Documents relating to the selection of Tuan Van Le as a National Judicial Registrar in the Federal Court

Waiting for an internal review by Federal Court of Australia of their handling of this request.

Dear Federal Court of Australia,

The annual reports of the Federal Court can be accessed on the website of the Federal Court – https://fedcourt.gov.au/digital-law-libr....

The first reference to Tuan Van Le in an annual report of the Federal Court of Australia is to be found in the 2018-2019 annual report. Tuan Van Le is listed as a Judicial Registrar based in Melbourne, Victoria, in the 2018-2019 annual report of the Federal Court of Australia (see page 131 of the 2018-2019 annual report). There is no reference to Tuan Van Le in any earlier published annual report of the Federal Court of Australia. That is explained by an unclassified email sent to all registrars of the Federal Court, among others, by Sia Lagos in Friday, 2 November 2018. In that email, titled “Update: Registrar recruitment”, Ms Lagos stated:

“As you are aware, over the past few months we have been undertaking an extensive recruitment exercise to backfill a number of vacant National Judicial Registrar positions and, as part of the extension of the National Court Framework to the work undertaken by registrars, establishing registrar resources to support judges nationally, including through greater availability to conduct mediations and specialist support in the area of migration.

I would like to take this opportunity to congratulate Tim Luxton, Murray Belcher and Russell Trott, on their appointment to the National Judicial Registrar and District Registrar roles for the VIC, QLD and WA registries respectively, and Katie Stride on her appointment to the National Judicial Registrar – Native Title position.

I addition, I would to congratulate (sic) and welcome the following Registrars to the Court, who will be introduced to the Judges and staff as part of their induction program:

Judicial Registrar – Tuan Van Le

This position will perform a dual role, as a Judicial Registrar carry out delegated functions, such as court work and mediations (primarily in Victoria but also at a national level), and a national role working on the extension of the National Court Framework. This will commence with his involvement in supporting the implementation of the national arrangements for the allocation of Judicial Registrar work. Tuan commenced with the Court on 8 October 2018 and is located in Melbourne …”

In the period between the publications of the 2018-2019 annual report and the 2019-2020 annual report, Tuan Van Le appears to have been elevated to the position of National Judicial Registrar. That is apparent because in the 2019-2020 annual report Tuan Van Le is listed as a National Judicial Registrar based in Melbourne, Victoria (page 126 of the 2019-2020 annual report).

According to the website of the Federal Court of Australia, Tuan Van Le had been trumpeted as a National Judicial Registrar from at least 27 March 2020 (web.archive.org/web/20200327163809/https://www.fedcourt.gov.au/about/regist...).

Tuan Van Le is listed as a National Judicial Registrar based in Melbourne in the 2020-2021 annual report of the Federal Court of Australia (see page 127 of the 2020-2021 annual report).

There is an apparent hierarchy of registrars in the Federal Court. A perusal of the Federal Court’s annual reports from the 2017-2018 financial year show that National Registrars are at the bottom of the hierarchy. National Registrars are outranked by Judicial Registrars, who are, in turn, outranked by National Judicial Registrars, who are, in turn, outranked by Senior National Judicial Registrars. There also appears to be a progression in the classifications of these registrars. National Registrar roles bear EL1 classifications, Judicial Registrar roles bear EL2 classifications, and Senior National Judicial Registrar roles bear SES Band 2 classifications. Interestingly, the National Judicial Registrar roles appear to be broadbanded across the Executive Level 2 and SES Band 1 classifications. This observation is based solely on position descriptions published on the Federal Court’s disclosure log (see PA2925-06/40 – www.fedcourt.gov.au/disclosurelog) because classification evaluation documents have been refused access to on multiple occasions by FOI decision makers on the ground that they do not exist / cannot be found (see, for example, https://www.righttoknow.org.au/request/p... https://www.righttoknow.org.au/request/c... https://www.righttoknow.org.au/request/m...).

According to the position descriptions for the Executive Level 2 classified National Judicial Registrar role and the SES Band 1 classified National Judicial Registrar role, National Judicial Registrars, among others things, are required to perform “a leadership role for Judicial Registrars and legal support staff at a local and national level.” This fact more than suggests that that National Judicial Registrars constitute a class of registrars that is distinct to Judicial Registrars and supports the view that National Judicial Registrars outrank Judicial Registrars. In fact, the Judicial Registrar role (PA2925-06/40), which is classified at the Executive Level 2 classification, is separate, and distinct in its requirements, to the National Judicial Registrar role (regardless of the classifications of the National Judicial Registrar role). There is a focus on the more complex nature of the legal work that National Judicial Registrars handle when those duties are compared to the duties that Judicial Registrars handle.

An article was published in The Australian on 9 February 2022 by the title Federal Court boss warned on job rule sidestep. The authors of that article noted that the “top Federal Court bureaucrat was warned by her deputy the court could be in breach of public service rules after it hired a string of … registrars on lower classifications – then bumped up their salaries and titles to ‘get around’ a limit on senior appointments.”

The journalists noted that “[s]ome internal promotions, the special deals known as individual flexibility arrangements show, were given pay rises of around $50,000 a year despite ostensibly remaining at the same level. Under public service rules, agencies and departments can apply more than one classification to a group of duties – a practice known as broadbanding. However, the rules say ‘this does not apply to a group of duties to be performed by an SES employee’.”

Following an investigation conducted by Kate McMullan of the Australian Public Service Commission, Ms McMullan made a finding that “allegations of impropriety in the recruitment of processes which resulted in the appointment of eight registrars under the [individual flexibility arrangements” were without basis because “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 workload.” This finding was made despite the fact that Scott Tredwell, the Acting Deputy Principal Registrar of the Federal Court at the time, wrote to Sia Lagos stating:

“I have some concerns regarding our proposed statements in respect of the SES cap and our use of Individual Flexibility Agreements to, in effect, get around the cap.

I’m also wondering how our response sits as against the Public Service Classification Rules 2000, particularly Rules 6 to 10.”

In a separate email, Matt Asquith, the Court’s Assistant People and Culture Director admitted that “the decision on whether to classify registrars into EL2 and SES1 bands is primarily based not only on the additional responsibilities undertaken, but ‘[t]he SES cap the Court has, and if the positions can fit within the cap.”

Since the publication of Federal Court boss warned on job rule sidestep on 9 February 2022, it has become apparent that the Office of the Commonwealth Ombudsman conducted a preliminary inquiry into the investigation conducted by Ms McMullan. On 18 March 2022, in a document bearing an internal reference number of 2021-104592, the acting Commonwealth Ombudsman wrote to the Australian Public Service Commissioner, noting:

“I am writing to advise the Office of the Commonwealth Ombudsman (the Office) has decided to commence an investigation under the Ombudsman Act 1976 (the Ombudsman Act) into the handling of a Public Interest Disclosure (PID) investigation by your PID Investigator Delegate, Ms Kate McMullan …

On 20 December 2021 the Office sent a preliminary inquiry to to the APSC under s 7A of the Ombudsman Act. The APSC provided an unredacted copy of the PID Investigator’s report on 20 December 2021, and the remainder of its response on 13 January 2022.

Having considered the information provided by the complainant and the APSC, the Office has decided to investigate the APSC’s handling of the PID Investigation.”

On at least three occasions, an FOI decision maker in the Federal Court has refused to provide documents evidencing Ms McMullan’s finding 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 workload” because such documents do not exist / cannot be found (https://www.righttoknow.org.au/request/s... https://www.righttoknow.org.au/request/d... https://www.righttoknow.org.au/request/r...). That does beg the question how Ms McMullan could have found 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 workload.”

Putting to one side the facts that:

a) two position descriptions published on the disclosure log of the Federal Court indicate that the National Judicial Registrar role is classified at both the Executive Level 2 classification and the SES Band 1 classification (PA2925-06/40); and

b) it is against the law to allocate more than one classification to a group of duties (or a role) under on the basis of the relative complexity of the duties, and workload, if one of the classifications is a Senior Executive Band classification (a point that was not lost on Scott Tredwell, the official who warned the top Federal Court bureaucrat about classifying roles with a view to getting around the rule 9(5) of the Public Service Classification Rules and the capped number of SES position available to the Federal Court Statutory Agency); and

c) the Federal Court does not have any documentary evidence of “a role review process [that] resulted in certain positions being found suitable for either a Legal 2 or (SES1) position, depending on the relative complexity and workload”; and

d) the PID investigation Ms McMullan conducted is now under investigation by the Commonwealth Ombudsman,

there are still glaring problems with Tuan Van Le’s elevation to the National Judicial Registrar role.

I have searched intently through many issues of the Public Service Gazette and have not come across any advertised National Judicial Registrar vacancies at the Executive Level 2 classification or the SES Band 1 classification (as distinct from SES 1 “National Judicial Registrar & District Registrar” vacancies, which are different to the “National Judicial Registrar” roles because the SES 1 “National Judicial Registrar & District Registrars” are, unlike “National Judicial Registrars” appointed to the office of District Registrar in a District Registry of the Federal Court e.g. Nicola Colbran, Tim Luxton – refer to annual reports of the Federal Court from 2018-2019 onwards). This would be problematic because, if there were no notices published in the Public Service Gazette for the “National Judicial Registrar” that Tuan Van Le was elevated to, eligible members of the Australian community would not have been given an opportunity to apply for the National Judicial Registrar role that Tuan Van Le was elevated to. That would contravene merit-based selection requirements set out in the Australian Public Service Commissioner’s Directions.

Under the FOI Act, I request access to:

a) the vacancy notification published in the Public Service Gazette for the National Judicial Registrar vacancy that Tuan Van Le applied for and was selected to fill in the course of a merit based selection process for that National Judicial Registrar role;

b) the record of decision (by a selection panel or otherwise) to select Tuan Van Le to fill the National Judicial Registrar vacancy, which was made in the course a merit based selection process for the National Judicial Registrar role that Tuan Van Le was selected to fill; and

c) the record of the reasons for decision (by a selection panel or otherwise) to select Tuan Van Le to fill the National Judicial Registrar vacancy, which was made in the course of a merit based selection process for the National Judicial Registrar role that Tuan Van Le was selected to fill.

Please read these paragraphs very carefully.

For example, consider paragraph (a). I do not want to be provided with vacancy notifications for an EL2 Judicial Registrar role (with a vacancy notice identifier of NN 10725190), an SES Band 2 Senior National Judicial Registrar role, or an SES Band 1 National Judicial Registrar & District Registrar role, or any other EL2 Judicial Registrar role, or an EL2 Deputy District Registrar role (with a vacancy notice identifier of NN 10656086), or an EL2 Deputy District Registrar role (with a vacancy notice identifier of NN 10343075) or an SES Band 1 National Appeal Registrar role, or an SES Band 1 National Judicial Registrar – Native Title role. None of these documents addresses (a) of the FOI request.

I am asking for a document that meets all of these criteria:

i) is a vacancy notice published in the Public Service Gazette; and
ii) the notice is for a role that bears the title National Judicial Registrar; and
iii) is a notice for the role (i.e. the National Judicial Registrar) that Tuan Van Le applied to fill; and
iv) is a notice for the National Judicial Registrar vacancy that Tuan Van Le did, in fact, come to fill by virtue of being selected to fill that National Judicial Registrar role following a merit based selection process.

Now consider paragraph (b). I do not want to be provided with a record of decision, prepared by a selection panel consisting of Sia Lagos, David Pringle and Andrea Jarratt, and signed by the members of the selection panel on 5 October 2018, and which has a Scout Reference Number of 99101, for the Executive Level 2 Judicial Registrar role that Tuan Van Le was selected to fill. I do not want to be provided with a record of decision for an SES Band 1 National Judicial Registrar & District Registrar – VIC role that Tim Luxton was selected to fill. SES Band 1 National Judicial Registrar & District Registrar – QLD role that Murray Belcher was selected to fill (but was denied promotion to for unlawful reasons). SES Band 1 National Judicial Registrar & District Registrar – WA role that Russell Trott was selected to fill (but was denied promotion to for unlawful reasons). I do not want to be provided with a record of decision for an SES Band 1 National Appeal Registrar role that Catherine Forbes was promoted to. I do not want to be provided with a record of decision for an SES Band 1 Native Title Registrar role that Catriona Stride was promoted to. None of these documents addresses (b) of my request.

I am asking for a document that meets all of these criteria:

i) is a record of decision to select Tuan Van Le for a National Judicial Registrar role; and
ii) is a record of decision made in the course of a merit based selection process for the National Judicial Registrar role that Tuan Van Le did, as a matter of fact, come to fill.

Now consider paragraph (c). I do not want to be provided with a record of reasons for decision, prepared by a selection panel consisting of Sia Lagos, David Pringle and Andrea Jarratt, and signed by the members of the selection panel on 5 October 2018, and which has a Scout Reference Number of 99101, for the Executive Level 2 Judicial Registrar role that Tuan Van Le was selected to fill. I do not want to be provided with a record of reasons for decision for an SES Band 1 National Judicial Registrar & District Registrar role. I do not want to be provided with a record of reasons for decision for the SES Band 2 Senior National Judicial Registrar role. I do not want to be provided with a record of reasons for decision for an SES Band 1 National Appeal Registrar role. I do not want to be provided with a record of reasons for decision for an SES Band 1 National Judicial Registrar – Native Title role. I do not want to be provided with a record of reasons for the EL2 Deputy District Registrar role, with vacancy identifier NN 10656086. I do not want to be provided with a record of reasons for the EL2 Deputy District Registrar role, with vacancy identifier NN 10343075. I do not want to be provided with a record of reasons for an EL2 Judicial Registrar role. None of these documents addresses paragraph (c) of my request.

I am asking for a document that meets all of these criteria:

i) is a record of reasons for decision to select Tuan Van Le for a National Judicial Registrar vacancy; and
ii) is a record of reasons for decision made in the course of a merit based selection process for the National Judicial Registrar role that Tuan Van Le did, as a matter of fact, come to fill.

I have scoured the Public Service Gazette to find a vacancy notification for a National Judicial Registrar role. I have not found it. I have reviewed past FOI applications made for the vacancy notification published in the Public Service Gazette for the National Judicial Registrar role. FOI decision makers have failed to provide the vacancy notification. That does beg the question how Tuan Van Le was able to apply for the National Judicial Registrar role he was elevated to, and whether he was elevated to that position in a way that would have contravened the merit based selection requirements set out in the Public Service Act 1999 and the Australian Public Service Commissioner’s Directions 2016.

Yours faithfully,

Ray B1

External FOI, Federal Court of Australia

OFFICIAL
Dear Ray B1

I refer to and acknowledge receipt of your request, received on 24 August 2022 and communicated by email to [email address], for access to documents under the Freedom of Information Act 1982 (Cth) (FOI Act).

Based on the Court's preliminary assessment of your FOI request, it has been determined that, at this stage, you are not liable to pay a charge. If that changes, the Court will inform you and will issue you with a notice of charge as required by the FOI Act.

Kind regards

FOI Officer
Federal Court of Australia

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External FOI, Federal Court of Australia

1 Attachment

OFFICIAL
Dear Ray B1

Please find attached correspondence from the Federal Court of Australia.

Kind regards

FOI Officer

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Dear B Henderson,

Your response to my FOI request is unsatisfactory.

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

I am writing to request a complete internal review of Federal Court of Australia's handling of my FOI request 'Documents relating to the selection of Tuan Van Le as a National Judicial Registrar in the Federal Court'.

How could Tuan Van Le have been elevated to the National Judicial Registrar vacancy from a Judicial Registrar position if he didn’t apply for elevation to the National Judicial Registrar vacancy? There must have been some notice of the existence of that National Judicial Registrar vacancy for Tuan Van Le to have applied for that vacancy and for somebody to elevate him to that position on the merits of his claim. Search again for the vacancy notification published in the Public Service Gazette for the National Judicial Registrar vacancy that Tuan Van Le applied for and was selected to fill in the course of a merit based selection process for that National Judicial Registrar role.

How could Tuan Van Le have been elevated to the National Judicial Registrar vacancy from a Judicial Registrar position if there is no record of a decision to select him to fill that National Judicial Registrar vacancy in the course a merit based selection process for that National Judicial Registrar vacancy? Search again for the record of decision (by a selection panel or otherwise) to select Tuan Van Le to fill the National Judicial Registrar vacancy, which was made in the course a merit based selection process for the National Judicial Registrar role that Tuan Van Le was selected to fill.

How could Tuan Van Le have been elevated to the National Judicial Registrar vacancy from a Judicial Registrar position if there is no record of the reasons for the decision to select him to fill that National Judicial Registrar vacancy in the course a merit based selection process for that National Judicial Registrar vacancy? Search again for the record of the reasons for the decision (by a selection panel or otherwise) to select Tuan Van Le to fill the National Judicial Registrar vacancy, which was made in the course a merit based selection process for the National Judicial Registrar role that Tuan Van Le was selected to fill.

Why is it that these documents do not exist? Are you conceding that the Federal Court does not conduct merit based selection processes to select the people that will be engaged? Are you conceding that Federal Court staff believe themselves to be above the laws of the Commonwealth? This appears to be a systematic issue. Consider your responses to:

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

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

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

Also consider Ms Colbran’s response to the following FOI request:

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

The management of the Federal Court has a lot to answer for.

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,

Ray B1