Documents that address whether a person without essential qualifications may be engaged in the APS

The request was partially successful.

Dear Australian Public Service Commission,

This is a request for documents.

You are welcome to provide access to the requested documents via an administrative release. Otherwise, this is a request for documents under the FOI Act.

Background

I refer to an article published in the Australian this week. It is titled “Untried lawyers score key positions”. It was published on 8 February 2022.

In the 8 February 2022 article, there is a reference to a “confidential Australian Public Service Commission investigation” conducted by “acting assistant commissioner Kate McMullan”. The following is noted:

“… One employee was promoted to the position of national registrar in December 2016 despite not having been admitted as a practitioner in any state …

In a second instance, a legal case manager was offered a position as national registrar in September 2018 – over other experienced solicitors – months before he completed his College of Law legal training course …

Descriptions for the national registrar positions read: ‘This position may require the occupant to perform statutory legal functions, as necessary. Therefore, legal qualifications and admission as a practitioner of the High Court and/or the Supreme Court of a State or Territory of Australia is essential.’ ‘To undertake this role, the successful candidate must have … litigation and case management experience in superior courts of Australia.’

There was no breach in the case of the man, she wrote, because there was ‘a clear pathway to eligibility within a reasonable time after the recruitment process’ and ‘it was reasonable to expect other members … who had an anticipated date for admission to legal practice in the very near future would have felt it was open to them to apply for the position ...’”

Request

Presumably, the acting assistant commissioner came to the conclusion that “there was no breach in the case of the man, she wrote, because there was ‘a clear pathway to eligibility within a reasonable time after the recruitment process’ and ‘it was reasonable to expect other members … who had an anticipated date for admission to legal practice in the very near future would have felt it was open to them to apply for the position ...’” because it was permissible under the law for her to do so.

The quote “a clear pathway to eligibility within a reasonable time after the recruitment process” has got me stumped. It does not strike me as being in accordance with the Public Service Act 1999 or section 19 of the Australian Public Service Commissioner’s Directions 2016.

I would like access to any documents, including internal guidelines, memos, practice materials etc that provide that, despite what is noted about merit in the Public Service Act 1999 and section 19 of the Australian Public Service Commissioner’s Directions 2016, it is permissible, under the Public Service Act 1999, section 19 of the Australian Public Service Commissioner’s Directions 2016 (especially on the grounds of merit), or some other provision of a relevant law, for a person who did not meet essential criteria for a vacancy to be engaged/promoted to fill that vacancy because there was “a clear pathway to eligibility within a reasonable time after the recruitment process.”

You may provide digital copies of the documents by return email.

Question outside the scope of the FOI request

Separately, and if you are so inclined, you’re invited to provide a written explanation on how it was permissible under the Public Service Act 1999 and section 19 of the Australian Public Service Commissioner’s Directions 2016 (especially on the grounds of merit) for a person who did not meet essential criteria for a vacancy to be engaged/promoted to fill that vacancy because there was “a clear pathway to eligibility within a reasonable time after the recruitment process.”

Does that mean that members of the public can be selected to fill a vacancy in the Australian Public Service if they do not meet essential criteria, but may do so within a reasonable time after the culmination of a recruitment process?

Yours faithfully,

Stephanie

FOI, Australian Public Service Commission

5 Attachments

OFFICIAL

Dear Applicant

 

The Australian Public Service Commission (APSC) is writing to acknowledge
receipt of your request under the Freedom of Information Act 1982 (FOI
Act).

 

The timeframe for responding to your request is 30 days from the date of
receipt. This timeframe may be extended in certain circumstances. You will
be notified if these circumstances arise and the timeframe is extended.

 

Regards

 

FOI OFFICER

Legal Services

 

Australian Public Service Commission

Level 4, B Block, Treasury Building, Parkes Place West, PARKES ACT 2600
GPO Box 3176 CANBERRA ACT 2601

 

t: 02 6202 3500  w: [1]www.apsc.gov.au        

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This email and any attachments may contain confidential or legally
privileged information, and neither are waived or lost if the email has
been sent in error. If you have received this email in error, please
delete it (including any copies) and notify the sender. Please consult
with APSC Legal Services before using disclosing any part of this email or
attachments to a third party.

 

 

 

 

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FOI, Australian Public Service Commission

8 Attachments

OFFICIAL

Dear Applicant

 

Please find attached:

 

·         A Decision Notice; and

·         Document 1.

 

Regards

 

FOI OFFICER

Legal Services

 

Australian Public Service Commission

Level 4, B Block, Treasury Building, Parkes Place West, PARKES ACT 2600
GPO Box 3176 CANBERRA ACT 2601

 

t: 02 6202 3500  w: [1]www.apsc.gov.au        

[2]three hexagons[3]twitter icon [4]facebook
icon                          

 

 

 

 

This email and any attachments may contain confidential or legally
privileged information, and neither are waived or lost if the email has
been sent in error. If you have received this email in error, please
delete it (including any copies) and notify the sender. Please consult
with APSC Legal Services before using disclosing any part of this email or
attachments to a third party.

 

 

 

From: FOI <[email address]>
Sent: Friday, 11 February 2022 9:18 AM
To: Stephanie <[FOI #8400 email]>
Cc: FOI <[email address]>
Subject: RE: Freedom of Information request - Documents that address
whether a person without essential qualifications may be engaged in the
APS [SEC=OFFICIAL]

 

OFFICIAL

Dear Applicant

 

The Australian Public Service Commission (APSC) is writing to acknowledge
receipt of your request under the Freedom of Information Act 1982 (FOI
Act).

 

The timeframe for responding to your request is 30 days from the date of
receipt. This timeframe may be extended in certain circumstances. You will
be notified if these circumstances arise and the timeframe is extended.

 

Regards

 

FOI OFFICER

Legal Services

 

Australian Public Service Commission

Level 4, B Block, Treasury Building, Parkes Place West, PARKES ACT 2600
GPO Box 3176 CANBERRA ACT 2601

 

t: 02 6202 3500  w: [5]www.apsc.gov.au        

[6]three hexagons[7]twitter icon [8]facebook
icon                          

 

 

 

 

This email and any attachments may contain confidential or legally
privileged information, and neither are waived or lost if the email has
been sent in error. If you have received this email in error, please
delete it (including any copies) and notify the sender. Please consult
with APSC Legal Services before using disclosing any part of this email or
attachments to a third party.

 

 

 

 

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