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

Currently waiting for a response from Federal Court of Australia, they should respond promptly and normally no later than (details).

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 of 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 be, 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)).

That change in title was brought about about after April 2018 but on or beofre 30 June 2018 given that the 2017-2018 annual report of the Federal Court refers to the titles of registrars on 30 June 2018.

According to a memorandum dated 19 April 2018 and sent by Sia Lagos to all registrars in the Federal Court:

“… a report regarding the organisational review was tabled for discussion …

This memorandum provides an overview of the outcomes … relevant registrars and legal support staff and the consultation and implementation process that will take place …

Key Outcomes

1. Registrar titles

To appropriately recognise the important role of a Federal Court registrar and to transition the role to a dual national / local role (with an emphasis on legal work, drawing on specialised skill and knowledge), registrar titles will be amended … [T]here was overwhelming support in favour of acknowledging and improving the status of the Federal Court registrar role, including adding the title ‘judicial’ to appropriate registrar roles. The table below outlines the new titles for existing registrar roles:

CURRENT TITLE ---------- NEW TITLE

National Operations Registrar ---------- Principal Judicial Registrar & National Operations Registrar

District Registrar ---------- National Judicial Registrar & District Registrar
National Appeals Registrar ---------- National Judicial Registrar – Appeals
National Native Title Registrar ---------- National Judicial Registrar – Native Title

Deputy District Registrar ---------- Judicial Registrar
Native Title Registrar ---------- Judicial Registrar – Native Title

NCF Registrar ---------- National Registrar

Timing: The new titles will be used for the upcoming registrar recruitment exercise (see below). At an appropriate time in the coming months, either during or at the completion of the recruitment exercise, the new titles will be formally implemented across all registrar positions.”

(I invite the FOI decision maker to claim that what I have quoted from Ms Lagos’ memorandum of 19 April 2018 is untrue or unsubstantiated or without basis.)

That passage from Ms Lagos’ memorandum of 19 April 2018 explains the change in Mr Ryan’s title (from Deputy District Registrar to Judicial Registrar).

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 on the ground that they 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. 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 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 vacancy that David Ryan 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 David Ryan 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 David Ryan was selected to fill; and

c) the record of the reasons for decision (by a selection panel or otherwise) to select Ryan 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 David Ryan 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 an EL2 Judicial Registrar role, or an EL2 Deputy District Registrar role (with a vacancy notice identifier of NN 10656086), 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 David Ryan applied to fill; and
iv) is a notice for the National Judicial Registrar vacancy that David Ryan 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 for the Executive Level 2 Deputy District Registrar role that David Ryan was selected to fill (with an engagement date of 8 February 2016). 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 David Ryan 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 David Ryan 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 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 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 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 David Ryan 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 David Ryan 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. You know as well as I do that the vacancy notification does not exist.

You also know as well as I do that David Ryan did not apply for a National Judicial Registrar vacancy. He was handed the role and the title without being subjected to a merit based selection process.

You also know as well as I do that there are records of a selection decision or reasons for decision, made in the course of a merit based selection process, for the National Judicial Registrar role that David Ryan was handed.

I look forward to receiving a crafty response to my FOI request, probably requesting that I pay money for a wild goose chase for non existent documents, and a decision to tell me that the documents requested do not exist (or, more likely, that the documents do exist, but that it is not in the public interest to grant access to them even though, by objective measures, the documents do not actually exist and the claims that they do are just falsehoods advanced to protect those in charge or to save face).

Yours faithfully,

Ray B1