Documents relating to the selection of David Ryan as a National Judicial Registrar in the Federal Court

This request has been withdrawn by the person who made it. There may be an explanation in the correspondence below.

Dear Federal Court of Australia,

According to pages 21 and 22 of Public Service Gazette PS 45 of 2015, a deputy district registrar vacancy was advertised to the Australian community. The vacancy identifier was NN 10656086. The vacancy was based in Melbourne, in the Victoria Registry of the Federal Court. The job type was ongoing, full-time. The role bore a classification of Executive Level 2. The salary for the role was $140,503 - $146,011.

The duties for the role were:

a) performing the functions of a deputy district registrar as prescribed in legislation and Court Rules;
b) performing delegated judicial functions in relation to matters before the Court;
c) conducting mediations;
d) performing the function of case manager and consulting registrar, which included supporting the various national practice areas through the National Court framework.

On pages 196 and 197 of Public Service Gazette PS 07 of 2016, there is an engagement notice. The engagement notice identifier is NN 10665794. The engagement notice sets out the name of the person who was engaged to fill vacancy NN 10656086, the deputy district registrar vacancy advertised in PS 45 of 2015. The person selected to fill vacancy NN 10655794, on an ongoing, full-time basis in Melbourne was David Ryan. The date of his engagement is listed as 8 February 2016.

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

David Ryan is listed as a Deputy District Registrar based in the Victoria Registry in the 2015-2016 annual report of the Federal Court of Australia (see page 139 of the 2015-2016 annual report).

David Ryan is listed as a Deputy District Registrar based in the Victoria Registry in the 2016-2017 annual report of the Federal Court of Australia (see page 135 of the 2016-2017 annual report).

In the period between the publications of the 2016-2017 annual report and the 2017-2018 annual report, there appears to have been a change to Mr Ryan’s title. There also appears to have been a change to the titles of Court’s deputy district registrars, regardless of the registries in which the deputy district registrars worked. They appear to have been, in a somewhat aggrandising manner, held out to the public as “Judicial Registrars”. Unlike the deputy district registrar title, the “Judicial Registrar” title has no basis in the Federal Court of Australia Act 1976 (Cth). Other than the office of Chief Executive Officer and Principal Registrar, only three registrar offices are recognised in the Federal Court of Australia Act 1976. They are deputy district registrar (s 18N(1)(b)), district registrar (s 18N(1)(a)) and registrar (s 18N(1)(aa)).

David Ryan is, along with his colleague Rupert Burns, listed as a Judicial Registrar based in Melbourne in the 2017-2018 annual report of the Federal Court of Australia (see page 136 of the 2017-2018 annual report).

David Ryan is listed as a Judicial Registrar based in Melbourne in the 2018-2019 annual report of the Federal Court of Australia (see page 131 of the 2018-2019 annual report). His appointment to the office of deputy district registrar of the Federal Court is also noted on page 131.

In the period between the publications of the 2018-2019 annual report and the 2019-2020 annual report, Mr Ryan appears to have been elevated to the position of National Judicial Registrar. That is apparent because in the 2019-2020 annual report, David Ryan is listed as a National Judicial Registrar (page 126 of the 2019-2020 annual report). Despite his change in title, his appointment to the office of deputy district registrar of the Federal Court remains unaltered because his appointment to the office of deputy district registrar is noted on page 126 of the 2019-2020 annual report.

David Ryan 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). His appointment to the office of deputy district registrar of the Federal Court is also noted on page 127.

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 in the Federal Court, on the grounds that such evaluation documents do not exist / cannot be found.

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. Furthermore, 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). According to the positions descriptions, the nature of the legal work performed by National Judicial Registrars appears to be of a relatively "complex" nature of the legal work 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.”

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 Ryan’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 Mr Ryan 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 Mr Ryan 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 role that David Ryan was selected to fill following a merit based selection process for that National Judicial Registrar role;

b) the position description for the National Judicial Registrar role that David Ryan was selected to fill;

c) any and all classification evaluation documentation for the National Judicial Registrar role that David Ryan was selected to fill;

d) the record of the analysis leading to the task and job design of the National Judicial Registrar role that David Ryan was selected to fill;

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) for the National Judicial Registrar role that David Ryan was selected to fill;

f) the assessment of the resource impact of the creation of the National Judicial Registrar role that David Ryan was selected to fill;

g) the evidence that there was a need for the National Judicial Registrar role that David Ryan was selected to fill;

h) the job application David Ryan submitted for the National Judicial Registrar role;

i) the record of decision (by a selection panel or otherwise) to select David Ryan to fill the National Judicial Registrar role following a merit based selection process for that National Judicial Registrar role; and

j) the record of the reasons for decision (by a selection panel or otherwise) to select David Ryan to fill the National Judicial Registrar role following a merit based selection process for that National Judicial Registrar role.

The meaning of merit based selection can be gleaned from the Public Service Act 1999 and the Australian Public Service Commissioner's Directions 2016 (the direction that was in force at the time Mr Ryan was elevated to the position of National Judicial Registrar).

Please read these paragraphs very carefully. For example, consider paragraph (a). I do not want to be provided with the deputy district registrar vacancy notification (NN 10656086) because that is not the document that I have requested. Or consider paragraph (h). I am not asking you about the application submitted when David Ryan applied to fill the deputy district registrar vacancy advertised in PS 45 of 2015 (vacancy identifier - NN 10656086).

Please do not waste time on consultations (e.g. under section 27A of the FOI Act) when the consultations have no relevance to the scope of the FOI request. Please remain focused.

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

show quoted sections

Dear FOI Officer,

I withdraw this request.

Yours sincerely,

Ray B1