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

The request was partially successful.

Dear Australian Public Service Commission,

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) and the SES Band 1 Chief Information and Digital Officer role that Paul Kennedy was promoted to (www.apsjobs.gov.au/s/outcome-details?Id=a062P000000YYZ9QAO), I have not been able to find a vacancy notification for an SES Band 1 "National Judicial Registrar" vacancy or a vacancy notification for an SES Band 1 “District Registrar” vacancy that fits the bill. Nor have I found a promotion notice for a person who was promoted to the SES Band 1 "National Judicial Registrar" vacancy or a promotion notice for a person who was promoted to the SES Band 1 “District Registrar” vacancy.

According to an FOI decision made by Giorgina Strangio in the Australian Public Service Commission, "prior to 1 February 2019, certificates issued pursuant to paragraph 21(b) of the Australian Public Service Commissioner’s Directions 2016 were generally maintained by the recruiting entity and not provided to the Commission": see https://www.righttoknow.org.au/request/c...

Presumably, certificates issued after 1 February 2019 are generally maintained by the APSC and the timing of the SES recruitment process for the SES Band 1 National Judicial Registrar role postdates 1 February 2019.

According to an FOI decision made by Charmaine Sims in the Australian Public Service Commission, the records of the APSC do not indicate that there was a vacancy for an SES Band 1 National Judicial Registrar role between 12 June 2020 and 22 June 2022.

Something appears to be amiss. I would like to better understand what is going on in the Federal Court, particularly in respect of Senior Executive Service Band 1 recruitment decisions. The APSC is an agency that might be able to assist in shedding light on the matter.

Except for any documents relating to the promotions of Scott Tredwell and Paul Kennedy to the SES Band 1 General Counsel and the SES Band 1 Chief Information and Digital Officer vacancies, under the FOI Act I request:

a) any and all correspondence, having been sent or received between 12 June 2020 and 15 September 2022 and that are in the possession of the APSC, between staff in the Federal Court and the Australian Public Service Commission in relation to selection processes for any and all Senior Executive Service Band 1 vacancies in the Federal Court of Australia; and

b) any and all certifications in the possession of the APSC and issued between 12 June 2020 and 15 September 2022 under either s 21 of the Australian Public Service Commissioner’s Directions 2016 or s 26 the Australian Public Service Commissioner’s Directions 2022 by the Australian Public Service Commissioner’s representatives who participated in selection processes for any and all Senior Executive Service Band 1 vacancies in the Federal Court of Australia.

You are welcome to redact the Australian Public Service Commissioner’s representatives’ signatures from the certificates.

Documents can be sent to me by return email.

Yours faithfully,

Stephanie

FOI, Australian Public Service Commission

OFFICIAL
Dear Stephanie

I am writing to acknowledge receipt of your request under the Freedom of Information Act 1982 for access to documents held by the Commission.

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

Kind Regards

FOI OFFICER
Legal Services

Australian Public Service Commission
Level 4, B Block, Treasury Building, Parkes Place West, PARKES ACT 2600
GPO Box 3176 CANBERRA ACT 2601

t: 02 6202 3720  w: www.apsc.gov.au        
                           
This email and any attachments may contain confidential or legally privileged information, and neither are waived or lost if the email has been sent in error. If you have received this email in error, please delete it (including any copies) and notify the sender. Please consult with APSC Legal Services before using disclosing any part of this email or attachments to a third party.

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FOI, Australian Public Service Commission

OFFICIAL: Sensitive
Our ref: LEX 322
 
Dear Stephanie

I refer to your request dated 16 September 2022 for access to documents relating to the promotion of a "National Judicial Registrar" to the SES Band 1 classification after 12 June 2020 under the Freedom of Information Act 1982 (Cth) (FOI Act). As you may be aware, the timeframe for responding your request is due on 16 October 2022.

Request for extension of time to process your request
 
The Commission has undertaken extensive searches and has since identified correspondence that requires consultation with the Federal Circuit and Family Court of Australia (FCFCOA).

In order for the Commission to complete all reasonable steps in relation to your request, we require more time to consult and allow the FCFCOA to consider the documents and advise of any relevant sensitivities. To this end, the Commission seeks your consent pursuant to s 15AA of the FOI Act for an extension of time to 31 October 2022.

Please respond to this request by COB 11 October 2022 to enable the Commission to notify the Office of the Australian Information Commissioner of the extension by consent if you agree to the extension.

Kind Regards

FOI OFFICER
Legal Services

Australian Public Service Commission
Level 4, B Block, Treasury Building, Parkes Place West, PARKES ACT 2600
GPO Box 3176 CANBERRA ACT 2601

t: 02 6202 3720  w: www.apsc.gov.au        
                           

This email and any attachments may contain confidential or legally privileged information, and neither are waived or lost if the email has been sent in error. If you have received this email in error, please delete it (including any copies) and notify the sender. Please consult with APSC Legal Services before using disclosing any part of this email or attachments to a third party.

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Dear FOI Officer,

LEX 322

Thank you for your email. In your email you say:

"The Commission has undertaken extensive searches and has since identified correspondence that requires consultation with the Federal Circuit and Family Court of Australia (FCFCOA)."

You have not explained on what basis there is a requirement to consult with the FCFCOA. Would you please tell me what the legal basis is for your requirement to consult with the FCFCOA so that I can make an informed decision?

Would you also indicate why your correspondence has been marked "OFFICIAL: Sensitive"? I don't think you should be posting "OFFICIAL: Sensitive" correspondence on a public forum if the correspondence is genuinely of such a nature (I doubt it is).

Yours sincerely,

Stephanie

FOI, Australian Public Service Commission

OFFICIAL
Our ref: LEX 322

Dear Stephanie

The Commission has already contacted the FCFCOA for the purpose of consultation and sought an extension of time from you to give the FCFCOA sufficient time to consider the matter.

Paragraph 3.70 of the FOI guidelines provides that it is good practice to consult with other relevant agencies before making a decision about release of a document.

We acknowledge that the email was classified 'sensitive' in error.

Please advise by COB 13 October 2022 whether you agree to an extension to 31 October 2022.

Kind Regards

FOI OFFICER
Legal Services

Australian Public Service Commission
Level 4, B Block, Treasury Building, Parkes Place West, PARKES ACT 2600
GPO Box 3176 CANBERRA ACT 2601

t: 02 6202 3720  w: www.apsc.gov.au        
                           

This email and any attachments may contain confidential or legally privileged information, and neither are waived or lost if the email has been sent in error. If you have received this email in error, please delete it (including any copies) and notify the sender. Please consult with APSC Legal Services before using disclosing any part of this email or attachments to a third party.

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Dear FOI Officer,

LEX 322

Thank you for your email.

I acknowledge that paragraph 3.70 of the FOI Guidelines provides that “before making a decision about release of a document it is good practice to consult with other agencies, even when the FOI Act does not require consultation …”

I take it that you accept that the APSC is not “required” to consult with the FCFCOA, even though you claimed that the APSC had “undertaken extensive searches and has since identified correspondence that requires consultation with the Federal Circuit and Family Court of Australia” in your email of 10 October 2022.

Since you have not identified a legal basis for the requirement to consult, I am not inclined to agree to the requested extension of time until 31 October 2022, but I will agree to an extension of time until 19 October 2022 to give you some latitude. If you want a further extension of time, you are at liberty to write to the OAIC and to set out your reasons for your request for an extension of time.

Yours sincerely,

Stephanie

FOI, Australian Public Service Commission

6 Attachments

OFFICIAL

Dear Applicant

 

A decision notice is attached.

 

Regards

 

FOI OFFICER

Legal Services

 

Australian Public Service Commission

Level 4, B Block, Treasury Building, Parkes Place West, PARKES ACT 2600
GPO Box 3176 CANBERRA ACT 2601

 

t: 02 6202 3720  w: [1]www.apsc.gov.au        

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References

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Dear Charmaine Sims,

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

I am writing to request an internal review of Australian Public Service Commission's handling of my FOI request 'Documents relating to the promotion of a "National Judicial Registrar" to the SES Band 1 classification after 12 June 2020'. I contest your claim that s 47E(c) applies to the documents. I would also like a review of the s 47F conditional exemption that you have claimed.

In her reasons for decision, Ms Sims has stated at [3]:

Subsection 47E(c) of the FOI Act provides that a document is conditionally exempt from disclosure if its disclosure would, or could be reasonably expected to, have a substantial adverse effect on the management or assessment of personnel by an agency.

At [5] - [7], Ms Sims has stated:

The documents relate to a recruitment process undertaken by the Federal Circuit and Family Court of Australia (FCFCOA), with the support of the Commission. The documents directly concern the management and assessment of personnel and therefore relate to subsection 47E(c) of the FOI Act.

The release of information relating to the FCFCOA’s recruitment processes would, or could, reasonably be expected to have a substantial adverse effect on the management of personnel by undermining trust in the confidentiality and integrity of the recruitment process of the FCFCOA. This could make it more difficult to attract high quality candidates for future recruitment processes.

For the reasons above, I consider the documents are conditionally exempt from disclosure under subsection 47E(c) of the FOI Act.

These reasons are hardly adequate to sustain a conditional exemption under s 47E(c) of the FOI Act.

The Federal Circuit and Family Court of Australia has a poor track record when it comes to “integrity” in their recruitment processes. For example, the Federal Circuit and Family Court of Australia broadbanded a Senior Judicial Registrar vacancy across the EL2, SES1 and SES2 classification bands (see vacancy VN-0703389 published on pages 420 - 422 in Public Service Gazette PS 14 Weekly Gazette - Thursday, 7 April 2022, which can be accessed here: https://www.apsjobs.gov.au/s/all-gazette...), even though it is explicitly against the law to do so: see Public Service Classification Rules 2000 (Cth), rule 9(5). When requested to provide:

a) classification evaluations for the EL2, SES1 and SES2 Senior Judicial Registrar role;
b) any and all documents relating to the broadbanding of the Senior Judicial Registrar role across the Executive Level 2, Senior Executive Band 1 and Senior Executive Band 2 classification bands,

the Federal Circuit and Family Court refused to provide the documents on the grounds that the documents do not exist / cannot be located, even though the Australian Public Service Classification Guide provides that classification evaluation documentation must be kept to ensure the integrity of the classification system.

As to the claim of the “confidentiality” of the recruitment process, no claim to general “confidentiality” in a recruitment process can be maintained. First, recruitment processes have an overwhelmingly public element because the law requires the publication of vacancy notifications and the names of candidates who are successfully promoted to fill SES (and other APS) vacancies. Moreover, the Federal Circuit and Family Courts have regularly published the names and classifications of their SES officers in their annual reports: see, for example, page 87 of the 2017-2018 annual report of the Family Court of Australia, where the names, titles, locations and classifications of Senior Executive Service employees are recorded (Senior Registrar – John Fitzgibbon, SES Band 2, located in Victoria; Deputy Principal Registrar – Virginia Wilson, SES Band 1, located in ACT). Annual reports are publicly accessible.

Second, in Re Dyki and Federal Commissioner of Taxation, the Administrative Appeals Tribunal pointedly criticised the ATO’s claim that the disclosure of applications submitted by people for a vacancy would have a substantial adverse effect of the management and assessment of personnel. It follows, a fortiori, that emails between the Federal Court and the APSC in relation to selection processes for any and all Senior Executive Service Band 1 vacancies in the Federal Court of Australia would not, or could not reasonably be expected to, have a substantial adverse effect of the management and assessment of personnel.

Finally, Ms Sims simply advances a conclusion (“[t]he release of information relating to the FCFCOA’s recruitment processes would, or could, reasonably be expected to have a substantial adverse effect on the management of personnel by undermining trust in the confidentiality and integrity of the recruitment process of the FCFCOA”), without actually providing cogent reasons in support of the conclusion. Saying that “[t]he release of information relating to the FCFCOA’s recruitment processes would, or could, reasonably be expected to have a substantial adverse effect on the management of personnel by undermining trust in the confidentiality and integrity of the recruitment process of the FCFCOA” doesn’t make it so, particularly when there are no cogent reasons provided in support of the conclusion. In the light of the APSC’s track record of dubious decisions (which include FOI officers lying about the requirement to consult under ss 27 or 27A of the FOI Act to unlawfully extend the time to process FOI requests, or dubious claims about the existence of documents when, in reality, the documents do not fall within the scope of the requests, or disclosing documents in contravention of section 65 of the Public Interest Disclosure Act 2013, or deliberately refusing to deal with internal review requests with a view to crystallising a deemed affirmation decision, knowing, full well, that the deemed affirmation decision is plainly false), I do not think it would be wise to accept Charmaine Sims’ claims uncritically. Indeed, it would be foolish to do so.

Charmaine Sims’ claims cannot be sustained in the light of the law and the facts. Also, it would be foolish to accept such flimsy conclusions given just how willing FOI officers in the APSC are to lie about prevailing facts, and how willing they are to manipulate situations in contempt of the FOI Act. The FOI officers in the legal services team of the APSC have no credibility. With that in mind, I also seek review of the claimed section 47F conditional exemption.

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

FOI, Australian Public Service Commission

OFFICIAL
Dear Applicant

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

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

Regards,

FOI OFFICER
Legal Services

Australian Public Service Commission
Level 4, B Block, Treasury Building, Parkes Place West, PARKES ACT 2600 GPO Box 3176 CANBERRA ACT 2601

t: 02 6202 3500 w: www.apsc.gov.au

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FOI, Australian Public Service Commission

2 Attachments

OFFICIAL
Dear Stephanie

A decision notice is attached.

Regards

FOI OFFICER
Legal Services

Australian Public Service Commission
Level 4, B Block, Treasury Building, Parkes Place West, PARKES ACT 2600
GPO Box 3176 CANBERRA ACT 2601

t: 02 6202 3720  w: www.apsc.gov.au        
                           

This email and any attachments may contain confidential or legally privileged information, and neither are waived or lost if the email has been sent in error. If you have received this email in error, please delete it (including any copies) and notify the sender. Please consult with APSC Legal Services before using disclosing any part of this email or attachments to a third party.

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