Dear Australian Public Service Commission,

According to an article published in the Australian (Federal Court boss warned on job rule sidestep), acting assistant commissioner Kate McMullan investigated the recruitment practices of the Federal Court. The article notes that the acting assistant commissioner did not substantiate allegations of impropriety in the recruitment processes which resulted in the appointment of eight registrars because there had been “a role review process that had resulted in certain positions being found suitable for either a Legal 2 or (SES1) position, depending on the relative complexity and workload” of the roles.

Nonetheless, the General Counsel of the Federal Court had reservations about the way in which people were being offered independent flexibility arrangements to “in effect, get around the [SES] cap.” The General Counsel of the Federal Court was also concerned about the broadbanding of duties across SES classifications. As the journalists suggest, it is explicitly against the law to classify a single role over more than one classification on the basis of “relative complexity and workload” (in other words, a broadband - see Public Service Classifications Rules 2000, r 9(5)).

The General Counsel’s concerns appear to be justified, which begs the question how it was that the acting assistant commissioner of the APSC was not troubled by the broadbanding of duties across SES classifications. It seems that the acting assistant commissioner messed up the investigation by making findings that cannot be supported under the law.

I would like to understand how an acting assistant commissioner of the Australian Public Service Commission could have reached the conclusions that she did.

Under the FOI Act, I request access to:

i. documents recording the “role review processes” that Kate McMullan based her conclusions on,
ii. documents setting out the classification assessments for the Legal 2 and SES1 versions of the National Judicial Registrar role that Kate McMullan would presumably have referred to when drawing her conclusions,
iii. documents that show that it is possible to broadband a group of duties over an SES classification even though the Public Service Classification Rules forbid such an act.

Yours faithfully,

Velan

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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attachments to a third party.

 

 

 

 

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FOI, Australian Public Service Commission

7 Attachments

OFFICIAL

Dear Applicant

 

A Decision Notice is attached.

 

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
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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: Monday, 28 February 2022 1:09 PM
To: Velan <[FOI #8519 email]>
Cc: FOI <[email address]>
Subject: Request SHC22-4121 [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        

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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

 

The Decision Notice issued at 10:58 am AEDT was in error.

 

The Decision Notice for matter SHC22-4121 is now attached.

 

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.

 

 

 

 

From: FOI <[email address]>
Sent: Thursday, 24 March 2022 10:58 AM
To: Velan <[FOI #8519 email]>
Cc: FOI <[email address]>
Subject: 4121 Decision Notice [SEC=OFFICIAL]

 

OFFICIAL

Dear Applicant

 

A Decision Notice is attached.

 

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.

 

 

 

 

 

From: FOI <[9][email address]>
Sent: Monday, 28 February 2022 1:09 PM
To: Velan <[10][FOI #8519 email]>
Cc: FOI <[11][email address]>
Subject: Request SHC22-4121 [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: [12]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
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show quoted sections

Dear Ms Strangio,

Please pass this on to the person who conducts Freedom of Information reviews.

I am writing to request an internal review of Australian Public Service Commission's handling of my FOI request 'Federal Court boss warned on job rule sidestep'.

Under the FOI Act, I had requested:

i) documents recording the “role review processes” that Kate McMullan based her conclusions on when conducting an investigation (apparently under the Public Interest Disclosure Act 2013),
ii) documents setting out the classification assessments for the Legal 2 and SES1 versions of the National Judicial Registrar role that Kate McMullan would presumably have referred to when drawing her conclusions, and
iii) documents that show that it is possible to broadband a group of duties over an SES classification even though the Public Service Classification Rules forbid such an act.

You decided to refuse access to the requested categories of documents under s 24A of the FOI Act.

In relation to (i), you stated:

All reasonable steps have been taken to find any document relevant to Part i. of your request. I refuse Part i. of your request under section 24A of the FOI Act. I cannot confirm or deny the existence of documents within scope of Part i. but I consider the documents requested are more closely connected with the functions of the Federal Court of Australia.

With respect, even if the documents requested are more closely connected with the functions of the Federal Court of Australia, that is hardly to the point. In an article in the Australia published on 9 February 2022, Ms McMullan is quoted as noting “a role review process that had resulted in certain positions being found suitable for either a Legal 2 or (SES1) position, depending on the relative complexity and work load.”

In order for Ms McMullan to have concluded that a role review process had been undertaken and had resulted in positions being found suitable for either a Legal 2 or (SES1) position, depending on the relative complexity and work load, Ms McMullan would have needed some evidence. Ms McMullan would not be carrying out an investigation for the purposes of the Public Interest Disclosure Act if she made up evidence. It is difficult to imagine what, other than documents recording the “role review processes” undertaken by somebody in the Federal Court of Australia, Ms McMullan could have relied to conclude that there were role review processes.

Also, you have refused access to the documents on the basis of s 24A of the FOI Act. The basis for such a refusal is because you have not been able to find the documents. This is concerning for at least two reasons. The first is that Ms McMullan might have drawn conclusions about the appropriateness of “positions being found suitable for either a Legal 2 or (SES1) position, depending on the relative complexity and work load” without reference to contemporaneous records. The second is that evidence of the role reviews might have been provided during the course of a PID investigation but staff at the APSC did not appropriately maintain the evidence (which probably warrants an FOI request). Either way, this should be of concern to the APSC.

Similar criticisms may, and are, be made in respect of (ii). It is unbelievable that the documents identified in (ii) cannot be located. How else would Ms McMullan have determined that the positions being found suitable for either a Legal 2 or (SES1) position, depending on the relative complexity and work load?

In relation to (iii), you stated:

While I refused Part iii. of your request, I note subsection 9(2A) of the Classification Rules states that the allocation of a classification (whether it be at the APS Level, Executive Level or SES) to a group of duties must be based on the work value of the group of duties described in the work level standards for the relevant classification. There may be circumstances in which a group of duties involves work requirements applying to more than one classification. Within the group of duties, there may be discrete jobs at different classification levels (determined in accordance with the relevant work level standards). In these circumstances, an Agency Head can also choose to allocate more than one classification to the group of duties (for non-SES employees only), which creates a broadband as described in subsections 9(4)-(5) of the Classification Rules.

So what? I know what subsection 9(2A) provides that the allocation of a classification (whether it be at the APS Level, Executive Level or SES) to a group of duties must be based on the work value of the group of duties described in the work level standards for the relevant classification. I also know that there may be circumstances in which a group of duties involves work requirements applying to more than one classification. Neither reason is to the point. The issue that was reported in the Australian was that a particular role (that of National Judicial Registrar) had groups of duties that involved work values (based on the complexity of responsibility of the tasks involved) applying over more than one classification. That is the classic definition of a broadband. Your references to subsection 9(2A) are just red herrings.

I think someone should again search for the documents requested. If the person conducting the internal review wants to embellish their internal review decision with commentary, please ask the person to remain on point.

A full history of my FOI request and all correspondence is available on the Internet at this address: https://www.righttoknow.org.au/request/f...

Yours faithfully,

Velan

FOI, Australian Public Service Commission

5 Attachments

OFFICIAL

Dear Applicant

 

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

The timeframe for responding to your internal review request is 30 days
from the date of receipt. This timeframe for internal review may be
extended in very limited 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        

[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.

 

 

show quoted sections

FOI, Australian Public Service Commission

7 Attachments

OFFICIAL

Dear Applicant

 

Please find attached a decision notice for your internal review request.

 

Kind 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: Wednesday, 30 March 2022 3:34 PM
To: Velan <[FOI #8519 email]>
Cc: FOI <[email address]>
Subject: Acknowledgement: Internal review of Freedom of Information
request - Federal Court boss warned on job rule sidestep [SEC=OFFICIAL]

 

OFFICIAL

Dear Applicant

 

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

The timeframe for responding to your internal review request is 30 days
from the date of receipt. This timeframe for internal review may be
extended in very limited 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.

 

 

show quoted sections

Australian Public Service Commission

 
 
  [1]Office of the Australian Information Reference Code:  
Commissioner ICR_10-48306820-2455
 

 
You submitted a form called: FOI Review_
 
Your form reference code is: ICR_10-48306820-2455

To check the progress of your submission and/or confirm it has been
received you should contact the agency that provides the form. These
details are displayed below.
 
 
Office of the Australian Information Commissioner
[2]http://www.oaic.gov.au | [3]1300 363 992 | [4][email address]
GPO Box 5218, Sydney NSW 2001
 
 
Note: Please do not reply to this auto-generated email.
 

References

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3. file:///tmp/tel:1300 363 992
4. mailto:[email address]

Australian Public Service Commission

 
 
  [1]Office of the Australian Information Reference Code:  
Commissioner ICR_10-48306820-2455
 

 
You submitted a form called: FOI Review_
 
Your form reference code is: ICR_10-48306820-2455

To check the progress of your submission and/or confirm it has been
received you should contact the agency that provides the form. These
details are displayed below.
 
 
Office of the Australian Information Commissioner
[2]http://www.oaic.gov.au | [3]1300 363 992 | [4][email address]
GPO Box 5218, Sydney NSW 2001
 
 
Note: Please do not reply to this auto-generated email.
 

References

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3. file:///tmp/tel:1300 363 992
4. mailto:[email address]

Australian Public Service Commission

1 Attachment

Our reference: MR22/00652

 

By email: [FOI #8519 email]

Receipt of your IC review application  

Thank you for your application for Information Commissioner Review (IC
review).

The Office of the Australian Information Commissioner (OAIC) is
considering your application.

If you wish to advise the OAIC of any changes to your circumstances,
including your contact details or if your FOI request has been resolved,
please write to [email address] and quote MR22/00652.

 

Yours sincerely

 

Freedom of Information Regulatory Group

Office of the Australian Information Commissioner

 

 

 

show quoted sections

Dear Mr Hetherington,

I requested access to:

i. documents recording the “role review processes” that Kate McMullan based her conclusions on,
ii. documents setting out the classification assessments for the Legal 2 and SES1 versions of the National Judicial Registrar role that Kate McMullan would presumably have referred to when drawing her conclusions,
iii. documents that show that it is possible to broadband a group of duties over an SES classification even though the Public Service Classification Rules forbid such an act.

You refused access to all three parts of my request on the basis that documents could not be found.

I accept that documents could not be found in respect of (iii). It is against the law to classify groups of duties over more than one classification when one of those classifications is an SES classification on the basis of the "relative complexity" of a role, as well as the relative "workload" as Ms Kate McMullan claimed when concluding that it was possible to do so to justify dismissing the allegations of wrongdoing against senior people in the Federal Court made in a public interest disclosure which was allocated to the APSC. Kate McMullan's conclusion is, as a matter of law, wrong which is probably why her PID investigation is being investigated by the Commonwealth Ombudsman.

You refused access to documents recording the “role review processes” that Kate McMullan based her conclusions on. Why? Are you suggesting that no documents were provided to the APSC? Are you suggesting that the APSC destroyed the documents? Are you suggesting that Kate McMullan made up the fact that role review processes were undertaken by the Federal Court to impermissibly broadband the National Judicial Registrar role across two classification bands, one of which was the SES1 band?

I sent an identically worded request to the Federal Court and Registrar Claire Hammerton Cole has refused to provide the documents requested in (i) on the basis that the documents were provided to the APSC as part of a PID investigation (although her reasons are not without serious issue): see https://www.righttoknow.org.au/request/s....

How could you and Ms Hammerton Cole both be right?

You refused access to documents setting out the classification assessments for the Legal 2 and SES1 versions of the National Judicial Registrar role that Kate McMullan would presumably have referred to when drawing her conclusions. Why? Are you suggesting that no documents were provided to the APSC? Are you suggesting that the APSC destroyed the documents? Are you suggesting that Kate McMullan made up evidence to support a conclusion that was, as a matter of law, wrong?

I sent an identically worded request to the Federal Court and Registrar Claire Hammerton Cole has refused to provide the documents requested in (ii) on the basis that the documents were provided to the APSC as part of a PID investigation (although her reasons are not without serious issue): see https://www.righttoknow.org.au/request/s....

How could you and Ms Hammerton Cole both be right?

I have applied for IC review of your decision as either you are misleading me or Ms Hammerton Cole is misleading me.

Yours faithfully,

Velan

Marcus left an annotation ()

In case you are interested Velan, the APSC now claims to have documents that record the role review processes that Kate McMullan based her conclusion on in her PID report. See:

https://www.righttoknow.org.au/request/d...

All of a sudden, the APSC has aligned its story with the Federal Court's - not that it makes much sense. See:

https://www.righttoknow.org.au/request/d...