Dear Australian Public Service Commission,

Under s 15 of the FOI Act, I request access to any documents held by the APSC that stand for or support the following proposition in the context of merit based selection:

Where a vacancy lists a set of criteria as essential and a candidate for the vacancy does not meet certain essential criteria, and other candidates do meet those criteria, it is nevertheless appropriate, in the context of merit based selection, to select the candidate that does not meet certain essential criteria if that candidate has "a clear pathway to eligibility within a reasonable time after the recruitment process."

Yours faithfully,

Mircea

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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Mircea left an annotation ()

The plot thickens.

... Secondly, thank you for confirming that "Finance acts in accordance with the legislation and an agency head is empowered to set conditions of engagement (Public Service Act 1999, subsection 22(6)) ensuring that they are clearly stipulated in the job advertisement as not to mislead a candidate about the requirements." Your answer contradicts statements made by acting Assistant Commissioner McMullan (and reproduced in an article published in the Australian on 8 February 2022 - Untried junior lawyers score key Federal Court positions), the relevant statement being that "there was no contravention of public service legislation because there was 'a clear pathway to eligibility within a reasonable time after the recruitment process." The statement attributed to acting Assistant Commissioner McMullan sounded like nonsense. Your response convinces me that it is nonsense ...

See: https://www.righttoknow.org.au/request/m...

So what of the conclusions of acting Assistant Commissioner McMullan?

Let's see what the APSC comes up with.

FOI, Australian Public Service Commission

8 Attachments

OFFICIAL

Dear Applicant

 

Please find attached:

 

·         A Decision Notice; and

·         Document 1.

 

Regards

 

FOI OFFICER

Legal Services

 

Australian Public Service Commission

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

 

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

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been sent in error. If you have received this email in error, please
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From: FOI <[email address]>
Sent: Tuesday, 15 February 2022 5:20 PM
To: Mircea <[FOI #8425 email]>
Cc: FOI <[email address]>
Subject: RE: Acknowledgment SHC22-1393 [SEC=OFFICIAL]

 

OFFICIAL

Dear Applicant

 

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

 

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

 

Regards

 

FOI OFFICER

Legal Services

 

Australian Public Service Commission

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

 

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

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

 

 

 

 

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

 

 

 

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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 'Merit based selection'.

First, the document that you have provided is about conditions of engagement. As the head of the Integrity, Performance and Employment Policy Unit of the Australian Public Service Commission, you would know better than most that a distinction is drawn between conditions of engagement and essential qualifications for the performance of work related duties under the Public Service Act 1999 (Cth). So, for example, in s 29(3) of the Public Service Act, an employee lacking, or losing, an essential qualification for performing his or her duties is separate to a failure to meet a condition of engagement imposed under s 22(6) of the Act as a ground for the termination of employment. Parliament has drawn a distinction between essential qualifications and conditions imposed under s 22(6). Plainly they are not the same thing. Nothing in the document you have provided addresses the engagement of a person into the Australian Public Service who lacks or loses essential qualifications.

Second, and more importantly, I requested access to any documents that supported the following proposition: where a vacancy lists a set of criteria as essential and a candidate for the vacancy does not meet certain essential criteria, and other candidates do meet those criteria, it is nevertheless appropriate, in the context of merit based selection, to select the candidate that does not meet certain essential criteria if that candidate has "a clear pathway to eligibility within a reasonable time after the recruitment process."

Nothing in the document you have provided addresses how it is appropriate, in the context of merit based selection, to engage a person who does not meet essential criteria for a vacancy when that candidate has “"a clear pathway to eligibility within a reasonable time after the recruitment process”, when other candidates do meet those essential criteria.

I request internal review of your decision because the document you have granted access to does not meet the terms of the request made. In other words, you have failed to address the request.

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,

Mircea

FOI, Australian Public Service Commission

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: www.apsc.gov.au

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

6 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.

 

 

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Mr Hetherington

In your letter of decision you state:

On 14 February 2022 you requested access to the following documents under the FOI Act:

Under s 15 of the FOI Act, I request access to any documents held by the APSC that stand for or support the following proposition in the context of merit based selection:

Where a vacancy lists a set of criteria as essential and a candidate for the vacancy does not meet certain essential criteria, and other candidates do meet those criteria, it is nevertheless appropriate, in the context of merit based selection, to select the candidate that does not meet certain essential criteria if that candidate has "a clear pathway to eligibility ·within a reasonable time after the recruitment process. "

On 28 February 2022, Ms Giorgina Strangio responded to your request. Ms Strangio identified one document which fell within the scope of your request. Ms Strangio granted you full access to the document …

On 1 March 2022, I requested an internal review of Ms Strangio’s decision.

Your internal review decision is as follows:

After considering your request, I am affirming Ms Strangio's initial decision.

I note that the Commission provides high level policy advice and guidance to agencies regarding the engagement of individuals under the Public Service Act 1999 (Cth). I also note that the guidance relevant to your request has been provided to you in full.

Whether or not it is appropriate for an agency to select a candidate that does not meet an essential criteria is a matter for each individual agency and their specific recruitment processes. It is also open to an agency to make engagement conditional on meeting an essential criteria within a specified time period.

Your reasons for decision are nonsense.

My request was for any documents that are held by the APSC that stand for or support the following proposition in the context of merit based selection:

Where a vacancy lists a set of criteria as essential and a candidate for the vacancy does not meet certain essential criteria, and other candidates do meet those criteria, it is nevertheless appropriate, in the context of merit based selection, to select the candidate that does not meet certain essential criteria if that candidate has "a clear pathway to eligibility ·within a reasonable time after the recruitment process."

The proposition has two limbs.

The first is that it is appropriate, in the context of merit based selection, to select a candidate that does not meet certain essential criteria if that candidate has "a clear pathway to eligibility ·within a reasonable time after the recruitment process."

The second is that where there are candidates who do meet essential criteria, it is, in the context of merit based selection, appropriate to select a candidate who does not meet essential criteria over candidates who do meet essential criteria.

These two limbs of the compound proposition being my request must be satisfied.

The document that Ms Strangio provided did not satisfy both limbs of the compound proposition.

By affirming Ms Strangio’s decision, you have failed to address the original FOI request and the internal review request.

You state:

I note that the Commission provides high level policy advice and guidance to agencies regarding the engagement of individuals under the Public Service Act 1999 (Cth). I also note that the guidance relevant to your request has been provided to you in full.

You state:

Whether or not it is appropriate for an agency to select a candidate that does not meet an essential criteria is a matter for each individual agency and their specific recruitment processes. It is also open to an agency to make engagement conditional on meeting an essential criteria within a specified time period.

Both statements are irrelevant to the request.

Either the APSC has a document that, explicitly or by implication, supports the compound proposition or it does not.

If the APSC has the document, you should provide it.

If the APSC does not have the document, the request should be refused under s 24A of the FOI Act.

It’s really not that difficult.

Your reasons for decision are illogical. It’s embarrassing that, as the Deputy Australian Public Service Commissioner, you would be comfortable with your reasons being published.

I have applied for review by the Information Commissioner (which will probably take 2 years - Go Team Australia). The reference code for the review is JA4XBTGA. I intend to provide updates about the IC review on this website when those updates are available to me.

Yours sincerely,

Mircea

Australian Public Service Commission

 
 
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Australian Public Service Commission

1 Attachment

Our reference: MR22/00463

 

By email: [FOI #8425 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 MR22/00463.

 

Yours sincerely

 

Freedom of Information Regulatory Group

Office of the Australian Information Commissioner

 

 

 

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