Materials relating to the selection of Phillip Allaway, Matthew Benter, Rupert Burns, Claire Gitsham, Susan O'Connor, David Ryan and Tuan Van Le as National Judicial Registrars

The request was refused by Federal Court of Australia.

Dear Federal Court of Australia,

I refer to an article published in the Australian newspaper on 9 February 2022 (Federal Court boss warned on job rule sidestep). The allegations set out in that article - specifically that senior figures in the management of the Federal Court assigned "Legal 2" (i.e. Executive Level 2) classifications to registrars to cheat the number of capped SES positions available to the Federal Court Statutory Agency - inform the context of this FOI request.

According to page 130 of the Federal Court's 2018-2019 annual report, Phillip Allaway, Matthew Benter, Rupert Burns, Claire Gitsham and Susan O'Connor were National Judicial Registrars of the Federal Court.

According to page 126 of the Federal Court's 2019-2020 annual report, Phillip Allaway, Matthew Benter, Rupert Burns, Claire Gitsham, Susan O'Connor, David Ryan and Tuan Van Le were National Judicial Registrars of the Federal Court.

According to page 127 of the Federal Court's 2020-2021 annual report, Phillip Allaway, Matthew Benter, Rupert Burns, Claire Gitsham, Susan O'Connor, David Ryan and Tuan Van Le were National Judicial Registrars of the Federal Court.

Phillip Allaway, Matthew Benter, Rupert Burns, Claire Gitsham, Susan O'Connor are still listed as National Judicial Registrar on the Federal Court's website: https://fedcourt.gov.au/about/registrars...

The Federal Court's annual reports can be accessed here: https://fedcourt.gov.au/digital-law-libr...

Clearly Phillip Allaway, Matthew Benter, Rupert Burns, Claire Gitsham, Susan O'Connor, David Ryan and Tuan Van Le were all successful candidates for the National Judicial Registrar roles in the Federal Court.

Under the FOI Act I request access to the following documents:

1. Vacancy notifications published in the Public Service Gazette or elsewhere

a) the vacancy notification for the National Judicial Registrar role that Phillip Allaway applied for and was selected to fill;
b) the vacancy notification for the National Judicial Registrar role that Matthew Benter applied for and was selected to fill;
c) the vacancy notification for the National Judicial Registrar role that Rupert Burns applied for and was selected to fill;
d) the vacancy notification for the National Judicial Registrar role that Claire Gitsham applied for and was selected to fill;
e) the vacancy notification for the National Judicial Registrar role that Susan O'Connor applied for and was selected to fill;
f) the vacancy notification for the National Judicial Registrar role that David Ryan applied for and was selected to fill;
g) the vacancy notification for the National Judicial Registrar role that Tuan Van Le applied for and was selected to fill.

2. Classification evaluations for the National Judicial Registrar roles

a) the classification evaluation for the National Judicial Registrar role that Phillip Allaway applied for and was selected to fill;
b) the classification evaluation for the National Judicial Registrar role that Matthew Benter applied for and was selected to fill;
c) the classification evaluation for the National Judicial Registrar role that Rupert Burns applied for and was selected to fill;
d) the classification evaluation for the National Judicial Registrar role that Claire Gitsham applied for and was selected to fill;
e) the classification evaluation for the National Judicial Registrar role that Susan O'Connor applied for and was selected to fill;
f) the classification evaluation for the National Judicial Registrar role that David Ryan applied for and was selected to fill;
g) the classification evaluation for the National Judicial Registrar role that Tuan Van Le applied for and was selected to fill.

3. Job applications submitted for the National Judicial Registrar roles

a) the job application submitted for the National Judicial Registrar role that Phillip Allaway was selected to fill;
b) the job application submitted for the National Judicial Registrar role that Matthew Benter was selected to fill;
c) the job application submitted for the National Judicial Registrar role that Rupert Burns was selected to fill;
d) the job application submitted for the National Judicial Registrar role that Claire Gitsham was selected to fill;
e) the job application submitted for the National Judicial Registrar role that Susan O'Connor was selected to fill;
f) the job application submitted for the National Judicial Registrar role that David Ryan was selected to fill;
g) the job application submitted for the National Judicial Registrar role that Tuan Van Le was selected to fill.

In relation to the job applications, I invite you redact the email addresses, telephone numbers, dates of birth, residential and postal addresses and any signatures contained in the job applications.

Do not redact answers to questions posed as part of the applications process, details of the National Judicial Registrars' professional experience, accreditation, education, dates and timestamps recorded of the job applications and other substantive matter.

4. Selection reports of the selection committees that selected the successful applicants

a) the selection committee's selection report in relation to the National Judicial Registrar role that Phillip Allaway applied for and was selected to fill;
b) the selection committee's selection report in relation to the National Judicial Registrar role that Matthew Benter applied for and was selected to fill;
c) the selection committee's selection report in relation to the National Judicial Registrar role that Rupert Burns applied for and was selected to fill;
d) the selection committee's selection report in relation to the National Judicial Registrar role that Claire Gitsham applied for and was selected to fill;
e) the selection committee's selection report in relation to the National Judicial Registrar role that Susan O'Connor applied for and was selected to fill;
f) the selection committee's selection report in relation to the National Judicial Registrar role that David Ryan applied for and was selected to fill;
g) the selection committee's selection report in relation to the National Judicial Registrar role that Tuan Van Le applied for and was selected to fill.

In relation to the selection reports, you are invited to redact:

a) the names of unsuccessful candidates;
b) deliberative content about the unsuccessful candidates and their applications;
c) deliberative content about the successful candidates and their applications.

Please do not redact:

a) the classifications of the roles the successful candidates were selected to fill;
b) the names and titles of the members of the selection committees;
c) date information on the selection reports;
d) the names of the successful applicants on the selection reports (i.e. Phillip Allaway, Matthew Benter, Rupert Burns, Claire Gitsham, Susan O'Connor, David Ryan and Tuan Van Le);
e) to the extent that the selection committees were constituted by Sia Lagos or David Pringle, the signatures that Sia Lagos and David Pringle applied to the selection reports.

5. Australian Public Service Commissioner's representative's certification

a) the Australian Public Service Commissioner's representative's certification in relation to the SES Band 1 National Judicial Registrar selection process that saw Ms Susan O'Connor selected as an ongoing, full-time SES Band 1 National Judicial Registrar on 19 November 2018 (as to which, please refer to "category D" of the document associated with request to of PA2925-06/9 on the disclosure log of the Federal Court: see https://fedcourt.gov.au/disclosurelog).

Yours faithfully,

Aiofe

External FOI, Federal Court of Australia

1 Attachment

OFFICIAL
Dear Sir/Madam

Please find attached correspondence from the Federal Court of Australia.

Kind regards

FOI Officer
Federal Court of Australia

show quoted sections

External FOI, Federal Court of Australia

1 Attachment

OFFICIAL
Dear Sir/Madam

Please find attached correspondence from the Federal Court of Australia.

Kind regards

FOI Officer
Federal Court of Australia

show quoted sections

Dear Registrar Hammerton Cole,

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

I am writing to request a complete internal review of Federal Court of Australia's handling of my FOI request 'Materials relating to the selection of Phillip Allaway, Matthew Benter, Rupert Burns, Claire Gitsham, Susan O'Connor, David Ryan and Tuan Van Le as National Judicial Registrars'.

PARAGRAPH 1

In response to my request in paragraph 1, you state that the following documents were found and granted access to:

Gazette Notice – Senior National Judicial Registrar;
Gazette Notice – National Judicial Registrar & District Registrar;
Gazette Notice – Judicial Registrar;
Gazette Notice – Deputy District Registrar.

You are mistaken in stating that those documents address paragraph 1 of my FOI request.

Gazette Notice – Senior National Judicial Registrar

The Senior National Judicial Registrar Gazette Notice is for an SES Band 2 role. According to positions descriptions for the National Judicial Registrar roles, the National Judicial Registrar roles are classified at the EL2 and SES1 classifications (see PA2925-06/40 on the Federal Court’s disclosure log). By definition, it is impossible for a vacancy notice for an SES Band 2 Senior National Judicial Registrar to address paragraph 1 of my FOI request because not one of:

Phillip Allaway;
Matthew Benter;
Rupert Burns;
Claire Gitsham;
Susan O’Connor;
David Ryan;
Tuan Van Le,

could have been selected to fill an SES Band 2 role if they were selected to fill National Judicial Registrar roles that had been classified at the EL2 or SES1 classifications.

Therefore, your claim that the Gazette Notice – Senior National Judicial Registrar addresses paragraph 1 of my request is false.

Gazette Notice – National Judicial Registrar & District Registrar

The Gazette Notice for the National Judicial Registrar & District Registrar role is not be a document that responds to paragraph 1 of my FOI request.

In paragraph 1 of my FOI request, I requested access to:

a) the vacancy notification for the National Judicial Registrar role that Phillip Allaway applied for and was selected to fill;
b) the vacancy notification for the National Judicial Registrar role that Matthew Benter applied for and was selected to fill;
c) the vacancy notification for the National Judicial Registrar role that Rupert Burns applied for and was selected to fill;
d) the vacancy notification for the National Judicial Registrar role that Claire Gitsham applied for and was selected to fill;
e) the vacancy notification for the National Judicial Registrar role that Susan O'Connor applied for and was selected to fill;
f) the vacancy notification for the National Judicial Registrar role that David Ryan applied for and was selected to fill;
g) the vacancy notification for the National Judicial Registrar role that Tuan Van Le applied for and was selected to fill.

I will analyse the sub-paragraphs.

In order to respond to the sub-paragraphs in paragraph 1, the vacancy notification would have to be a vacancy notification for a National Judicial Registrar role:

a) that a named person APPLIED FOR; AND
b) that a named person was SELECTED TO FILL.

First, the vacancy notification is not for a National Judicial Registrar role. It is for an SES1 National Judicial Registrar & District Registrar role. The only person among the identified people who was allocated an SES1 classification under rule 6 of the Public Service Classification Rules 2000 was Susan O’Connor (see page 4 of document “Request 2” - PA2925-06/09 on the Federal Court’s disclosure log). The others named above do not appear to be SES employees.

Second, the Gazette Notice for the National Judicial Registrar & District Registrar relates to three SES1 National Judicial Registrar & District Registrar position in Melbourne, Perth and Brisbane.

Tim Luxton was SELECTED TO FILL the National Judicial Registrar & District Registrar role in Melbourne – see Promotion Notice N.N. 10736921, published in Gazette PS43 of 2018. The promotion notice provides that Tim Luxton was promoted from an EL2 Deputy District Registrar role in the Federal Court of Australia to an SES1 National Judicial Registrar & District Registrar role in the Federal Court of Australia, and that the promotion is in response to the same National Judicial Registrar & District Registrar Gazette Notice that you say responds to paragraph 1 of my FOI request – Vacancy N.N. 10725159, published in Gazette PS19 of 2018.

Russell Trott was SELECTED TO FILL the National Judicial Registrar & District Registrar role in Perth – see https://www.righttoknow.org.au/request/d... https://www.righttoknow.org.au/request/d... and PA2925-06/48: Selection Report – NJR DR WA.

Murray Belcher was SELECTED TO FILL the National Judicial Registrar & District Registrar role in Brisbane – see https://www.righttoknow.org.au/request/d... https://www.righttoknow.org.au/request/d...
https://www.righttoknow.org.au/request/d... and PA2925-06/48: Selection Report – NJR DR Qld.

Since:

a) the three National Judicial Registrar & District Registrar positions were filled by people other than the named people in paragraph 1 of my FOI request; and
b) not one of the persons named in paragraph 1 of my FOI request was SELECTED TO FILL the National Judicial Registrar & District Registrar positions set out in the Gazette Notice for the National Judicial Registrar & District Registrar positions (i.e. Vacancy N.N. 10725159); and
c) the Gazette Notice granted access to is for a role other than the SES1 National Judicial Registrar role; and
d) the Gazette Notice granted access to is for a role other than the EL2 National Judicial Registrar role,

it follows that the Gazette Notice for the National Judicial Registrar & District Registrar positions does not address paragraph 1 of my FOI request.

Therefore, your claim that the Gazette Notice – National Judicial Registrar & District Registrar addresses paragraph 1 of my request is false.

Gazette Notice – Judicial Registrar

The Gazette Notice for the Judicial Registrar role is not be a document that responds to paragraph 1 of my FOI request.

According to the position descriptions for the SES1 National Judicial Registrar role and the EL2 National Judicial Registrar role (see PA2925-06/40 on the Federal Court’s disclosure log), among other things, National Judicial Registrars are responsible for supporting and mentoring Judicial Registrars (i.e. the very registrars that the Gazette Notice – Judicial Registrar is about), whom they outrank. It is clear that National Judicial Registrars, whether they are EL2 National Judicial Registrars or SES1 National Judicial Registrars cannot be identified with “Judicial Registrars”. Accordingly, the Gazette Notice for the Judicial Registrar role is not be a document that responds to paragraph 1 of my FOI request.

Therefore, your claim that the Gazette Notice – Judicial Registrar addresses paragraph 1 of my request is false.

Gazette Notice – Deputy District Registrar

The Gazette Notice for the Deputy District Registrar role is not be a document that responds to paragraph 1 of my FOI request.

There is a very helpful summary of facts about that particular Gazette Notice on the Right to Know website: https://www.righttoknow.org.au/request/d...

That summary of facts is replicated below:

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 for 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 have been, 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)).

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 in the Federal Court, on the grounds that such evaluation documents 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. Furthermore, 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). According to the positions descriptions, the nature of the legal work performed by National Judicial Registrars appears to be of a relatively "complex" nature of the legal work when those duties are compared to the duties that Judicial Registrars handle.

It is, thus, clear that the Gazette Notice for the Deputy District Registrar role is not a Gazette Notice for a National Judicial Registrar role that David Ryan applied for and were selected to fill. Indeed, the Gazette Notice for the Deputy District Registrar role is not a Gazette Notice for the National Judicial Registrar roles that any one of:

Phillip Allaway;
Matthew Benter;
Rupert Burns;
Claire Gitsham;
Susan O’Connor;
David Ryan;
Tuan Van Le,

APPLIED TO FILL and were SELECTED TO FILL.

Plainly, the Gazette Notice for the Deputy District Registrar role does not address paragraph 1 of my FOI request and, thus, your claim that the Gazette Notice – Deputy District Registrar addresses paragraph 1 of my request is false.

I also note an internal review decision of National Judicial Registrar and District Registrar Colbran – https://www.righttoknow.org.au/request/p....

Requests were made for:

a) the vacancy notice for the National Judicial Registrar role, published in the Public Service Gazette or elsewhere, that Claire Gitsham applied for and succeeded in being selected to fill; and
b) the vacancy notice for the National Judicial Registrar role, published in the Public Service Gazette or elsewhere, that Matthew Benter applied for and succeeded in being selected to fill.

Much like the decision Registrar Hammerton Cole has now made, Registrar Hammerton Cole made an original FOI decision claiming that both the “Gazette Notice – National Judicial Registrar & District Registrar” and “Gazette Notice – Judicial Registrar” were the relevant vacancy notices – https://www.righttoknow.org.au/request/p....

An internal review request was lodged by the access applicant – https://www.righttoknow.org.au/request/p....

In response to the internal review request, National Judicial Registrar and District Registrar Colbran made the following finding:

I have reviewed the decision of 6 June 2022 in relation to the documents described in items (a) to (f) of the FOI request. That decision identified documents within the scope of your request. However, I am of the view that the documents identified are not within scope. I am satisfied that all reasonable steps have been taken to find the documents you have requested, but the documents cannot be found or do not exist (see s 24A(1) of the FOI Act). I therefore refuse your access request.

(see https://www.righttoknow.org.au/request/p...)

I have pored over the Public Service Gazette and have not found such vacancy notifications.

It follows that the vacancy notifications for the National Judicial Registrar roles that Claire Gitsham and Matthew Benter applied for do not exist.

For the reasons set out above, the documents you have granted access to do not address the terms of paragraph 1 of my FOI request.

I request a complete review of Registrar Hammerton Cole’s decision in that regard.

PARAGRAPH 2

I am not prepared to believe that there are no documents that meet the terms of paragraph 2 of my request.

According to the Australian Public Service Classification Guide:

Thorough information and documentation procedures relating to classification decisions are necessary elements in safeguarding the integrity of the process. A decision to allocate a new or revised classification level to a job is made under delegated authority under the Public Service Act 1999 and the Public Service Classification Rules 2000. This means a record of the decision must be made, including the reasons for the decision.
Somebody must have documented the decision to classify the National Judicial Registrar roles at the EL2 and SES1 classifications under rule 9 of the Public Service Classification Rules 2000.

It is important for those documents to exist because acting assistant commissioner Kate McMullan made a finding that that allegations of impropriety and unlawful conduct in the context of the recruitment of National Judicial Registrars were unsubstantiated 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 work load.” Without the classification evaluation documents setting out that the National Judicial Registrar role could bear 2 classifications, one of which was the SES1 classification, “depending on the relative complexity and work load”, then there would be a very serious problem in the investigation – namely, that a material finding of fact is not supported by the only documents that could support such a finding of fact.

Please search again for those document.

PARAGRAPH 3

Registrar Hammerton Cole has claimed that the conditional exemptions set out in ss 47E (c) and (d) apply to the documents requested under paragraph 3 of my FOI request. For the reasons set out in Re Dyki and Federal Commissioner of Taxation (1991) 22 ALD 124, the registrar is wrong and her reasons for refusing access to the requested documents on those conditional exemptions are wrong.

I also challenge the public interest test she has applied to refusing access to those documents on the basis of the conditional exemptions set out in s 47C and s 47F of the FOI Act.

I request a complete review of Registrar Hammerton Cole’s decision in respect of what I requested in paragraph 3 of my FOI request.

PARAGRAPH 4

According to Registrar Hammerton Cole, the following documents address the terms of paragraph 4 of my FOI request:

a) Selection Report – Senior National Judicial Registrar;
b) Selection Report – National Judicial Registrar & District Registrar - WA;
c) Selection Report – National Judicial Registrar & District Registrar - VIC; and
d) Selection Report – Judicial Registrar – FCC.

Those documents do not address the terms of paragraph 4 of my FOI request.

In paragraph 4 of my FOI request, I requested:

a) the selection committee's selection report in relation to the National Judicial Registrar role that Phillip Allaway applied for and was selected to fill;
b) the selection committee's selection report in relation to the National Judicial Registrar role that Matthew Benter applied for and was selected to fill;
c) the selection committee's selection report in relation to the National Judicial Registrar role that Rupert Burns applied for and was selected to fill;
d) the selection committee's selection report in relation to the National Judicial Registrar role that Claire Gitsham applied for and was selected to fill;
e) the selection committee's selection report in relation to the National Judicial Registrar role that Susan O'Connor applied for and was selected to fill;
f) the selection committee's selection report in relation to the National Judicial Registrar role that David Ryan applied for and was selected to fill;
g) the selection committee's selection report in relation to the National Judicial Registrar role that Tuan Van Le applied for and was selected to fill.

First, aside from the fact that the role bears a different name, the selection report for the Senior National Judicial Registrar role, which bears a classification of SES 2, cannot be a selection report for National Judicial Registrar roles that, as has been demonstrated, bear SES1 and EL2 classifications.

Second, as has already been demonstrated, Russell Trott APPLIED FOR and was SELECTED TO FILL the National Judicial Registrar & District Registrar – WA role. It therefore follows that not one of:

Phillip Allaway;
Matthew Benter;
Rupert Burns;
Claire Gitsham;
Susan O’Connor;
David Ryan;
Tuan Van Le,

both APPLIED FOR and was SELECTED TO FILL the National Judicial Registrar & District Registrar – WA role. Accordingly, the selection document for the National Judicial Registrar & District Registrar – WA role does not address paragraph 4 of my FOI request.

Third, as has already been demonstrated, Tim Luxton APPLIED FOR and was SELECTED TO FILL the National Judicial Registrar & District Registrar – VIC role. It therefore follows that not one of:

Phillip Allaway;
Matthew Benter;
Rupert Burns;
Claire Gitsham;
Susan O’Connor;
David Ryan;
Tuan Van Le,

both APPLIED FOR and was SELECTED TO FILL the National Judicial Registrar & District Registrar – VIC role. Accordingly, the selection document for the National Judicial Registrar & District Registrar – VIC role does not address paragraph 4 of my FOI request.

Fourth, aside from the fact that the role bears a different name, the selection report for the Judicial Registrar – FCC role cannot be a selection report for National Judicial Registrar roles in the Federal Court because the Judicial Registrar – FCC role is a role relating to the selection of a person to fill a registrar role in former Federal Circuit Court of Australia (the FCC).

Accordingly, not one of the documents identified by Registrar Hammerton Cole addresses the terms of paragraph 4 of my FOI request.

It follows that the reasons provided in support of Registrar Hammerton Cole's decision to refuse access to the documents that do not address the terms of paragraph 4 of my FOI request, and are irrelevant and pointless palaver.

I request a complete review of Registrar Hammerton Cole’s decision in respect of paragraph 4 of my FOI request.

PARAGRAPH 5

According to Registrar Hammerton Cole, the following document addresses the terms of paragraph 5 of my FOI request:

Commissioner’s Representative Certificate – Senior National Judicial Registrar.

That document does not address the terms of paragraph 5 of my FOI request.

I requested:

the Australian Public Service Commissioner's representative's certification in relation to the SES Band 1 National Judicial Registrar selection process that saw Ms Susan O'Connor selected as an ongoing, full-time SES Band 1 National Judicial Registrar on 19 November 2018 (as to which, please refer to "category D" of the document associated with request to of PA2925-06/9 on the disclosure log of the Federal Court: see https://fedcourt.gov.au/disclosurelog).

The “Commissioner’s Representative Certificate – Senior National Judicial Registrar” that Registrar Hammerton Cole has identified relates to a different role (the Senior National Judicial Registrar role), which bears a different classification (SES2). Clearly, the document identified by Ms Hammerton Cole is not the Australian Public Service Commissioner's representative's certification in relation to the SES Band 1 National Judicial Registrar selection process that saw Ms Susan O'Connor selected as an ongoing, full-time SES Band 1 National Judicial Registrar on 19 November 2018.

The “Commissioner’s Representative Certificate – Senior National Judicial Registrar” that Registrar Hammerton Cole has identified as responding to the terms of paragraph 5 of my FOI request is, in fact, not a document that does respond to the terms of paragraph 5 of my FOI request. I request a complete review of Registrar Hammerton Cole’s decision in respect of paragraph 5 of my FOI request.

I note that on 20 February 2022, an access applicant made the following FOI request:

Under the FOI Act 1982 I request access to all certificates issued under section 21(b) of the Australian Public Service Commissioner's Directions 2016, between 1 January 2018 and 31 December 2020, by representatives of the Australian Public Service Commissioner in relation to selection processes for Senior Executive Service vacancies in the Federal Court.

(see https://www.righttoknow.org.au/request/c...)

Registrar Hammerton Cole provided the response to the original FOI request – https://www.righttoknow.org.au/request/c....

The access applicant sought internal review of Registrar Hammerton Cole’s decision for the following reasons:

I have had a chance to scrutinise Registrar Hammerton Cole's decision and have noticed that one of the certifications for an SES selection process is missing.

According to a document published on the Federal Court of Australia's disclosure log, Susan O'Connor was selected to an SES Band 1 "National Judicial Registrar", on an ongoing full time basis on 19 November 2018 (please refer to "category D" of the document associated with request to of PA2925-06/9 on the disclosure log of the Federal Court: see https://fedcourt.gov.au/disclosurelog).

I have carefully reviewed the documents on the Federal Court's disclosure log at PA2925-06/13 and there is no certification for the selection process for an SES Band 1 "National Judicial Registrar". That documents has not been provided to me. Please provide the certification for the selection process for an SES Band 1 "National Judicial Registrar" role in accordance with the terms of my FOI request.

(https://www.righttoknow.org.au/request/c...)

National Judicial Registrar and District Registrar Colbran provided an internal review decision in respect of the request for the certification for the SES Band 1 "National Judicial Registrar" selection process – https://www.righttoknow.org.au/request/c....

National Judicial Registrar and District Registrar Colbran stated in her decision:

The review request does not seek a review in relation to the documents provided to you. Rather, it seeks a review on the basis that not all documents within the scope of the FOI request have been found and provided to you.

I am satisfied that all reasonable steps have been taken to find the documents you have requested (including the Certification referred to in the review request). I am satisfied that, other than the documents identified in the decision dated 21 April 2022, no other documents exist or they cannot be found (see s 24A(1) of the FOI Act).

According to National Judicial Registrar and District Registrar Colbran, the Federal Court does not have a document recording the Australian Public Service Commissioner’s representative’s certification of selection process for the SES1 National Judicial Registrar role. This was the role that Susan O’Connor was selected to fill (see page 4 of document “Request 2” - PA2925-06/09 on the Federal Court’s disclosure log).

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

Yours faithfully,

Aiofe

External FOI, Federal Court of Australia

OFFICIAL
Dear Aiofe

I acknowledge receipt of your request below for an internal review of the decision made on behalf of the Federal Court of Australia and dated 30 June 2022.

Kind regards

FOI Officer
Federal Court of Australia

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External FOI, Federal Court of Australia

1 Attachment

OFFICIAL
Dear Aiofe

Please find attached correspondence from the Federal Court of Australia.

Kind regards

FOI Officer
Federal Court of Australia

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Aiofe left an annotation ()

REASONS WHY DOCUMENTS REQUESTED WERE REFUSED, ON INTERNAL REVIEW, BY NICOLA COLBRAN, THE NATIONAL JUDICIAL REGISTRAR & DISTRICT REGISTRAR OF THE SOUTH AUSTRALIA DISTRICT REGISTRY OF THE FEDERAL COURT

Dear Aiofe

Request for an internal review under the Freedom of Information Act

I refer to your email correspondence of 29 July 2022 (6:40PM) seeking an internal review of the decision made on 30 June 2022.

Authorised decision-maker

I am authorised to make a decision on behalf of the Federal Court of Australia (Court) in relation to your internal review request. In conducting the internal review, I acknowledge that an internal review is a merit review process and that I am required to bring a fresh, independent and impartial mind to the review ...

Decision on Internal Review

Documents in item (1) of the FOI request

The decision dated 30 June 2022 identified four documents within the scope of your request. However, I am of the view that the documents identified are not within scope as they do not relate to both the role the person applied for and that they were selected to fill. I am satisfied that all reasonable steps have been taken to find the documents you have requested, but the documents cannot be found or do not exist (see s 24A(1) of the FOI Act). I therefore refuse your access request.

Documents in item (2) of the FOI request

The decision dated 30 June 2022 stated that no documents were found. I am satisfied that this is correct. I therefore refuse your request to access the documents as I am satisfied that all reasonable steps have been taken to find the documents you have requested, but the documents cannot be found or do not exist (see s 24A(1) of the FOI Act).

Documents in item (3) of the FOI request

The decision dated 30 June 2022 identified five documents within the scope of your request. However, I am of the view that the documents identified are not within scope as they do not relate to both the role the person applied for and that they were selected to fill. I am satisfied that all reasonable steps have been taken to find the documents you have requested, but the documents cannot be found or do not exist (see s 24A(1) of the FOI Act). I therefore refuse your access request.

Documents in item (4) of the FOI request

The decision dated 30 June 2022 identified four documents within the scope of your request. However, I am of the view that the documents identified are not within scope as they do not relate to both the role the person applied for and that they were selected to fill. I am satisfied that all reasonable steps have been taken to find the documents you have requested, but the documents cannot be found or do not exist (see s 24A(1) of the FOI Act). I therefore refuse your access request.

Documents in item (5) of the FOI request

The decision dated 30 June 2022 identified one document within the scope of your request. However, I am of the view that the document identified is not within scope as they do not relate to both the role the person applied for and that they were selected to fill. I am satisfied that all reasonable steps have been taken to find the documents you have requested, but the documents cannot be found or do not exist (see s 24A(1) of the FOI Act). I therefore refuse your access request.

Searches Undertaken

Prior to the decision dated 30 June 2022, extensive searches were undertaken by staff of the Court to identify any documents falling within the scope of your request. I have reviewed these searches and spoken to Court personnel who were involved in this process. The process for undertaking the searches involved consultations with senior staff of the Court, searches of the Court’s human resources and recruitment inboxes, searches of staff emails, as well as searches of the Court’s human resources shared drive, the Court’s electronic documents, records management and information systems. The searches utilised key words based on Court staff’s knowledge of document titling practices in the Court. Staff engaged in extensive consultations to determine appropriate key word searches by reference to the description of the documents in your FOI request.

I am satisfied that the searches undertaken were thorough and comprehensive. I do not believe any further reasonable search or enquiry would find additional documents within the scope of your request. I am satisfied that, other than the documents already found, no other documents exist or they cannot be found ...

Yours sincerely

Nicola Colbran

National Judicial Registrar & District Registrar

Allan left an annotation ()

I made a request in exactly the same terms as Aiofe's for vacancy notices:

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

My FOI request was worded accordingly:

Under the FOI Act I request:

a) the vacancy notice for the National Judicial Registrar role in the Federal Court that Susan O'Connor applied for and came to fill;
b) the vacancy notice for the National Judicial Registrar role in the Federal Court that Phillip Allaway applied for and came to fill;
c) the vacancy notice for the National Judicial Registrar role in the Federal Court that Matthew Benter applied for and came to fill;
d) the vacancy notice for the National Judicial Registrar role in the Federal Court that Rupert Burns applied for and came to fill;
e) the vacancy notice for the National Judicial Registrar role in the Federal Court that Claire Gitsham applied for and came to fill;
f) the vacancy notice for the National Judicial Registrar role in the Federal Court that David Ryan applied for and came to fill; and
g) the vacancy notice for the National Judicial Registrar role in the Federal Court that Tuan Van Le applied for and was came to fill.

When Claire Hammerton Cole made her original decision, I sought review because the documents that she furnished were not documents that were covered by the terms of my FOI request (https://www.righttoknow.org.au/request/v...). They are the same documents that she furnished to Aiofe and which Aiofe sought review for because they were not covered by the terms of her FOI request.

On internal review (https://www.righttoknow.org.au/request/v...), Scott Tredwell, the General Counsel of the Federal Court said:

"Decision on review

I am satisfied that the decision maker has provided you access to all documents within the scope of your FOI request.

Reasons for Decision

In relation to your FOI request, the searches conducted by the Court found four documents which are identified clearly within the FOI decision. I will not specifically identify each of those documents again here but will refer to them collectively as the recruitment documents.

As identified above, I am satisfied that the searches undertaken were thorough and comprehensive. I do not believe any further reasonable search or enquiry could find additional documents within the scope of your request.

In your review request, you assert, in respect of the FOI decision and the documents provided, that the decision maker has “not provided the documents that I requested in my FOI request”. THIS IS SIMPLY NOT CORRECT (my emphasis). Furthermore, it is not my role as an FOI internal reviewer to provide advice addressing the perceived discrepancies between the documents for which access was granted and those you believe you should have gained access to, or how the specific recruitment was undertaken."

Well, if my contentions are "simply not correct", why is it that Nicola Colbran has set aside Claire Hammerton Cole's decision in respect of the vacancy notices that she provided to Aiofe and stated that the documents do not exist?

How can the documents not exist (see Nicola Colbran's internal review decision) and exist, and be the very documents that Nicola Colbran said were not covered by the identically worded FOI request that Aiofe made for the vacancy notices? It's logically impossible. Either Scott Tredwell has stated the truth or Nicola Colbran has stated the truth, but both cannot have stated the truth.