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Documents relating to the selection of Matthew Benter as an Executive Level 2 National Judicial Registrar in the Federal Court

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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 Matthew Benter in an annual report of the Federal Court of Australia is to be found in the 2018-2019 annual report. Matthew Benter is listed as a National Judicial Registrar based in Perth, Western Australia, in the 2018-2019 annual report of the Federal Court of Australia (see page 130 of the 2018-2019 annual report). There is no reference to Matthew Benter 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:

National Judicial Registrar – Matthew Benter

This position will primarily be responsible for performing delegated judicial functions at a high level, including conducting complex mediations and case management locally and nationally, and supporting National Coordinating NPA judges with the management of NPAs. Matthew will be located in Perth and commences with the Court on 19 November 2018. Matthew has over 20 years’ experience in civil litigation across private practice, government and in-house roles. Matthew has extensive experience in large scale and complex litigation, corporate regulation and the civil penalty regime and administrative law …”

Matthew Benter is listed as a National Judicial Registrar based in Perth in the 2019-2020 annual report of the Federal Court of Australia (see page 126 of 2019-2020 annual report).

Matthew Benter is listed as a National Judicial Registrar based in Perth in the 2020-2021 annual report of the Federal Court of Australia (see page 127 of the 2020-2021 annual report).

According to a document dated 19 October 2018 and titled “Offer of Engagement – Ongoing APS Employee”, Mr Benter was offered, by the Agency Head, ongoing and full-time employment to fill an Executive Level 2 National Judicial Registrar vacancy. The document provides:

“19 October 2018

Mr Matthew Benter …

Dear Matthew,

Offer of Engagement – Ongoing APS Employee

I am pleased to advise you have been offered ongoing employment in the Federal Court of Australia. The details and conditions of your ongoing employment are outlined in this letter.

1. Position Details

Jurisdiction ---------- Federal Court of Australia
Job Title --------- National Judicial Registrar
Location ----------- Perth, WA
Classification ---------- Legal 2 (EL 2)
Salary ----------- $150,391 per annum, plus superannuation
Position Number ---------- 1645
Status ---------- Ongoing, Full-Time
Commencement Date ---------- 19 November 2018

2. Terms and Conditions of Employment

The terms and conditions of the employment are as set out in the Federal Court of Australia Enterprise Agreement 2018-2021, and any enterprise agreement that replaced that agreement.
Other terms and conditions of your employment are set out in Commonwealth legislation, including the Public Service Act 1999.

6. Acceptance of the Offer

… If you have any questions regarding your employment, please do not hesitate to contact Darrin Moy on 0410 …”

Mr Benter accepted the “Offer of Engagement – Ongoing APS Employee” on 22 October 2018.

Attached to that “Offer of Engagement – Ongoing APS Employee” was an individual flexibility arrangement and according to its terms, Mr Benter was offered a handsome increase in his rate of pay (clauses 3.2 and 3.3 of the IFA).

Mr Benter accepted the terms of the individual flexibility arrangement attached to the “Offer of Engagement – Ongoing APS Employee” on 22 October 2018.

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 Mr Benter’s engagement to fill the Executive Level 2 National Judicial Registrar vacancy.

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 (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 is problematic because, if there was no notice published in the Public Service Gazette for the Executive Level 2 “National Judicial Registrar” that Matthew Benter was engaged to fill, eligible members of the Australian community would not have been given an opportunity to apply for the Executive Level 2 National Judicial Registrar vacancy that Mr Benter was engaged to fill. 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 Executive Level 2 National Judicial Registrar vacancy that Matthew Benter applied for;

b) the vacancy notification published in the Public Service Gazette for the Executive Level 2 National Judicial Registrar vacancy that Matthew Benter was selected to fill in the course of a merit based selection process for that Executive Level 2 National Judicial Registrar role;

c) the record of decision (by a selection panel or otherwise) to select Matthew Benter to fill the Executive Level 2 National Judicial Registrar vacancy, which was made in the course a merit based selection process for the Executive Level 2 National Judicial Registrar role that Matthew Benter was selected to fill; and

d) the record of the reasons for decision (by a selection panel or otherwise) to select Matthew Benter to fill the Executive Level 2 National Judicial Registrar vacancy, which was made in the course a merit based selection process for the Executive Level 2 National Judicial Registrar role that Matthew Benter was selected to fill.

I have scoured the Public Service Gazette to find a vacancy notification for an Executive Level 2 National Judicial Registrar vacancy. I have not found it. I have reviewed past FOI applications made for the vacancy notification published in the Public Service Gazette for the Executive Level 2 National Judicial Registrar role. Nicola Colbran has conceded that the vacancy notification was never published. That does beg the question how Matthew Benter, a candidate who was recruited from outside the Australia Public Service, was able to apply for the Executive Level 2 National Judicial Registrar vacancy he was engaged to fill, and whether he was engaged to fill 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.

Please read these paragraphs very carefully and ensure that the documents you claim fall within the scope of the FOI request do, in fact, fall within the scope of the FOI request.

Yours faithfully,

Ray B1

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
Federal Court of Australia

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Dear FOI Officer,

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, 30 minutes. I do not think that to be the case. I have been very specific with my request and all of the documents requested would reasonably be expected to be located in a single location – Matthew Benter’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 30 minutes to find documents that are plainly similar in their nature (i.e. documents pertaining to the merit based recruitment of Matthew Benter into an Executive Level 2 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; 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 exceeds the reasonable cost to the agency of searching for the documents.

Accordingly, the proposed search charge is inappropriate.

I requested the following documents:

a) the vacancy notification published in the Public Service Gazette for the Executive Level 2 National Judicial Registrar vacancy that Matthew Benter applied for;
b) the vacancy notification published in the Public Service Gazette for the Executive Level 2 National Judicial Registrar vacancy that Matthew Benter was selected to fill in the course of a merit based selection process for that Executive Level 2 National Judicial Registrar role;
c) the record of decision (by a selection panel or otherwise) to select Matthew Benter to fill the Executive Level 2 National Judicial Registrar vacancy, which was made in the course a merit based selection process for the Executive Level 2 National Judicial Registrar role that Matthew Benter was selected to fill; and
d) the record of the reasons for decision (by a selection panel or otherwise) to select Matthew Benter to fill the Executive Level 2 National Judicial Registrar vacancy, which was made in the course a merit based selection process for the Executive Level 2 National Judicial Registrar role that Matthew Benter was selected to fill.

You know as well as I that no vacancy notification was published in the Public Service Gazette for the Executive Level 2 National Judicial Registrar vacancy. Accordingly, Matthew Benter could not have applied for an Executive Level 2 National Judicial Registrar vacancy. It follows that Matthew Benter could not have been selected to fill an Executive Level 2 National Judicial Registrar vacancy in the course of a merit based selection process for that Executive Level 2 National Judicial Registrar role. This much has been confirmed by National Judicial Registrar and District Registrar Nicola Colbran on internal review: https://www.righttoknow.org.au/request/m... and https://www.righttoknow.org.au/request/p....

You know as well as I that no record of decision (by a selection panel or otherwise) to select Matthew Benter to fill the Executive Level 2 National Judicial Registrar vacancy was made in the course a merit based selection process for the Executive Level 2 National Judicial Registrar role that Matthew Benter was selected to fill. Do not try to pass off the record of decision to select Russell Trott to fill an SES Band 1 National Judicial Registrar & District Registrar vacancy as the record of decision that I have requested. You know as well as I that Matthew Benter was not selected to fill the Executive Level 2 National Judicial Registrar vacancy that he succeeded in securing in the course of a merit based selection process. For that matter, you know as well as I that Russell Trott was denied promotion to the Senior Executive Service of the APS despite Sia Lagos endorsing, as the agency head’s delegate, the recommendation of the selection panel convened to consider applications for the SES Band 1 National Judicial Registrar & District Registrar – WA vacancy to promote Russell Trott to the SES Band 1 National Judicial Registrar & District Registrar – WA role: https://www.righttoknow.org.au/request/d.... If you think you’re going to pass of a document that proves that Russell Trott was selected for promotion to fill the SES Band 1 National Judicial Registrar & District Registrar – WA vacancy as the document that I have requested, you should think again.

As you already know, National Judicial Registrar & District Registrar Nicola Colbran set aside the duplicitous reasons that Claire Hammerton Cole advanced and confirmed, in response to a request for the selection committee's selection report in relation to the National Judicial Registrar role that Matthew Benter applied for and was selected to fill, that the selection report did not exist: https://www.righttoknow.org.au/request/m....

You know as well as I that a record of the reasons for decision (by a selection panel or otherwise) to select Matthew Benter to fill the Executive Level 2 National Judicial Registrar vacancy, which was made in the course a merit based selection process for the Executive Level 2 National Judicial Registrar role that Matthew Benter was selected to fill, does not exist because there was never a merit based selection process for the Executive Level 2 National Judicial Registrar role that Matthew Benter was selected to fill.

I have 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. Don’t try to lie your way through this. I was lied to about the existence of documents and the need to pay for those documents by the FOI Officer. I called this liar’s bluff. B Henderson conceded as much: https://www.righttoknow.org.au/request/d....

You must be having a laugh if you think that it will take 5.5 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 5.5 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 Executive Level 2 National Judicial Registrar vacancy that Matthew Benter applied for; and
b) there was no vacancy notification published in the Public Service Gazette for the Executive Level 2 National Judicial Registrar vacancy that Matthew Benter was selected to fill in the course of a merit based selection process for that Executive Level 2 National Judicial Registrar role; and
c) no records exist of a decision (by a selection panel or otherwise) to select Matthew Benter to fill the Executive Level 2 National Judicial Registrar role, which was made in the course a merit based selection process for the Executive Level 2 National Judicial Registrar vacancy that Matthew Benter was selected to fill; and
d) no records exist of the reasons for decision (by a selection panel or otherwise) to select Matthew Benter to fill the Executive Level 2 National Judicial Registrar role, which was made in the course of a merit based selection process for the Executive Level 2 National Judicial Registrar vacancy that Matthew Benter was selected to fill; and
e) I am quite confident that (a) – (d) are correct,

the 5.5 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.

Yours sincerely,

Ray

External FOI, Federal Court of Australia

OFFICIAL
Dear Ray B1

I acknowledge receipt of your email below contesting the charges as advised by letter from the Federal Court of Australia dated 28 September 2022 in relation to your FOI request of 14 September 2022.

Kind regards

FOI Officer
Federal Court of Australia

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We don't know whether the most recent response to this request contains information or not – if you are Ray B1 please sign in and let everyone know.