unnamed individual’s decisions.

On 24 July 2022, I made a request for:

i) the vacancy notification published in the Public Service Gazette for the SES Band 1 National Judicial Registrar role that Susan O'Connor was selected to fill and applied for;
ii) the certification that the Australian Public Service Commissioner's representative issued in the course of his or her participation in the selection process for the SES Band 1 National Judicial Registrar role that Susan O'Connor succeeded in securing;
iii) the record of decision (by a selection panel or otherwise) to select Susan O'Connor to fill the SES Band 1 National Judicial Registrar role, which was made in the course a merit based selection process for the SES Band 1 National Judicial Registrar role that Susan O'Connor was selected to fill; and
iv) the record of the reasons for decision (by a selection panel or otherwise) to select Susan O'Connor to fill the SES Band 1 National Judicial Registrar role, which was made in the course of a merit based selection process for the SES Band 1 National Judicial Registrar role that Susan O'Connor was selected to fill.

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

On 8 August 2022, an unnamed FOI Officer sent me a decision letter: https://www.righttoknow.org.au/request/d.... In that decision letter, the FOI officer claimed that I was liable to pay $5 for searched conducted for the 4 documents requested in my FOI request and that I was also liable to pay $30 for a decision on whether or not the Court would grant access to the documents that had been identified in the search.

On 14 August 2022, I called this weasel’s bluff: https://www.righttoknow.org.au/request/d....
I stated:

"Since:

a) there was no vacancy notification published in the Public Service Gazette for the SES Band 1 National Judicial Registrar role that Susan O'Connor was selected to fill and applied for; and
b) there is no certification that the Australian Public Service Commissioner's representative issued in the course of his or her participation in the selection process for the SES Band 1 National Judicial Registrar role that Susan O'Connor succeeded in securing; and
c) no records exist of a decision (by a selection panel or otherwise) to select Susan O'Connor to fill the SES Band 1 National Judicial Registrar role, which was made in the course a merit based selection process for the SES Band 1 National Judicial Registrar role that Susan O'Connor was selected to fill; and
d) no records exist of the reasons for decision (by a selection panel or otherwise) to select Susan O'Connor to fill the SES Band 1 National Judicial Registrar role, which was made in the course of a merit based selection process for the SES Band 1 National Judicial Registrar role that Susan O'Connor was selected to fill; and
e) I am quite confident that (a) – (d) are correct,

the 6.5 hour estimate and the associated charge are incorrect."

Well, would you believe it, B Henderson of the Federal Court of Australia writes to me on 13 September 2022 to tell me that the charges have been rescinded because … wait for it – the documents requested do not exist or cannot be found: https://www.righttoknow.org.au/request/d....

Let’s take stock of the nameless FOI Officer’s extensive “experience” and “expertise” in respect of the charges estimate decision thaw was made. The fact is that the documents requested do not exist. The fact is that, despite knowing that the documents do not exist, this weasel lied about the existence of the documents, had the nerve to insist that I pay the Court $35 for a decision and had the nerve to insist that I pay $20 before the Court would even progress consideration of the FOI request.

So that there is no misunderstanding, the extensively “experienced” and “expert” unnamed FOI Officer lied about the existence of documents, concocted a search fee for non-existent documents, concocted a 6.5 hour estimate for the consideration of an FOI request for non-existent documents, prepared a decision replete with lies and prepared an invoice for payment of a deposit, claiming that I had to pay it before the Court would progress consideration of my request for access to documents that do not exist. In case Ms Colbran needs it to be made explicit, there is no lack of understanding on my part about the skill, nuance, time and consideration involved in responding to FOI requests made to the Court. Mendacity, contrivance and the waste of Commonwealth resources are not objects of the FOI Act and the “skill”, “nuance” and “consideration” required to craft mendacious and contrived reasons for refusing access to non-existent documents are irrelevant to a proper understanding of how FOI requests should be handled by officers of the Court.

The fact that this nameless weasel poured hours of time into spinning lies has no bearing on a proper and lawful estimate of the time that should be taken to lawfully deal with an FOI request. Ms Colbran claims that the charges have been estimated by officers with etensive “experience” and “expertise” in the FOI jurisdiction. The evidence suggests that Ms Colbran’s claim in respect of the extensive “expertise” and “experience” of this one of the Court’s nameless and shameless officers has about as much worth as the contents of a port-a-loo.

Ms Colbran has the gumption to tell me that “the contest letter makes assertions that the charge has been used to unnecessarily delay access, or to discourage an applicant from exercising the right of access, conferred by the FOI Act”, “that no evidence has been provided to support these assertions” and that Ms Colbran is “satisfied that they are not substantiated.” Is that right? That satisfaction wouldn’t happen to be based on a position of wilful blindness adopted in respect of evidence that is available for the world to see on Right to Know would it? Why am I required to spoonfeed Ms Colbran with evidence? The evidence is there under her nose. Am I to understand that Ms Colbran is entirely unaware of what her colleagues are up to? That cannot be the case, because Ms Colbran has claimed that Court’s officers have extensive “experience” and “expertise” in the FOI jurisdiction. She must be aware of what her colleagues are up to. How could she make claims about their extensive “experience” and “expertise” if she didn’t know what they were doing with their time when accumulating extensive “experience” and “expertise”?

The examples provided are simply illustrative and not comprehensive. There are dozens more examples on the Right to Know website demonstrating the “skill”, “nuance” and “consideration” used by the Federal Court’s officers to craft mendacious and contrived reasons for refusing access to non-existent documents. Would Ms Colbran like a comprehensive list spoonfed to her?

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Tying in with Ray’s comments is Claire Hammerton Cole’s record of deception as an FOI decision maker. There are many examples of that deception on this website but a handful of examples should be enough to drive the point home and to incontrovertibly support the proposition that Claire Hammerton Cole has engaged in acts of deception while making decisions under the FOI Act. Of course, that record will be enough to cast doubt on any assessment made by Claire Hammerton Cole.

Example 1 – Claire Hammerton Cole lies about the existence of documents and claims that time for processing the FOI request must be extended to consult third parties

On 20 March 2022, Helen made the following FOI request to the Federal Court:

“Under the FOI Act, I request access to any and all documents (including but not limited to classification evaluation documents prepared for the “Legal 2” and “SES1” classification level registrar positions referred to in an Australian article published on 9 February 2022 titled Federal Court boss warned on job rule sidestep) that support acting assistant commissioner Kate McMullan’s conclusion that, in relation to the ‘National Judicial Registrar role’, ‘a role review process … had resulted in certain positions being found suitable for either a Legal 2 or (SES1) position, depending on the relative complexity and work load.’”

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

On 25 March 2022, Claire Hammerton Cole wrote to Helen stating:

“Your request seeks access to documents that contain personal information about individuals. It appears that the individuals concerned might reasonably wish to contend that the documents are conditionally exempt under section 47F of the FOI Act and access to the documents would, on balance, be contrary to the public interest under the FOI Act. In accordance with subsection 27A(3) of the FOI Act, the Federal Court of Australia (Court) must give those individuals a ‘reasonable opportunity to make submissions in support of the exemption contention’ before making a decision on the release of the documents that contain personal information about those individuals ...

For this reason, the Court has determined that the requirements of section 27A of the FOI Act make it appropriate to extend the period for processing your request by a further period of 30 days in accordance with subsection 15(6) of the FOI Act.”

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

On 19 May 2022, Claire Hammerton Cole writes to Helen stating that Helen’s request for access to the requested documents have been refused because it is contrary to the public interest to provide the requested documents.

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

On 20 May 2022, Helen seeks review of Claire Hammerton Cole’s FOI decision.

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

Helen’s reasons merit reproduction and are set out below.

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I am writing to request an internal review of Federal Court of Australia's handling of my FOI request 'Documents about “a role review process that had resulted in certain positions being found suitable for either a Legal 2 or (SES1) position, depending on the relative complexity and work load.”'.

In your reasons for decision you state:

You have requested access to certain documents "that support acting assistant commissioner Kate McMullan's conclusion regarding the Court's "role review process" in relation to the National Judicial Registrar role. As a matter of logic, documents that support Ms McMullan's conclusion regarding the Court's "role review process" regarding the National Judicial Registrar role, must be documents that were provided by the Court to Ms McMullan …

With respect, you are wrong. You have committed a logical fallacy.

The fact that Ms McMullan concluded that “a role review process … had resulted in certain positions being found suitable for either a Legal 2 or (SES1) position, depending on the relative complexity and work load" does not mean that, as a matter of logic, Ms McMullan's conclusion was based on documents, provided by the Court, that support that conclusion. A logical possibility is that Ms McMullan drew a conclusion on the basis of no probative evidence. It is logically possible for Ms McMullan to have made up the conclusion. Therefore, your statement is logically fallacious.

I made an identical FOI request to the APSC and, unfortunately for you Ms Hammerton Cole, the APSC identified the documents they claim that Ms McMullan relied on to conclude that “a role review process … had resulted in certain positions being found suitable for either a Legal 2 or (SES1) position, depending on the relative complexity and work load". Those documents are:

a) Email correspondence between Commission and Federal Court of Australia titled
“PRIVATE AND CONFIDENTIAL” dated 27 October 2020; and
b) Judicial Registrar Recruitment Outcome document prepared by Federal Court of
Australia.

You, like the APSC, have relied on ss 47C, 47E(c), 47E(d) and 47F of the FOI Act to deny access to the document. The problem with this is that a document that sets out a role review would not contain any personal information. As Mircea has noted:

More than anybody else in the country, the assistant commissioner for integrity, performance and employment policy would know that "role reviews" are reviews of roles. To put it in terms that you will understand, an assessment of a role is not an assessment of a person. It is an assessment of the groups of duties relative to the Commissioner's work level standards. It is impersonal. It has nothing to do with an individual or individuals. I don't need to quote chapter and verse from the Australian Public Service Classification Guide, which is available here:

https://www.apsc.gov.au/working-aps/aps-…

Going back to the documents, you claim that the document provided to Kate McMullan of the APSC that evidences that “a role review process that had resulted in certain positions being found suitable for either a Legal 2 or (SES1) position, depending on the relative complexity and work load" is exempt for having personal information. How could that be? A role review has nothing to do with individuals. Therefore I am immediately suspicious of your claims that this document is, in fact, the document that I requested, or if it is, that the conditional exemptions you have claimed do in fact apply.

A document that contains notes about applying Executive Level 2 (or Legal 2) classifications, under rule 6 of the Public Service Classification Rules 2000, to Mr Belcher and Mr Trott so that the scarce SES Band 1 classifications that they would have been assigned could be, to quote Justice Greenwood, "taken elsewhere in the organisation" is not a document that could, as a matter of logic (to use your words), ever support support acting assistant commissioner Kate McMullan’s conclusion that, in relation to the “National Judicial Registrar role”, “a role review process … had resulted in certain positions being found suitable for either a Legal 2 or (SES1) position, depending on the relative complexity and work load.” That is because a role review process has nothing to do with the allocation of classifications under rule 6 of the Public Service Classification Rules 2000. The classification of a role is handled under rule 9 of the Public Service Classification Rules 2000 and it is an entirely impersonal exercise. The role has nothing to do with a person. It follows that a document supporting the conclusion that “a role review process … had resulted in certain positions being found suitable for either a Legal 2 or (SES1) position, depending on the relative complexity and work load" could never have personal information on it and could, thus, never be the subject of a conditional exemption under section 47F of the FOI Act.

Do you see how your reasoning and logic fails you?

I'm willing to bet that the document you claim supports Ms McMullan's conclusion that, in relation to the “National Judicial Registrar role”, “a role review process … had resulted in certain positions being found suitable for either a Legal 2 or (SES1) position, depending on the relative complexity and work load" in, in fact, not such a document. I'm willing to bet, based on Justice Greenwood's public criticisms of Mr Soden and Ms Lagos, that it is a document on which notes have been recorded about how to deny Murray Belcher and Russell Trott the ascription of the classifications they were lawfully entitled to having succeeded in being selected for SES Band 1 roles on their merits, and how to move those scarce SES Band 1 classifications elsewhere in the organisation so that people who did not apply for the SES Band 1 National Judicial Registrar role, which you have refused to provide vacancy notifications and classification evaluations for, could be handed an SES Band 1 classification without actually being the subject of a merit based selection process. In other words, the document evidences cronyism and patronage, and the unlawful denial of promotion to the senior executive service for Mr Belcher and Mr Trott.

I relied on Mircea's and on Marcus' reasoning for internal review with the FOI request I made to the APSC. Aside from my own reason, I adopt their reasons for internal review.

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On 20 June 2022, Nicola Colbran, a National Judicial Registrar and District Registrar in the Federal Court, provides her internal review decision.

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

Nicola Colbran refuses access to the requested documents under s 24A of the FOI Act because the documents do not exist / cannot be found.

So not only did Claire Hammerton Cole lie about the existence of documents relevant to the FOI request, she also managed to eke out 30 extra days to process the FOI request by consulting people about documents that had no relevance to the FOI request.

Example 2 – Claire Hammerton Cole again lies about the existence of documents and claims that time for processing the FOI request must be extended to consult third parties

On 21 March 2022, Mircea made the following FOI request to the Federal Court:

“Please provide access to all the documents (including classification assessments, broadbanding proposals etc) that were provided to Kate McMullan of the Australian Public Service Commission which support her conclusion that allegations of impropriety and, presumably, unlawful conduct in the context of the recruitment of National Judicial Registrars were unsubstantiated because there had been ‘a role review process that had resulted in certain positions being found suitable for either a Legal 2 or (SES1) position, depending on the relative complexity and work load.’”

See: https://www.righttoknow.org.au/request/r....

On 25 March 2022, Claire Hammerton Cole wrote to Mircea stating:

“Your request seeks access to documents that contain personal information about individuals. It appears that the individuals concerned might reasonably wish to contend that the documents are conditionally exempt under section 47F of the FOI Act and access to the documents would, on balance, be contrary to the public interest under the FOI Act. In accordance with subsection 27A(3) of the FOI Act, the Federal Court of Australia (Court) must give those individuals a ‘reasonable opportunity to make submissions in support of the exemption contention’ before making a decision on the release of the documents that contain personal information about those individuals ...

For this reason, the Court has determined that the requirements of section 27A of the FOI Act make it appropriate to extend the period for processing your request by a further period of 30 days in accordance with subsection 15(6) of the FOI Act.”

See: https://www.righttoknow.org.au/request/r....

On 20 May 2022, Claire Hammerton Cole writes to Mircea stating that Mircea’s request for access to the requested documents have been refused because it is contrary to the public interest to provide the requested documents.

See: https://www.righttoknow.org.au/request/r....

On 21 May 2022, Mircea seeks review of Claire Hammerton Cole’s FOI decision.

See: https://www.righttoknow.org.au/request/r....

Mircea’s reasons merit reproduction and are set out below.

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Your decision does not make much sense.

Please pass this on to the person who conducts Freedom of Information reviews.

I am writing to request an internal review of Federal Court of Australia's handling of my FOI request 'Role review processes in the Federal Court for National Judicial Registrars'.

You will note that I asked the Federal Court, much as I did the APSC, for all documents (including classification assessments, broadbanding proposals etc) that were provided to Kate McMullan of the Australian Public Service Commission which support her conclusion that allegations of impropriety and, presumably, unlawful conduct in the context of the recruitment of National Judicial Registrars were unsubstantiated because there had been “a role review process that had resulted in certain positions being found suitable for either a Legal 2 or (SES1) position, depending on the relative complexity and work load.”

What does this mean? It means that the documents I am asking for are:

1. documents that were provided to Kate McMullan; and
2. are evidence that “a role review process that had resulted in certain positions being found suitable for either a Legal 2 or (SES1) position, depending on the relative complexity and work load.”

First, in your decision you claim that the documents are exempt for, among other things, having personal information.

That immediately raises red flags.

You should know that "role reviews" are reviews of roles. To put it in terms that you will understand, an assessment of a role is not an assessment of a person. It is an assessment of the groups of duties relative to the Commissioner's work level standards. It is impersonal. It has nothing to do with an individual or individuals.

If you have a casual glance at the APS Classification Guide, you will notice the following is noted about distinctions between the job and the individual performing the job (page 9)

When making a classification decision, it is vital that the work value of a job is considered and not the capabilities or characteristics of the employee who will perform the role ... Classification is based on an appropriate work value assessment of the role and not on the remuneration arrangements that may be needed to attract and/or retain appropriately skilled or qualified people.

If you have a casual glance at the APS Classification Guide, you will notice the following is noted about reclassifying a role (page 10):

The classification of the job should be reviewed when a significant change in work value occurs.

This includes changes in the nature and scope of the work to be performed such that the level of
complexity changes or the responsibility and authority of the job alters.

It is important to note that when assessing any differences in the duties not all changes necessarily
equate to a need for a change in work value. Any reclassification needs to be based on an evaluation of work value using the work level standards as a guide.

Where a decision is made to reclassify a job, this does not mean the classification of the employee
performing the duties is also automatically reclassified. Employees are allocated a classification in a separate decision under the Classification Rules (rule 6(1)).

Going back to the documents, you claim that the document provided to Kate McMullan of the APSC that evidences that “a role review process that had resulted in certain positions being found suitable for either a Legal 2 or (SES1) position, depending on the relative complexity and work load" is exempt for having personal information. How could that be? A role review has nothing to do with individuals. Therefore I am immediately suspicious of your claims that this document is, in fact, the document that I requested, or if it is, that the conditional exemptions you have claimed do in fact apply.

Second, you claim that the documents "record the process by which the PID investigation was undertaken and disclose material prepared or recorded as part of that deliberative PID process ..." How could role review documents have anything to do with the process by which a PID investigation was undertaken and disclose material prepared or recorded as part of that deliberative PID process? That is nonsense.

You should know that I made an identical request to the APSC and the APSC has identified the documents in issue and they are not documents that have anything to do with the process by which a PID investigation was undertaken and disclose material prepared or recorded as part of that deliberative PID process. The documents are:

a) Email correspondence between Commission and Federal Court of Australia titled
“PRIVATE AND CONFIDENTIAL” dated 27 October 2020; and
b) Judicial Registrar Recruitment Outcome document prepared by Federal Court of
Australia.

As you can see, the APSC claims that the relevant documents is a recruitment outcome document. Another red flag. How can the outcome of a recruitment process determine the scope of a role, and the groups of duties to be performed in that role, by reference to the Commissioner's work level standards? The role assessment, whether it is a review or whether it is an assessment for a new role necessarily precedes any recruitment process and certainly the outcome of that process.

Again, this document cannot be what I asked for.

Moreover, you claim that parts of the document are exempt on the ground of irrelevance. What could be irrelevant in a document that is a record of the reassessment of the scope of a role (i.e. the groups of duties to be performed) by reference to the Commissioner's work level standards?

Do you understand why your decision letter makes no sense?

Having read some of the responses that you have provided, I have had cause to question whether you know what you are doing. This decision has only cemented my concerns about your ability to make lawful decisions under the FOI Act.

I invite the person who will be conducting the internal review to make a lawful decision and one that can withstand scrutiny on its face (i.e. I've not even seen these documents and based on the description of the documents have been able to determine that what you have recorded in your decision is nonsense).

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On 20 June 2022, Nicola Colbran, a National Judicial Registrar and District Registrar in the Federal Court, provides her internal review decision.

See: https://www.righttoknow.org.au/request/r....

Nicola Colbran refuses access to the requested documents under s 24A of the FOI Act because the documents do not exist / cannot be found.

So not only did Claire Hammerton Cole lie about the existence of documents relevant to the FOI request, she also managed to eke out 30 extra days to process the FOI request by consulting people about documents that had no relevance to the FOI request.

Example 3 – Claire Hammerton Cole lies a third time about the existence of documents

On 1 May 2022, Aiofe made the following FOI request to the Federal Court of Australia:

“Under the FOI Act I request access to the following documents:

1. Vacancy notifications published in the Public Service Gazette or elsewhere

a) the vacancy notification for the National Judicial Registrar role that Phillip Allaway applied for and was selected to fill;
b) the vacancy notification for the National Judicial Registrar role that Matthew Benter applied for and was selected to fill;
c) the vacancy notification for the National Judicial Registrar role that Rupert Burns applied for and was selected to fill;
d) the vacancy notification for the National Judicial Registrar role that Claire Gitsham applied for and was selected to fill;
e) the vacancy notification for the National Judicial Registrar role that Susan O'Connor applied for and was selected to fill;
f) the vacancy notification for the National Judicial Registrar role that David Ryan applied for and was selected to fill;
g) the vacancy notification for the National Judicial Registrar role that Tuan Van Le applied for and was selected to fill.

2. Classification evaluations for the National Judicial Registrar roles

a) the classification evaluation for the National Judicial Registrar role that Phillip Allaway applied for and was selected to fill;
b) the classification evaluation for the National Judicial Registrar role that Matthew Benter applied for and was selected to fill;
c) the classification evaluation for the National Judicial Registrar role that Rupert Burns applied for and was selected to fill;
d) the classification evaluation for the National Judicial Registrar role that Claire Gitsham applied for and was selected to fill;
e) the classification evaluation for the National Judicial Registrar role that Susan O'Connor applied for and was selected to fill;
f) the classification evaluation for the National Judicial Registrar role that David Ryan applied for and was selected to fill;
g) the classification evaluation for the National Judicial Registrar role that Tuan Van Le applied for and was selected to fill.

3. Job applications submitted for the National Judicial Registrar roles

a) the job application submitted for the National Judicial Registrar role that Phillip Allaway was selected to fill;
b) the job application submitted for the National Judicial Registrar role that Matthew Benter was selected to fill;
c) the job application submitted for the National Judicial Registrar role that Rupert Burns was selected to fill;
d) the job application submitted for the National Judicial Registrar role that Claire Gitsham was selected to fill;
e) the job application submitted for the National Judicial Registrar role that Susan O'Connor was selected to fill;
f) the job application submitted for the National Judicial Registrar role that David Ryan was selected to fill;
g) the job application submitted for the National Judicial Registrar role that Tuan Van Le was selected to fill.

In relation to the job applications, I invite you redact the email addresses, telephone numbers, dates of birth, residential and postal addresses and any signatures contained in the job applications.

Do not redact answers to questions posed as part of the applications process, details of the National Judicial Registrars' professional experience, accreditation, education, dates and timestamps recorded of the job applications and other substantive matter.

4. Selection reports of the selection committees that selected the successful applicants

a) the selection committee's selection report in relation to the National Judicial Registrar role that Phillip Allaway applied for and was selected to fill;
b) the selection committee's selection report in relation to the National Judicial Registrar role that Matthew Benter applied for and was selected to fill;
c) the selection committee's selection report in relation to the National Judicial Registrar role that Rupert Burns applied for and was selected to fill;
d) the selection committee's selection report in relation to the National Judicial Registrar role that Claire Gitsham applied for and was selected to fill;
e) the selection committee's selection report in relation to the National Judicial Registrar role that Susan O'Connor applied for and was selected to fill;
f) the selection committee's selection report in relation to the National Judicial Registrar role that David Ryan applied for and was selected to fill;
g) the selection committee's selection report in relation to the National Judicial Registrar role that Tuan Van Le applied for and was selected to fill.

In relation to the selection reports, you are invited to redact:

a) the names of unsuccessful candidates;
b) deliberative content about the unsuccessful candidates and their applications;
c) deliberative content about the successful candidates and their applications.

Please do not redact:

a) the classifications of the roles the successful candidates were selected to fill;
b) the names and titles of the members of the selection committees;
c) date information on the selection reports;
d) the names of the successful applicants on the selection reports (i.e. Phillip Allaway, Matthew Benter, Rupert Burns, Claire Gitsham, Susan O'Connor, David Ryan and Tuan Van Le);
e) to the extent that the selection committees were constituted by Sia Lagos or David Pringle, the signatures that Sia Lagos and David Pringle applied to the selection reports.

5. Australian Public Service Commissioner's representative's certification

a) the Australian Public Service Commissioner's representative's certification in relation to the SES Band 1 National Judicial Registrar selection process that saw Ms Susan O'Connor selected as an ongoing, full-time SES Band 1 National Judicial Registrar on 19 November 2018 (as to which, please refer to ‘category D’ of the document associated with request to of PA2925-06/9 on the disclosure log of the Federal Court: see https://fedcourt.gov.au/disclosurelog).”

See: https://www.righttoknow.org.au/request/m....

On 11 May 2022, an unnamed FOI officer in the Federal Court wrote to Aiofe and stated:

“Your request seeks access to documents that contain personal information about individuals. It appears that the individuals concerned might reasonably wish to contend that the documents are conditionally exempt under section 47F of the FOI Act and access to the documents would, on balance, be contrary to the public interest under the FOI Act. In accordance with subsection 27A(3) of the FOI Act, the Federal Court of Australia (Court) must give those individuals a ‘reasonable opportunity to make submissions in support of the exemption contention’ before making a decision on the release of the documents that contain personal information about those individuals ...

For this reason, the Court has determined that the requirements of section 27A of the FOI Act make it appropriate to extend the period for processing your request by a further period of 30 days in accordance with subsection 15(6) of the FOI Act.”

See: https://www.righttoknow.org.au/request/m....

On 30 June 2022, Claire Hammerton Cole provides Aiofe with her FOI decision. In that decision she refuses to grant access to the requested job applications and the requested selection reports on the basis that it is contrary to the public interest for those documents to be made available to the public. Claire Hammerton Cole passed off four gazette notices as relevant vacancy notifications that each of the National Judicial Registrar vacancies that Phillip Allway, Matthew Benter, Rupert Burns, Claire Gitsham, Susan O’Connor, David Ryan and Tuan Van Le had applied to fill. Claire Hammerton Cole also passed off the certification for a Senior Executive Band 2 classified Senior National Judicial Registrar vacancy as the certification for the Senior Executive Band 1 National Judicial Registrar vacancy that Susan O’Connor had been selected to fill.

See: https://www.righttoknow.org.au/request/m....

On 29 July 2022, Aiofe sought internal review of Claire Hammerton Cole’s Foi decision. Aiofe made short work of Claire Hammerton Cole’s reasons for decision, pointing out all of the inconsistencies, fallacies and falsehoods in Claire Hammerton Cole’s reasons.

See: https://www.righttoknow.org.au/request/m....

On 29 August 2022, Nicola Colbran, a National Judicial Registrar & District Registrar of the Federal Court, provided her internal review decision to Aiofe.

See: https://www.righttoknow.org.au/request/m....

It is a remarkable decision and merits reproduction. It is, in part, set out below.

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Dear Aiofe

Request for an internal review under the Freedom of Information Act

I refer to your email correspondence of 29 July 2022 (6:40PM) seeking an internal review of the decision made on 30 June 2022.

Authorised decision-maker

I am authorised to make a decision on behalf of the Federal Court of Australia (Court) in relation to your internal review request. In conducting the internal review, I acknowledge that an internal review is a merit review process and that I am required to bring a fresh, independent and impartial mind to the review ...

Decision on Internal Review

Documents in item (1) of the FOI request

The decision dated 30 June 2022 identified four documents within the scope of your request. However, I am of the view that the documents identified are not within scope as they do not relate to both the role the person applied for and that they were selected to fill. I am satisfied that all reasonable steps have been taken to find the documents you have requested, but the documents cannot be found or do not exist (see s 24A(1) of the FOI Act). I therefore refuse your access request.

Documents in item (2) of the FOI request

The decision dated 30 June 2022 stated that no documents were found. I am satisfied that this is correct. I therefore refuse your request to access the documents as I am satisfied that all reasonable steps have been taken to find the documents you have requested, but the documents cannot be found or do not exist (see s 24A(1) of the FOI Act).

Documents in item (3) of the FOI request

The decision dated 30 June 2022 identified five documents within the scope of your request. However, I am of the view that the documents identified are not within scope as they do not relate to both the role the person applied for and that they were selected to fill. I am satisfied that all reasonable steps have been taken to find the documents you have requested, but the documents cannot be found or do not exist (see s 24A(1) of the FOI Act). I therefore refuse your access request.

Documents in item (4) of the FOI request

The decision dated 30 June 2022 identified four documents within the scope of your request. However, I am of the view that the documents identified are not within scope as they do not relate to both the role the person applied for and that they were selected to fill. I am satisfied that all reasonable steps have been taken to find the documents you have requested, but the documents cannot be found or do not exist (see s 24A(1) of the FOI Act). I therefore refuse your access request.

Documents in item (5) of the FOI request

The decision dated 30 June 2022 identified one document within the scope of your request. However, I am of the view that the document identified is not within scope as they do not relate to both the role the person applied for and that they were selected to fill. I am satisfied that all reasonable steps have been taken to find the documents you have requested, but the documents cannot be found or do not exist (see s 24A(1) of the FOI Act). I therefore refuse your access request.

Searches Undertaken

Prior to the decision dated 30 June 2022, extensive searches were undertaken by staff of the Court to identify any documents falling within the scope of your request. I have reviewed these searches and spoken to Court personnel who were involved in this process. The process for undertaking the searches involved consultations with senior staff of the Court, searches of the Court’s human resources and recruitment inboxes, searches of staff emails, as well as searches of the Court’s human resources shared drive, the Court’s electronic documents, records management and information systems. The searches utilised key words based on Court staff’s knowledge of document titling practices in the Court. Staff engaged in extensive consultations to determine appropriate key word searches by reference to the description of the documents in your FOI request.

I am satisfied that the searches undertaken were thorough and comprehensive. I do not believe any further reasonable search or enquiry would find additional documents within the scope of your request. I am satisfied that, other than the documents already found, no other documents exist or they cannot be found ...

Yours sincerely

Nicola Colbran

National Judicial Registrar & District Registrar

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Nicola Colbran refuses access to every single one of the requested documents under s 24A of the FOI Act because the documents do not exist / cannot be found.

So:

a) Claire Hammerton Cole lied about the existence of relevant vacancy notification documents and knowingly passed off irrelevant vacancy notification documents in response to the FOI request;

b) Claire Hammerton Cole lied about the existence of job applications submitted by each of Phillip Allway, Matthew Benter, Rupert Burns, Claire Gitsham, Susan O’Connor, David Ryan and Tuan Van Le to fill National Judicial Registrar vacancies in the Federal Court;

c) Claire Hammerton Cole lied about the existence of selection reports prepared by selection committees that selected each of Phillip Allway, Matthew Benter, Rupert Burns, Claire Gitsham, Susan O’Connor, David Ryan and Tuan Van Le to fill National Judicial Registrar vacancies in the Federal Court; and

d) Claire Hammerton Cole lied about the existence of a certification that was issued for the selection process relating to the Senior Executive Band 1 classified National Judicial Registrar vacancy that Susan O’Connor was selected to fill and knowingly passed off an irrelevant certification for an SES Band 2 Senior National Judicial Registrar selection process.

On top of that, Claire Hammerton Cole managed to eke out 30 extra days to process the FOI request by consulting people about documents that had no relevance to the FOI request based on the lies of a nameless FOI Officer.

Example 4 – Claire Hammerton Cole falsely claims that incontrovertible evidence of a nameless FOI Officer’s deception is “baseless”

On Ray sent the following FOI request to the Federal Court of Australia:

“Under the FOI Act I request access to:

a) the vacancy notification published in the Public Service Gazette for the SES Band 1 National Judicial Registrar role that Susan O'Connor was selected to fill and applied for;

b) the certification that the Australian Public Service Commissioner's representative issued in the course of his or her participation in the selection process for the SES Band 1 National Judicial Registrar role that Susan O'Connor succeeded in securing;

c) the record of decision (by a selection panel or otherwise) to select Susan O'Connor to fill the SES Band 1 National Judicial Registrar role, which was made in the course a merit based selection process for the SES Band 1 National Judicial Registrar role that Susan O'Connor was selected to fill; and

d) the record of the reasons for decision (by a selection panel or otherwise) to select Susan O'Connor to fill the SES Band 1 National Judicial Registrar role, which was made in the course of a merit based selection process for the SES Band 1 National Judicial Registrar role that Susan O'Connor was selected to fill.”

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

On 8 August 2022, an FOI officer in the Federal Court sent a charge estimate letter to Ray requiring payment of $35 to process the FOI request and stating:

“In accordance with the FOI Act and Charges Regulations, the Court requires you to pay a deposit before any further work on your FOI request is undertaken. As outlined in the table above, the deposit payable for your FOI request is $20.00. This accords with s 12(2) of the Charges Regulations which requires that a deposit must not exceed $20.00 when the preliminary assessment of the charge is more than $25.00 but less than $100.00.

An invoice for the deposit is enclosed with this letter and includes details as to how payment can be made. As noted above, the Court will not undertake any further work on your FOI request until the deposit is paid. Once the deposit is paid, work on your FOI request will recommence and the statutory processing period will re-continue from the date of payment.

Please note that the deposit is not refundable, unless you contest the charge and the Court decides not to impose any charge in relation to your FOI request OR the Court fails to make a decision on your FOI request within the applicable statutory processing period.”

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

On 14 August 2022, Ray sent a magnificent response to the FOI Officer who insisted that payment would have to be made to the Federal Court before the Court gave further consideration the FOI request.

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

Ray’s response merits reproduction and is set out below.

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I am contesting the proposed charges you have listed in your letter.

You claim that search and retrieval of the documents took, or will take, 20 minutes. I do not think that to be the case. I have been very specific with my request and all of the documents requested (in total, four documents) would reasonably be expected to be located in single location – Susan O’Connor’s APS employee file. That expectation is based on the core activities associated with personnel management, which includes ‘managing recruitment of personnel to the Australian Public Service (APS), including ongoing, non-ongoing and SES employees, and employment scheme participants such as those working under scholarships, fellowships, traineeships, apprenticeships and similar relationships. Includes applying for approval to fill vacancies, advertising vacant positions, and the handling of applications, interviews, selection and appointment’. Such documents would reasonably be expected to be kept in an APS employee file or something similar. It should not take 20 minutes to find documents that are plainly similar in their nature (i.e. four documents pertaining to the merit based recruitment of Susan O’Connor into an SES Band 1 National Judicial Registrar vacancy). I think six minutes would be more than adequate time. The cost of searching should be about $1.50.

According to the FOI Guidelines:

An agency should ensure that the notice to an applicant of a charge fully explains and justifies the charge. Implicit in the ‘lowest reasonable cost’ objective is the requirement for sound record keeping so that an agency’s documents can be readily identified and found when an FOI request is received.

According to the FOI Guidelines:

Agencies and ministers should interpret the ‘lowest reasonable cost’ objective broadly in imposing any charge under the FOI Act. That is, an agency or minister should have regard to the lowest reasonable cost to the applicant, to the agency or minister, and the Commonwealth as a whole. Where the cost of calculating and collecting a charge might exceed the cost to the agency of processing the request, it may generally be more appropriate not to impose a charge.

Let it be conservatively assumed that the FOI Officer who prepared the charge estimate letter and the invoice is paid $40 per hour (including superannuation and leave entitlements). Let it be very generously assumed that it took the FOI Officer 10 minutes to:

a) calculate the charges to be requested;
b) prepare the charge estimate letter;
c) the invoice of deposit; and
d) dispatch the documents by email.

It would have cost the Commonwealth $6.67 for the FOI Officer to do that.

The cost of calculating and collecting the charge appears to exceed the cost to the agency of searching for the documents, even if the 20 minute estimate were to hold true (which I do not think could objectively be said to be the case).

Accordingly, the proposed search charge is inappropriate.

I requested the following documents:

a) the vacancy notification published in the Public Service Gazette for the SES Band 1 National Judicial Registrar role that Susan O'Connor was selected to fill and applied for;
b) the certification that the Australian Public Service Commissioner's representative issued in the course of his or her participation in the selection process for the SES Band 1 National Judicial Registrar role that Susan O'Connor succeeded in securing;
c) the record of decision (by a selection panel or otherwise) to select Susan O'Connor to fill the SES Band 1 National Judicial Registrar role, which was made in the course a merit based selection process for the SES Band 1 National Judicial Registrar role that Susan O'Connor was selected to fill; and
d) the record of the reasons for decision (by a selection panel or otherwise) to select Susan O'Connor to fill the SES Band 1 National Judicial Registrar role, which was made in the course of a merit based selection process for the SES Band 1 National Judicial Registrar role that Susan O'Connor was selected to fill.

You know as well as I that no vacancy notification was published in the Public Service Gazette for the SES Band 1 National Judicial Registrar role that Susan O'Connor was selected to fill and, accordingly, Susan O’Connor could not have applied for the SES Band 1 National Judicial Registrar role that Susan O'Connor was selected to fill.

It has already been established, by National Judicial Registrar and District Registrar Colbran, that the Federal Court does not have the certification that the Australian Public Service Commissioner's representative issued in the course of his or her participation in the selection process for the SES Band 1 National Judicial Registrar role that Susan O'Connor succeeded in securing (see https://www.righttoknow.org.au/request/c...).

Having seen an external disclosure made under the Public Interest Disclosure Act 2013, which included Kate McMullan’s report issued under the Public Interest Disclosure Act 2013, it is quite clear to me that there are:

a) no records of decision (by a selection panel or otherwise) to select Susan O'Connor to fill the SES Band 1 National Judicial Registrar role, which was made in the course a merit based selection process for the SES Band 1 National Judicial Registrar role that Susan O'Connor was selected to fill; and
b) no records of the reasons for decision (by a selection panel or otherwise) to select Susan O'Connor to fill the SES Band 1 National Judicial Registrar role, which was made in the course of a merit based selection process for the SES Band 1 National Judicial Registrar role that Susan O'Connor was selected to fill.

You must be having a laugh if you think that it will take 6.5 hours to prepare a decision in respect of documents that do not objectively fall within the terms of my FOI request.

I am confident that the estimate of 6.5 hours is simply incorrect because whatever documents you claim to be looking at do not objectively fall within the scope of the documents I have requested under the FOI Act. Of course, you can contend that I am wrong all you like. I will simply seek IC review of any decision to insist on payment and, naturally, as part of that review, the OAIC will request copies of the documents you claim are the documents that I requested, only to tell you that whatever documents you provide do not fall within the scope of my request and that, consequently, the decision to charge is without basis. As you know, the Federal Court will have the onus of establishing that the proposed charges should apply. Good luck insisting on charges for documents that do not objectively fall within the scope of my FOI request.

Since:

a) there was no vacancy notification published in the Public Service Gazette for the SES Band 1 National Judicial Registrar role that Susan O'Connor was selected to fill and applied for; and
b) there is no certification that the Australian Public Service Commissioner's representative issued in the course of his or her participation in the selection process for the SES Band 1 National Judicial Registrar role that Susan O'Connor succeeded in securing; and
c) no records exist of a decision (by a selection panel or otherwise) to select Susan O'Connor to fill the SES Band 1 National Judicial Registrar role, which was made in the course a merit based selection process for the SES Band 1 National Judicial Registrar role that Susan O'Connor was selected to fill; and
d) no records exist of the reasons for decision (by a selection panel or otherwise) to select Susan O'Connor to fill the SES Band 1 National Judicial Registrar role, which was made in the course of a merit based selection process for the SES Band 1 National Judicial Registrar role that Susan O'Connor was selected to fill; and
e) I am quite confident that (a) – (d) are correct,

the 6.5 hour estimate and the associated charge are incorrect.

I do not intend to pay a cent to access documents that do not fall within the scope of my FOI request.

If I am wrong, the OAIC (assuming it deals with any IC review lawfully) will uphold the decision maker’s decision and I will have egg on my face.

But I doubt I will have any egg on my face.”

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In my internal review request for the charge estimate decision that B Henderson had rendered, I stated:

“In the past, staff members of the Federal Court have misled access applicants about the existence of documents and have insisted on the payment of deposits under the Freedom of Information (Charges) Regulations 2019 (Cth). The access applicant challenged the claim about the very existence of the documents and you conceded the fact that the documents do not exist despite the fact that the an FOI Officer in the Federal Court had demanded payment before the FOI request would be processed (https://www.righttoknow.org.au/request/d...). You were unable to force the access applicant to pay the amount requested. How do I know that I am not being lied to, just like Ray B1 was lied to? FOI decision makers in the Federal Court have, in the past, insisted that documents existed only for people like Ray B1 to demonstrate that those decision makers have been lying about the existence of documents.”

Claire Hammerton Cole’s response to my statement is as follows:

“Your internal review request also contains several allegations regarding decision-makers of the Court “lying about the existence of documents”. Such allegations are baseless and inappropriate and I will not make any further comment about them in this decision.”

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

Obviously Claire Hammerton Cole’s claim that “[s]uch allegations are baseless” is a lie because there is incontrovertible evidence that Ray was lied to by a nameless FOI officer in the Federal Court about the need to make payments. Moreover, based on the examples that I have set out, there is incontrovertible evidence on the Right to Know website that Claire Hammerton Cole has lied about the existence of documents.

Claire Hammerton Cole can make false claims like the one she has until she turns blue in the face. She can use as many tactics from the Donald Trump playbook as she likes. The evidence will not change and it remains on this website for any rational person to consider on its merits. And that really goes to the heart of why Claire Hammerton Cole’s decision should be subjected to IC review.

There is incontrovertible evidence on this website that proves Claire Hammerton Cole has a tortured relationship with the truth. Basically, Claire Hammerton Cole has a habit of deceiving access applicants and her word cannot be trusted. That reason alone suffices for her internal review decision to be subjected to IC review.

Federal Court of Australia

 
 
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Federal Court of Australia

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Our reference: MR22/01645

 

By email: [FOI #9082 email]

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review).

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