Documents relating to the selection of Susan O'Connor as an SES Band 1 National Judicial Registrar in the Federal Court

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,

According to a document associated with disclosure 2925-06/9 published on the Federal Court of Australia's FOI disclosure log (www.fedcourt.gov.au/disclosurelog), Susan O'Connor was engaged, in November 2018, from outside of the Australian Public Service, to fill an SES Band 1 National Judicial Registrar role, based in New South Wales, on a full time, ongoing basis.

Given that Ms O'Connor was engaged from outside of the Australia Public Service as an SES Band 1 National Judicial Registrar, Ms O'Connor could not have been transferred into the Federal Court Statutory Agency under sections 26 or 27 of the Public Service Act 1999.

Given that Ms O'Connor was engaged from outside of the Australia Public Service as an SES Band 1 National Judicial Registrar, one would expect that Ms O'Connor applied for the SES Band 1 National Judicial Registrar role that she was selected to fill.

Given that Ms O'Connor was engaged from outside of the Australia Public Service as an SES Band 1 National Judicial Registrar, one would expect that the SES Band 1 National Judicial Registrar role was advertised to people outside of the Australian Public Service (i.e. to the Australian community).

All fairly uncontroversial.

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.

Please read these paragraphs very carefully.

For example, consider paragraph (a). I do not want to be provided with vacancy notifications for an SES Band 2 Senior National Judicial Registrar role, or an SES Band 1 National Judicial Registrar & District Registrar role, or a EL2 Judicial Registrar 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 classified at the SES Band 1 classification; and
iii) the notice is for a role that bears the title National Judicial Registrar; and
iv) is a notice for the role (i.e. the SES Band 1 National Judicial Registrar) that Susan O'Connor applied to fill; and
v) is a notice for the SES Band 1 National Judicial Registrar role that Susan O'Connor has, in fact, come to fill by virtue of being selected to fill that SES Band 1 National Judicial Registrar role.

Now consider paragraph (b). I do not want to be provided with the certification issued by the Australian Public Service Commissioner's representative for an SES Band 2 Senior National Judicial Registrar role. I do not want to be provided with the certification issued by the Australian Public Service Commissioner's representative for an SES Band National Judicial Registrar & District Registrar - VIC role. I do not want to be provided with the certification issued by the Australian Public Service Commissioner's representative for an SES Band National Judicial Registrar & District Registrar - QLD role. I do not want to be provided with the certification issued by the Australian Public Service Commissioner's representative for an SES Band National Judicial Registrar & District Registrar - WA role. Not one of these documents addresses (b) of my FOI request.

Susan O'Connor did not secure an SES Band 2 Senior National Judicial Registrar role following a merit based selection process. Therefore the Australian Public Service Commissioner's representative's certification for an SES Band 2 Senior National Judicial Registrar role does not address (b) of my request.

Susan O'Connor did not secure the SES Band 1 National Judicial Registrar & District Registrar - VIC role following a merit based selection process. That role was secured by Tim Luxton following a merit based selection process. Therefore the Australian Public Service Commissioner's representative's certification for an SES Band National Judicial Registrar & District Registrar - VIC role does not address (b) of my request.

Susan O'Connor did not secure the SES Band 1 National Judicial Registrar & District Registrar - QLD role following a merit based selection process. That role was secured by Murray Belcher following a merit based selection process, even though he was denied promotion to the Senior Executive Service because senior officials in the Federal Court conspired with one another and allocated an Executive Level 2 classification to Murray Belcher. Therefore the Australian Public Service Commissioner's representative's certification for an SES Band National Judicial Registrar & District Registrar - QLD role does not address (b) of my request.

Susan O'Connor did not secure the SES Band 1 National Judicial Registrar & District Registrar - WA role following a merit based selection process. That role was secured by Russell Trott following a merit based selection process, even though he was denied promotion to the Senior Executive Service because senior officials in the Federal Court conspired with one another to deny Mr Trott lawful promotion. Therefore the Australian Public Service Commissioner's representative's certification for an SES Band National Judicial Registrar & District Registrar - QLD role does not address (b) of my request.

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

i) is a certification issued by the Australian Public Service Commissioner's representative; and
ii) the certification was issued in the course of the representative's participation in a merit based selection process; and
iii) the merit based selection process that the representative certified was for the SES Band 1 National Judicial Registrar role that Susan O'Connor, as a matter of fact, succeeded in securing; and
iv) the certification issued certifies the selection process for the SES Band 1 National Judicial Registrar role that Susan O'Connor, as a matter of fact, succeeded in securing.

Now consider paragraph (c). 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, for the SES Band 2 Senior National Judicial Registrar role (the role had a "Scout Reference Number" of 99096). I do not want to be provided with a record of decision for an SES Band 1 National Judicial Registrar & District Registrar role. I do not want to be provided with a record of decision for an SES Band 1 National Appeal Registrar role. I do not want to be provided with a record of decision for an SES Band 1 Native Title Registrar role. None of these documents addresses (c) of my request.

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

i) is a record of decision to select Susan O'Connor for a National Judicial Registrar role classified at the SES Band 1 classification; and
ii) is a record of decision made in the course of a merit based selection process for the SES Band 1 National Judicial Registrar role that Susan O'Connor did, as a matter of fact, come to fill.

Now consider paragraph (d). I do not want to be provided with 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 Judicial Registrar & District 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 Native Title Registrar role. None of these documents addresses (d) 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 Susan O'Connor for a National Judicial Registrar role classified at the SES Band 1 classification; and
ii) is a record of reasons for decision made in the course of a merit based selection process for the SES Band 1 National Judicial Registrar role that Susan O'Connor did, as a matter of fact, come to fill.

I have scoured the Public Service Gazette to find a vacancy notification for an SES Band 1 National Judicial Registrar role. It does not exist. I have reviewed past FOI application made for the vacancy notification published in the Public Service Gazette for the SES Band 1 National Judicial Registrar role. FOI decision makers have failed to provide the vacancy notification. The vacancy notification does not exist.

As to the rest of the documents, I believe that they do not exist because I have seen a public interest disclosure, which convincingly identifies the unlawful conduct engaged in by senior officials in the Federal Court to take the SES Band 1 classification that would have been allocated to Murray Belcher and allocate it to somebody else. Justice Greenwood alluded to this unlawful conduct, in an article published on 10 February 2022 in The Australian, when he noted that the classification had been moved elsewhere in the organisation to cheat Mr Belcher out of his lawful promotion to the Senior Executive Service.

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, 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 associate 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 8 August 2022 in relation to your FOI request of 24 July 2022.

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
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 a complete internal review of Federal Court of Australia's handling of my FOI request 'Documents relating to the selection of Susan O'Connor as an SES Band 1 National Judicial Registrar in the Federal Court'.

Let’s recap.

On 8 August 2022, I was furnished with an invoice to pay for access to non-existent documents. An official of the Court tells me that I must pay a deposit of $20 before any further work on the FOI request is undertaken. That Court official tells me that I must pay for the search and retrieval of non-existent documents and that I would be charged for a decision making process to determine whether I would be provided access to documents that do not exist.

On 14 August 2022, I call this Court official’s bluff (https://www.righttoknow.org.au/request/d...).

On 13 September 2022, you render the following decision:

I have decided, pursuant to subsection 24A(1) of the FOI Act, to refuse your request for access to 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.

In other words, the Federal Court has refused to provide:

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,

because these documents do not exist or cannot be found.

According to PA2925-06/9 on the Federal Court’s disclosure log, Susan O’Connor was engaged to fill an SES Band 1 National Judicial Registrar vacancy from 19 November 2018 on an ongoing, full-time basis.

In an unclassified email sent by Sia Lagos to, among others, the Court’s registrars on 2 November 2018, the following is recorded:

“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 congratulate and welcome the following Registrars to the Court, who will be introduced to Judges and staff as part of their induction program:

...

National Judicial Registrar – Susan O’Connor

This position will be primarily responsible for performing delegated judicial functions at a high level, including conducting complex mediations and case management locally and nationally, and supporting the National Coordinating NPA judges with the management of NPAs. Susan will be located in Sydney and commences with the Court on 19 November 2018. Susan was a principal and Griffith Hack Lawyers where she led and managed lawyers across Sydney, Melbourne, Brisbane and Perth …”

How did Ms O’Connor, a candidate who was selected from outside the Australian Public Service, come to fill an SES Band 1 National Judicial Registrar vacancy for which there was no vacancy notification? How did Ms O’Connor apply for an SES Band 1 National Judicial Registrar vacancy if there was no vacancy notification for the vacancy? How did Ms O’Connor come to fill an SES Band 1 National Judicial Registrar vacancy for which no certification was issued by the Australian Public Service Commissioner’s representative? How was Ms O’Connor selected to fill an SES Band 1 National Judicial Registrar vacancy if there is no record of the decision of a selection panel to select Ms O’Connor in the course of a merit based selection process? How was Ms O’Connor selected to fill an SES Band 1 National Judicial Registrar vacancy if there is no record of the reasons for decision of the selection panel that selected Ms O’Connor for the role in the course of a merit based selection process?

A person from outside the Australian Public Service is:

a) recruited to fill an SES Band 1 National Judicial Registrar vacancy for which vacancy there is no notification; and
b) recruited to fill an SES Band 1 National Judicial Registrar vacancy for which she did not apply (how could she have? The vacancy was never notified); and
c) recruited to fill an SES Band 1 National Judicial Registrar vacancy without a merit based selection process for the SES Band 1 National Judicial Registrar vacancy.

I do not need to tell you why the failure to provide the requested documents is unsatisfactory.

I request a complete internal review of the decision to refuse access to the requested documents.

No egg on my face.

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

External FOI, Federal Court of Australia

OFFICIAL
Dear Ray B1,

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 13 September 2022.

Kind regards,

FOI Officer
Federal Court of Australia

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