Mark Anstey's investigation into whether Kate McMullan complied with paragraph 53(5)(b) of the Public Interest Disclosure Act 2013 (Cth)

Currently waiting for a response from Commonwealth Ombudsman, they should respond promptly and normally no later than (details).

Dear Commonwealth Ombudsman,

The following is contained in an item of correspondence prepared by Kate McMullan on 23 December 2020:

“The discloser made a range of allegations concerning the recruitment practices of the FCA, broadly being that the following recruitment processes were not properly gazetted nor properly undertaken:

a. engagements of Susan O’Connor, Claire Gitsham, Matthew Benter, Phillip Allaway, Rupert Burns and Tuan Van Le as National Judicial Registrars in the FCA;
b. engagements of Murray Belcher and Russell Trott as National Judicial Registrars and District Registrars in the FCA; and
c. engagements of Rohan Muscat and Caitlin Wu to National Registrar positions in the FCA …

Following my review of the evidence provided … I was satisfied that the allegations of disclosable conduct concerning each of the recruitment processes was not substantiated, except in relation to the promotion of Ms Wu to a National Registrar position …

Promotion of Caitlin Wu

Allegations

The disclosure alleged that, on 5 December 2016, Ms Caitlin Wu was promoted into the position of National Court Framework Registrar, for which she did not hold the advertised essential role requirement of being admitted as a practitioner of the High Court or the Supreme Court of a State or Territory of Australia.

Relevant evidence

Vacancy notice 10690165, as provided by you, listed 'admission as a practitioner of the High Court or the Supreme Court of a State or Territory of Australia' as an essential role requirement for the advertised position.

According to materials provided by Ms Wu in support of her application for the position and your further evidence, Ms Wu did not have, and was not eligible to hold, a practicing certificate when appointed to the position.

Eligibility for admission was not addressed in the selection report, nor in the letter of offer to Ms Wu …

Relevant legislation

Section 10A of the Public Service Act 1999 (PS Act) sets out the APS Employment Principles. Relevantly, paragraph 10A(l)(c) of the PS Act recognises that the APS is a career-based public service that makes decisions relating to engagement and promotion that are based on merit. For the purposes of paragraph 10A(l)(c) of the PS Act, subsection 10A(2) of the PS Act sets out the circumstances in which a decision relating to engagement or promotion is based on merit.

Adverse findings concerning the recruitment processes of the FCA

On the basis of the relevant evidence I have considered, I have found on the balance of probabilities that Ms Wu did not hold an essential qualification for the position and that no reasonable efforts were made throughout the selection process to determine whether she was eligible to be admitted to practice.

I therefore have found on the balance of probabilities that the recruitment process that ultimately led to the FCA promoting Ms Wu into this position did not have comply with the APS Employment Principles under subsection 10A(2) of the PS Act in one or more the following respects:

a. All eligible members of the community were not given a reasonable opportunity to apply to perform the relevant duties, because if admission as a legal practitioner was not essential for performance of the role, listing it as an essential requirement in the advertisement may have precluded other members of the community with the same qualifications as Ms Wu from applying for the position.

b. An assessment was not made of the relative suitability of the candidates to perform the relevant duties, using a competitive selection process, because admission as a legal practitioner is listed as essential for performance of the role, but does not appear to have been considered as part of the selection process.

c. The assessment was not based on the relationship between the candidates' work-related qualities and the work-related qualities genuinely required to perform the relevant duties, because admission as a legal practitioner was listed as essential for performance of the role, i.e. as a work-related quality genuinely required to perform the relevant duties. Ms Wu did not have this work-related quality, and was selected over a field of candidates all of whom did have this work-related quality.

d. The assessment did not focus on the relative capacity of the candidates to achieve outcomes related to the relevant duties, because The position description notes that the position 'requires the occupant to perform statutory legal functions ... therefore, legal qualifications and admission as a practitioner ... is essential'. Ms Wu was not admitted as a legal practitioner but was selected over a field of candidates all of whom were admitted as legal practitioners …

I also found that the relevant employment practices of the FCA were therefore in contravention of section 10A of the PS Act, and that disclosable conduct, within the meaning of item 1 of the table in subsection 29(1) of the PID Act, had therefore been engaged in by the FCA on the basis that the relevant employment practice of the FCA in relation to the engagement of Ms Wu was conducted in contravention of the PS Act, being a Commonwealth law …

Recommendations

In response to my adverse findings concerning the recruitment practices of the FCA, I recommend:

a. that staff at the FCA be provided with guidance and/or training about the APS Employment Principles prior to undertaking any recruitment action, to prevent further incidents of this nature; and

b. relevant FCA staff familiarise themselves with the APS Code of Conduct, and in particular paragraph 13(11)(a) of the PS Act, which states, relevantly, that employees must at all times behave in a way that upholds the APS Employment Principles.”

On 26 October 2021, a complaint was made to the Office of the Commonwealth Ombudsman. The complaint related to the way a public interest disclosure investigation had been conducted by Kate McMullan of the Australian Public Service Commission. Part of the complaint related to Kate McMullan’s failure to abide by her statutory duty under section 53(5)(b) of the Public Interest Disclosure Act 2013 (Cth).

Section 53(5)(b) of the Public Interest Disclosure Act 2013 (Cth) provides:

to the extent that the investigation relates to an alleged breach of the Code of Conduct (within the meaning of the Public Service Act 1999 (Cth), the principal officer MUST comply with procedures established under subsection 15(3) of the Act.

The relevant part of the complaint made to the Office of the Commonwealth Ombudsman on 26 October 2021 reads:

“Section 53 of the PID Act sets out the manner in which investigations under Part 3, Division 2 of the PID Act are to be conducted.

Subsection 53(1) of the PID Act is as follows:

An investigation under this Division by the principal officer of an agency is to be conducted as the person thinks fit.

Subsection 53(2) of the PID Act is as follows:

The principal officer may, for the purposes of the investigation, obtain information from such persons, and make such inquiries, as the principal officer thinks fit.

Paragraph 53(5)(b) of the PID Act is as follows:

Despite subsections (1) and (2) to the extent that the investigation relates to an alleged breach of the Code of Conduct (within the meaning of the Public Service Act 1999), the principal officer must comply with the procedures established under subsection 15(3) of that Act.

In the context of the internal disclosure investigated by Ms McMullan, the principal officer would be a reference to the Australian Public Service Commissioner, the principal officer of the APSC. It is beyond question that the investigation conducted by Ms McMullan related to alleged breaches of the Code of Conduct by Ms Lagos, Ms Pringle and Ms Jarratt. Accordingly, Ms McMullan was obligated to investigate those alleged breaches according to procedures established by the Australian Public Service Commissioner.

I downloaded a copy of the procedures to investigate alleged breaches of the Code of Conduct established by the Australian Public Service Commissioner on 30 December 2020 [see Annexure EDR - 56]. I shall refer to the procedures to investigate alleged breaches of the Code of Conduct established by the Australian Public Service Commissioner as the Code of Conduct procedures. It will be noted that the Code of Conduct procedures were last reviewed on 19 September 2019 [see Annexure EDR - 56], and, as such, were extant at the time of the investigation, being 11 May 2020 to 9 December 2020.

Paragraph 3 of the Code of Conduct procedures reads as follows:

As soon as practicable after a suspected breach of the Code has been identified and the Australian Public Service Commissioner, or a person authorised by the Commissioner, has decided to deal with the suspected breach under these procedures, the Commissioner or that person will appoint a decision-maker to make a determination under these procedures.

Paragraph 4 of the Code of Conduct procedures reads as follows:

The role of the breach decision-maker is to determine in writing whether a breach of the Code has occurred.

Paragraph 5 of the Code of Conduct procedures reads as follows:

The breach decision-maker may undertake the investigation, or seek the assistance of an investigator. The investigator may investigate the alleged breach, gather evidence and make a report of recommended findings of fact to the breach decision-maker.

Paragraph 6 of the Code of Conduct procedures reads as follows:

The person who is to decide what, if any, sanction is to be imposed on an APS employee who is found to have breached the Code will be a person holding a delegation of the powers under the Act to impose sanctions.

Paragraph 7 of the Code of Conduct procedures reads as follows:

These procedures do not prevent the breach decision-maker from being the sanction delegate in the same matter.

Paragraph 12 of the Code of Conduct procedures reads as follows:

A determination may not be made in relation to a suspected breach of the Code by a person unless reasonable steps have been taken to:

(a) inform the person of:

(i) the details of the suspected breach of the Code, including any subsequent variation of those details; and
(ii) where the person is an APS employee, the sanctions that may be imposed on them under subsection 15 (1) of the Act; and

(b) give the person a reasonable opportunity to make a statement in relation to the suspected breach.

Paragraph 17 of the Code of Conduct procedures reads as follows:

If a determination is made that an APS employee in the Commission has breached the Code, a sanction may not be imposed on the employee unless reasonable steps have been taken to:

(a) inform the employee of:

(i) the determination that has been made; and
(ii) the sanction or sanctions that are under consideration; and
(iii) the factors that are under consideration in determining any sanction to be imposed; and

(b) give the employee a reasonable opportunity to make a statement in relation to the sanction or sanctions under consideration.

Paragraph 19 of the Code of Conduct procedures reads as follows:

If a determination is made in relation to a suspected breach of the Code by a person who is, or was, an APS employee in the Commission, a written record must be made of:

(a) the suspected breach; and

(b) the determination; and

(c) any sanctions imposed as a result of a determination that the employee has breached the Code; and

(d) if a statement of reasons was given to the person regarding the determination in relation to suspected breach of the Code, or, in the case of an employee, regarding the sanction decision, that statement of reasons or those statements of reasons.

In part 4.1 of this report, I set out my views on the quality of the catalogue of materials that I had identified. Importantly, a thorough and, in my opinion, near complete catalogue of correspondence has been reproduced. There is nothing in the correspondence between Ms McMullan and Ms Lagos to suggest that, pursuant to paragraph 12 of the Code of Conduct procedures, Ms Lagos, Mr Pringle or Ms Jarratt were informed of the details of the suspected breach of the Code of Conduct (as has been explained, Ms McMullan concluded that something, rather than persons, had contravened the Code of Conduct for behaving in a way that did not uphold the APS Employment Principles), or the possible sanctions that may have been imposed on them.

There is nothing in the correspondence between Ms McMullan and Ms Lagos to suggest that, pursuant to paragraph 17 of the Code of Conduct procedures, Ms Lagos, Mr Pringle or Ms Jarratt were informed that a determination had been made that the Code of Conduct had been contravened by them, what sanctions were under consideration for the contraventions, and what factors were under consideration in determining any sanctions to be imposed.

There is nothing in the correspondence between Ms McMullan and Ms Lagos to suggest that, pursuant to paragraph 19 of the Code of Conduct procedures, a written record was made of the contravention or the determination in respect of that contravention of the Code of Conduct or sanctions imposed as a result of the determination in respect of that contravention of the Code of Conduct, and that statements of reasons were provided to Ms Lagos, Mr Pringle or Ms Jarratt in relation to the contravention of the Code of the Conduct.

As such, it is most unlikely that the investigation conducted by Ms McMullan was conducted according to paragraph 53(5)(b) of the PID Act and was, thus, unlawful in that respect.”

According to a decision letter Mark Anstey, an acting assistant director in the Office of the Commonwealth Ombudsman issued on 12 December 2022,

“I acknowledge your dissatisfaction with the s 51 report. I agree it lacked one key feature our Office expects a s 51 report to contain … in our view, principles of good administration and the PID Standard require the summary of evidence in the report include a discussion of the content of the evidence obtained, the investigator’s assessment of that evidence (for example, whether it is credible, consistent and compelling) and how the evidence shaped the investigator’s conclusions. We will provide feedback to the Investigating Agency on this point.”

Clearly, the investigating officer in the Office of the Commonwealth Ombudsman believed Kate McMullan’s investigation report was inadequate in as much as Kate McMullan contravened her duty, under section 13 of the Public Interest Disclosure Standard 2013 (Cth) to:

*  identify any regulations, rules, administrative requirements or similar matters to which the disclosable conduct relates; and
*  explain the steps taken to gather evidence; and
* set out a summary of the evidence, as well as any findings and recommendations made based on that evidence.

Thus, Kate McMullan contravened an essential requirement relating to the production of a public interest disclosure report.

Curiously, Mark Anstey does not explicitly address the complaint about Kate McMullan’s failure to comply with the mandatory requirements in section 53(5)(b) of the Public Interest Disclosure Act 2013 (Cth).

It has been established that the public interest disclosure investigation conducted by Kate McMullan was an investigation into allegations of contraventions by public officials in the Federal Court of Australia Statutory Agency of the Code of Conduct contained in the Public Service Act 1999 (Cth). That is apparent on the face of the allocation document that Elizabeth Bennet of the Office of the Commonwealth Ombudsman sent to Peter Woolcott, the Australian Public Service Commissioner on 11 May 2020.

Elizabeth Bennet’s letter (https://www.righttoknow.org.au/request/d...) reads:

“Dear Mr Woolcott

Notification of allocation – section 44(1) of the Public Interest Disclosure Act 2013

I am writing to notify you of our decision to allocate an internal public interest disclosure to the Australian Public Service Commission (APSC) for handling under the Public Interest Disclosure Act 2013 (the PID Act).

On 7 May 2020, an Authorised Officer of the APSC consented to the allocation.

Please note that the information below is based solely on that provided by the discloser and was assessed by this Office under section 26 of the PID Act as an internal public interest disclosure.

It is the responsibility of your agency to determine how this matter will be handled from this point. However we note that this allocation decision has been made with reference to the broad powers available to consider the matter by virtue of an allocation under the PID Act and under the Public Service Act 1999 (PS Act) (in particular s 41(2)(o)) …

Suspected disclosable conduct identified

The allegations generally relate to registrar recruitment processes and decisions at the Federal Court Statutory Agency (FCSA). The brief summary below is not intended to be relied upon as a full account of the disclosure …”

According to the selection report for the vacancy that Ms Wu was selected for promotion to (refer to PA2925-06/34 on the Federal Court of Australia’s FOI disclosure log – www.fedcourt.gov.au/disclosurelog), Sia Lagos, the current CEO of the Federal Court, David Pringle, the current CEO of the Federal Circuit and Family Court, and Andrea Jarratt were the members of the selection panel that selected Ms Wu.

Sia Lagos, David Pringle and Andrea Jarratt each signed the selection report on 2 December 2016, certifying that they are “aware of the correct policy and procedures for merit selection and certify that these have been followed” (refer to PA2925-06/34 on the Federal Court of Australia’s FOI disclosure log – www.fedcourt.gov.au/disclosurelog).

Sia Lagos, as the Agency Head’s delegate, endorsed the selection committee’s recommendation to promote Caitlin Wu “over a field of candidates all of whom were admitted as legal practitioners” (to quote Kate McMullan) (refer to PA2925-06/34 on the Federal Court of Australia’s FOI disclosure log – www.fedcourt.gov.au/disclosurelog).

According to the promotion notice published in respect of Ms Wu’s promotion (refer to PA2925-06/25 on the Federal Court of Australia’s FOI disclosure log – www.fedcourt.gov.au/disclosurelog), Caitlin Wu was promoted from an APS4 position to an Executive Level 1 position. The promotion notice was published in Public Service Gazette PS 49/2016.

It is evident that the people responsible for selecting Caitlin Wu for promotion “over a field of candidates all of whom were admitted as legal practitioners” to an Executive Level 1 position were Sia Lagos, David Pringle and Andrea Jarratt.

It is evident that Sia Lagos was responsible endorsing the decision to select Caitlin Wu for promotion “over a field of candidates all of whom were admitted as legal practitioners” to an Executive Level in her capacity as the Agency Head’s delegate.

Thus, it is evident that Sia Lagos, David Pringle and Andrea Jarratt were the APS employees responsible for failing to abide by section 13(11)(a) of the Public Service Act 1999 (Cth) (which is a provision of the Code of Conduct), which provides:

An APS employee must at all times behave in a way that upholds the APS Values and APS Employment Principles.

The APS Employment Principles, which are contained in section 10A of the Public Service Act 1999 (Cth), includes the provision that provides that “decisions relating to engagement and promotion … are based on merit”: Public Service Act 1999 (Cth), s 10A(c). Section 10A(2) elaborates on the meaning of section 10A(c) of the Public Service Act 1999 (Cth).

Section 10A(2) of the Public Service Act 1999 (Cth) provides:

For the purposes of paragraph (1)(c), a decision relating to engagement or promotion is based on merit if:

(a) all eligible members of the community were given a reasonable opportunity to apply to perform the relevant duties; and
(b) an assessment is made of the relative suitability of the candidates to perform the relevant duties, using a competitive selection process; and
(c) the assessment is based on the relationship between the candidates’ work-related qualities and the work-related qualities genuinely required to perform the relevant duties; and
(d) the assessment focuses on the relative capacity of the candidates to achieve outcomes related to the relevant duties; and
(e) the assessment is the primary consideration in making the decision.

Kate McMullan was legally obligated to comply with procedures established under subsection 15(3) of the Public Service Act 1999 (Cth) the extent that her public interest disclosure investigation related to an alleged breach of the Code of Conduct: Public Interest Disclosure Act 2013 (Cth), s 53(5)(b).

The procedures established by the Australian Public Service Commissioner, under subsection 15(3) of the Public Service Act 1999 (Cth), provided as follows:

1. A determination may not be made in relation to a suspected breach of the Code by a person unless reasonable steps have been taken to:

a) inform the person of:

(i) the details of the suspected breach of the Code, including any subsequent variation of those details; and
(ii) where the person is an APS employee, the sanctions that may be imposed on them under subsection 15 (1) of the Act; and

b) give the person a reasonable opportunity to make a statement in relation to the suspected breach.

2. If a determination is made that an APS employee in the Commission has breached the Code, a sanction may not be imposed on the employee unless reasonable steps have been taken to:

a) inform the employee of:

i) the determination that has been made; and
ii) the sanction or sanctions that are under consideration; and
iii) the factors that are under consideration in determining any sanction to be imposed; and

b) give the employee a reasonable opportunity to make a statement in relation to the sanction or sanctions under consideration.

3. If a determination is made in relation to a suspected breach of the Code by a person who is, or was, an APS employee in the Commission, a written record must be made of:

a) the suspected breach; and

b) the determination; and

c) any sanctions imposed as a result of a determination that the employee has breached the Code; and

d) if a statement of reasons was given to the person regarding the determination in relation to suspected breach of the Code, or, in the case of an employee, regarding the sanction decision, that statement of reasons or those statements of reasons.

As noted above, clearly, the investigating officer in the Office of the Commonwealth Ombudsman believed Kate McMullan’s investigation report was inadequate in as much as Kate McMullan contravened her duty, under section 51(3) of the Public Interest Disclosure Act 2013 (Cth) and under section 13 of the Public Interest Disclosure Standard 2013 (Cth), to:

*  identify any regulations, rules, administrative requirements or similar matters to which the disclosable conduct relates; and
*  explain the steps taken to gather evidence; and
* set out a summary of the evidence, as well as any findings and recommendations made based on that evidence.

I have read Mark Anstey’s decision letter of 12 December 2022 very carefully, but have not found any reference to the complaint that Kate McMullan failed to abide by her statutory duty to comply with procedures established under subsection 15(3) of the Public Service Act 1999 (Cth) to the extent that her public interest disclosure investigation related to an alleged breach of the Code of Conduct: Public Interest Disclosure Act 2013 (Cth), s 53(5)(b).

Mark Anstey noted the following in his decision letter of 12 December 2022:

“I refer to your complaint of 26 October 2021 about the handling of a public interest disclosure (PID) by the agency who investigated the PID (the Investigating Agency).

I apologise for the time it has taken to complete our investigation of this matter …

Our investigation is also not a reinvestigation of your disclosure. Rather, our investigation of a complaint of this kind focuses on the actions the agency took to investigate and finalise a PID, and whether those actions met the requirements of the PID Act and the Public Interest Disclosure Standard 2013 (PID Standard).”

Mark Anstey has correctly identified what the nature of his investigation related to under the Ombudsman Act 1976. In investigating the way that Kate McMullan conducted her public interest disclosure investigation, Mark Anstey’s duty was to, among other things, ensure that:

a) in conducting her investigation, Kate McMullan had ensured that the disclosure made by the public official was properly investigated and dealt with (i.e. all reasonable lines of inquiry were followed, natural justice and procedural fairness were afforded to all during the course of the investigation, mandatory statutory requirements in relation to the proper investigation of a public interest disclosure were met): Pblic Interest Disclosure Act 2013 (Cth), s 6(d); and
b) that Kate McMullan made findings of fact on only logically probative evidence (summarised broadly, this is material that tends logically to prove the existence or non‑existence of a fact): Public Interest Disclosure Standard 2013 (Cth), s 12(1); and
c) that Kate McMullan ensured that the evidence relied on in her investigation was relevant (Summarised broadly, this is evidence that is of consequence to a matter under investigation, and makes the existence of a fact more probable or less probable than it would be without the evidence): Public Interest Disclosure Standard 2013 (Cth), s 12(2); and
d) that Kate McMullan met the minimum mandatory statutory duty to comply with procedures established under subsection 15(3) of the Public Service Act 1999 (Cth) (which are minimum standards relating to, among other things, procedural fairness) to the extent that her public interest disclosure investigation related to an alleged breach of the Code of Conduct (which Kate McMullan’s public interest disclosure investigation undoubtedly related to): Public Interest Disclosure Act 2013 (Cth), s 53(5)(b).

In fact, those points are addressed on the Commonwealth Ombudsman’s own website: www.ombudsman.gov.au/complaints/public-i....

According to content on the website, among other things, “officers charged with the responsibility for investigating PIDs should:

* identify and address any possible conflict of interests ...
* ensure their investigation complies with the PID Act (Part 3) and the PID Standards (Part 3) ...
* comply with procedures under s 15(3) of the Public Service Act 1999 or s 15(3) of the Parliamentary Service Act 1999 if investigating alleged breaches of the relevant Code of Conduct ...
* ensure procedural fairness is observed ...
* prepare a written report on the outcome of the investigation (s 51(1) of the PID Act) ...
* ensure appropriate records are made throughout the investigation process ...
* ensure records are appropriately classified and stored so that only officers that are authorised either by the PID Act or another law of the Commonwealth can access the PID information.”

Mark Anstey does not appear to have addressed the complaint about Kate McMullan’s failure to meet her legal obligation under section 53(5)(b) of the Public Interest Disclosure Act 2013 (Cth) as part of his decision report dated 12 December 2022. That would be a glaring failure on Mark Anstey’s part, particularly because the complaint about Kate McMullan’s failure to meet a mandatory statutory requirement was particularised and is emphatically and unambiguously a matter pertaining to the “actions the agency took to investigate and finalise a PID, and whether those actions met the requirements of the PID Act and the Public Interest Disclosure Standard 2013 (PID Standard).”

Given that it has been established, on the evidence, which is publicly available to the world at large, that Sia Lagos, David Pringle and Andrea Jarratt were responsible for deliberately (i.e. after engaging in deliberations about the candidates and certifying that they were each “aware of the correct policy and procedures for merit selection” and that those policies have been followed) selecting Caitlin Wu for promotion “over a field of candidates all of whom were admitted as legal practitioners” to an Executive Level 1 position, it stands to reason that Kate McMullan must have, in furtherance of her legal obligations under section 53(5)(b) of the Public Interest Disclosure Act 2013 (Cth):

a) informed Sia Lagos, David Pringle and Andrea Jarratt of the details of the suspected breach of the Code, including any subsequent variation of those details, and the sanctions that may be imposed on them under subsection 15(1) of the Public Service Act 1999 (Cth);
b) given each of Sia Lagos, David Pringle and Andrea Jarratt give a reasonable opportunity to make a statement in relation to the sanction or sanctions under consideration;
c) informed each of Sia Lagos, David Pringle and Andrea Jarratt that they had contravened section 13(11)(a) of the Public Service Act 1999 (Cth), by which they were obligated to at all times behave in a way that upholds the APS Values and APS Employment Principles;
d) informed each of Sia Lagos, David Pringle and Andrea Jarratt of the sanctions under consideration;
e) informed each of Sia Lagos, David Pringle and Andrea Jarratt of the factors under consideration in determining any sanction to be imposed;
f) given each of Sia Lagos, David Pringle and Andrea Jarratt a reasonable opportunity to make a statement in relation to the sanction or sanctions under consideration;
g) maintained written records of the suspected breaches, the determinations, and any sanction imposed as a result of the determination that the employee had breached the Code (specifically, section 13(11)(a) of the Public Service Act 1999 (Cth), which requires an APS employee to at all times behave in a way that upholds the APS Values and APS Employment Principles), which is amply demonstrated by the evidence in the selection reports when coupled with Kate McMullan’s findings.

Since Mark Anstey does not appear to have addressed an explicit ground of complaint in his record of decision, that must mean that Mark Anstey was satisfied that Kate McMullan had, at least in respect of the decision to deliberately (i.e. after engaging in deliberations about the candidates and certifying that they were each “aware of the correct policy and procedures for merit selection” and that those policies have been followed) promote Caitlin Wu to an Executive Level 1 position “over a field of candidates all of whom were admitted as legal practitioners”, met her legal obligations under section 53(5)(b) of the Public Interest Disclosure Act 2013 (Cth). After all, Mark Anstey does note in his decision letter that “[b]ased on our investigation, which involved seeking copies of internal records from the Investigating Agency and interviewing the PID Investigator, I consider there are several ways in which the PID investigation and associated report could have been improved”, which means that Mark Anstey would have had access to documents prepared by Kate McMullan pursuant to her legal obligations under section 53(5)(b) of the Public Interest Disclosure Act 2013 (Cth) and under standards in force under section 15(3) of the Public Service Act 1999 (Cth).

Of course, if it turns out that none of the documents that I am about to request are in the possession of the Office of the Commonwealth Ombudsman, then Mark Anstey could not have had access to such document and that Mark Anstey has ignored an explicit ground of complaint, which, by his own admission, he was obligated to consider as part of his investigation because his “investigation of a complaint of this kind [i.e. an investigation, under the Ombudsman Act 1976 (Cth), into a complaint about whether Kate McMullan handled the public interest disclosure investigation according to law] focuses on the actions the agency took to investigate and finalise a PID, and whether those actions met the requirements of the PID Act and the Public Interest Disclosure Standard 2013 (PID Standard).”

In the context of the decision to deliberately (i.e. after engaging in deliberations about the candidates and certifying that they were each “aware of the correct policy and procedures for merit selection” and that those policies have been followed) promote Caitlin Wu to an Executive Level 1 position “over a field of candidates all of whom were admitted as legal practitioners”, under the Freedom of Information Act 1982 (Cth), I request access to each of the following documents within the possession of the Office of the Commonwealth Ombudsman:

a) the document informing David Pringle of the details of the suspected breach of the Code, including any subsequent variation of those details, and the sanctions that may be imposed on them under subsection 15(1) of the Public Service Act 1999 (Cth), which would, of course, demonstrate that the complainant’s complaint about Ms McMullan’s failure to conduct her investigation, at least in the context of Caitlin Wu’s promotion, according to section 53(5)(b) of the Public Interest Disclosure Act, and according to the Standards in place under section 15(3) of the Public Service Act 1999 (Cth), was not justified;

b) the document informing Andrea Jarratt of the details of the suspected breach of the Code, including any subsequent variation of those details, and the sanctions that may be imposed on them under subsection 15(1) of the Public Service Act 1999 (Cth), which would, of course, demonstrate that the complainant’s complaint about Ms McMullan’s failure to conduct her investigation, at least in the context of Caitlin Wu’s promotion, according to section 53(5)(b) of the Public Interest Disclosure Act, and according to the Standards in place under section 15(3) of the Public Service Act 1999 (Cth), was not justified;

c) the document setting out information about David Pringle having a reasonable opportunity to make a statement in relation to the sanction or sanctions under consideration, which would, of course, demonstrate that the complainant’s complaint about Ms McMullan’s failure to conduct her investigation, at least in the context of Caitlin Wu’s promotion, according to section 53(5)(b) of the Public Interest Disclosure Act, and according to the Standards in place under section 15(3) of the Public Service Act 1999 (Cth), was not justified;

d) the document setting out information about Andrea Jarratt having a reasonable opportunity to make a statement in relation to the sanction or sanctions under consideration, which would, of course, demonstrate that the complainant’s complaint about Ms McMullan’s failure to conduct her investigation, at least in the context of Caitlin Wu’s promotion, according to section 53(5)(b) of the Public Interest Disclosure Act, and according to the Standards in place under section 15(3) of the Public Service Act 1999 (Cth), was not justified;

e) the document informing David Pringle that he had contravened section 13(11)(a) of the Public Service Act 1999 (Cth), by which they were obligated to at all times behave in a way that upholds the APS Values and APS Employment Principles, which would, of course, demonstrate that the complainant’s complaint about Ms McMullan’s failure to conduct her investigation, at least in the context of Caitlin Wu’s promotion, according to section 53(5)(b) of the Public Interest Disclosure Act, and according to the Standards in place under section 15(3) of the Public Service Act 1999 (Cth), was not justified;

f) the document informing Andrea Jarratt that she had contravened section 13(11)(a) of the Public Service Act 1999 (Cth), by which they were obligated to at all times behave in a way that upholds the APS Values and APS Employment Principles, which would, of course, demonstrate that the complainant’s complaint about Ms McMullan’s failure to conduct her investigation, at least in the context of Caitlin Wu’s promotion, according to section 53(5)(b) of the Public Interest Disclosure Act, and according to the Standards in place under section 15(3) of the Public Service Act 1999 (Cth), was not justified;

g) the document informing David Pringle of the sanctions under consideration, which would, of course, demonstrate that the complainant’s complaint about Ms McMullan’s failure to conduct her investigation, at least in the context of Caitlin Wu’s promotion, according to section 53(5)(b) of the Public Interest Disclosure Act, and according to the Standards in place under section 15(3) of the Public Service Act 1999 (Cth), was not justified;

h) the document informing Andrea Jarratt of the sanctions under consideration, which would, of course, demonstrate that the complainant’s complaint about Ms McMullan’s failure to conduct her investigation, at least in the context of Caitlin Wu’s promotion, according to section 53(5)(b) of the Public Interest Disclosure Act, and according to the Standards in place under section 15(3) of the Public Service Act 1999 (Cth), was not justified;

i) the document informing David Pringle of the factors under consideration in determining any sanction to be imposed, which would, of course, demonstrate that the complainant’s complaint about Ms McMullan’s failure to conduct her investigation, at least in the context of Caitlin Wu’s promotion, according to section 53(5)(b) of the Public Interest Disclosure Act, and according to the Standards in place under section 15(3) of the Public Service Act 1999 (Cth), was not justified;

j) the document informing Andrea Jarratt of the factors under consideration in determining any sanction to be imposed, which would, of course, demonstrate that the complainant’s complaint about Ms McMullan’s failure to conduct her investigation, at least in the context of Caitlin Wu’s promotion, according to section 53(5)(b) of the Public Interest Disclosure Act, and according to the Standards in place under section 15(3) of the Public Service Act 1999 (Cth), was not justified;

k) the document provided to David Pringle giving him a reasonable opportunity to make a statement in relation to the sanction or sanctions under consideration, which would, of course, demonstrate that the complainant’s complaint about Ms McMullan’s failure to conduct her investigation, at least in the context of Caitlin Wu’s promotion, according to section 53(5)(b) of the Public Interest Disclosure Act, and according to the Standards in place under section 15(3) of the Public Service Act 1999 (Cth), was not justified;

l) the document provided to Andrea Jarratt giving her a reasonable opportunity to make a statement in relation to the sanction or sanctions under consideration, which would, of course, demonstrate that the complainant’s complaint about Ms McMullan’s failure to conduct her investigation, at least in the context of Caitlin Wu’s promotion, according to section 53(5)(b) of the Public Interest Disclosure Act, and according to the Standards in place under section 15(3) of the Public Service Act 1999 (Cth), was not justified;

m) written records of the suspected breaches, the determinations, and any sanction imposed as a result of the determination that the David Pringle had breached the Code of Conduct, which would, of course, demonstrate that the complainant’s complaint about Ms McMullan’s failure to conduct her investigation, at least in the context of Caitlin Wu’s promotion, according to section 53(5)(b) of the Public Interest Disclosure Act, and according to the Standards in place under section 15(3) of the Public Service Act 1999 (Cth), was not justified;

n) written records of the suspected breaches, the determinations, and any sanction imposed as a result of the determination that the Andrea Jarratt had breached the Code of Conduct, which would, of course, demonstrate that the complainant’s complaint about Ms McMullan’s failure to conduct her investigation, at least in the context of Caitlin Wu’s promotion, according to section 53(5)(b) of the Public Interest Disclosure Act, and according to the Standards in place under section 15(3) of the Public Service Act 1999 (Cth), was not justified;

o) that part of Mark Anstey’s decision that addresses Ms McMullan’s failures to comply with section 53(5)(b) of the Public Interest Disclosure Act 2013 (Cth) and the standards in place under section 15(3) of the Public Service Act 1999 (Cth);

p) any and all documents in the possession of the Office of the Commonwealth Ombudsman that show that it is legally permissible for an investigating officer in Mark Anstey’s position, who has rightly acknowledged that his duty in the course of his investigation was to, under the Ombudsman Act 1976 (Cth), focus “on the actions the agency took to investigate and finalise a PID, and whether those actions met the requirements of the PID Act and the Public Interest Disclosure Standard 2013 (PID Standard)” to ignore an explicit ground of complaint, particularly where that explicit ground of complaint is about the failure of a public interest disclosure investigator to conduct her investigation according to a mandatory statutory requirement (i.e. the mandatory statutory requirement set out in section 53(5)(b) of the Public Interest Disclosure Act 2013 (Cth)), which, among other things, provides standards of procedural fairness for the relevant investigation;

q) any and all other documents containing logically probative evidence, and relevant evidence, that Mark Anstey relied on to satisfy himself that Kate McMullan had complied, pursuant to section 53(5)(b) of the Public Interest Disclosure Act 2013 (Cth), with her statutory obligation to comply with procedures established under subsection 15(3) of the Public Service Act 1999 (Cth) when conducting her public interest disclosure investigation into allegations that officials, including Sia Lagos, David Pringle and Andrea Jarratt, had contravened their duties, under section 13(11)(a) of the Public Service Act 1999 (Cth) to at all times behave in a way that upholds the APS Values and APS Employment Principles (which means behaving in a way that upholds section 10A of the Public Service Act 1999 (Cth)).

Please ensure that you address each paragraph of my FOI request discretely. For example, please address paragraph (a) by noting that the document:

i) will be granted access to in full; or
ii) will be granted access to in part; or
iii) will not be granted access to,

and if the document will be granted access to in part, or not at all, please provide reasons, in accordance with the Freedom of Information Act 1982 (Cth) as to why such a decision has been made in respect of the requested document in paragraph (a).

The requested documents may be provided to me by return email.

Yours faithfully,

Ray B1