Outcome of APSC investigation conducted by acting assistant commissioner Kate McMullan

The request was refused by Australian Public Service Commission.

Dear Australian Public Service Commission,

This is a request for documents.

You are welcome to provide access to the documents by administrative release. Otherwise, this is a request for documents under the FOI Act. Documents may be provided digitally, by return email.

I refer to an article published in the Australian on 8 February 2022 - Untried lawyers score key positions. In that article, there is a reference to a “confidential Australian Public Service Commission investigation” conducted by “acting assistant commissioner Kate McMullan”.

I would like access to the document/s setting out the outcome of the “confidential Australian Public Service Commission investigation” conducted by “acting assistant commissioner Kate McMullan.”

Thanks

Yours faithfully,

raphael

FOI, Australian Public Service Commission

5 Attachments

OFFICIAL

Dear Applicant

 

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

 

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

 

Regards

 

FOI OFFICER

Legal Services

 

Australian Public Service Commission

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

 

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

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

 

 

 

 

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FOI, Australian Public Service Commission

8 Attachments

OFFICIAL

Dear Applicant

 

A decision notice and document are enclosed.

Regards

 

FOI OFFICER

Legal Services

 

Australian Public Service Commission

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

 

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

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

 

 

 

 

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

 

 

 

 

From: FOI <[email address]>
Sent: Friday, 11 February 2022 9:20 AM
To: raphael <[FOI #8402 email]>
Cc: FOI <[email address]>
Subject: RE: Freedom of Information request - Outcome of APSC
investigation conducted by acting assistant commissioner Kate McMullan
[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

Thank you for your decision letter.

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 'Outcome of APSC investigation conducted by acting assistant commissioner Kate McMullan'.

In your letter of decision, you rely on ss 47E(c) and (d), and 47F, of the FOI Act to claim that the document requested is conditionally exempt from release under the FOI Act. You then claim that, pursuant to a public interest assessment, the document should not be granted access to.

In what follows, I will set out why your reasons are not particularly convincing.

You note at [3] of your reasons that sections 47E(c) and 47E(d) of the FOI Act provide that a document is conditionally exempt from disclosure if its disclosure would, or could be reasonably expected to, have a substantial adverse effect on the management or assessment of personnel by an agency, or on the proper and efficient conduct of the operations of an agency.

You then set out your reasons in paragraph 4 – 12 in relation to the s 47E conditional exemptions.

You also claim that there are privacy exemption grounds in your decision.

You claim that it is, on balance, not in the public interest for the document to be released.

On that basis you have redacted the overwhelming majority of the content in the document.

As you know, under s 47E(c) it is quite a tall order to conclude that disclosure of particular information, in particular documents, could reasonably be suspected to have a substantial adverse effect on the management or assessment of personnel by the Commonwealth or by an agency: Re Dyrenfurth and Department of Social Security (1987) 12 ALD 577 at 585.

A degree of gravity is required before an adverse effect may be regarded as "substantial"; the onus of establishing a "substantial adverse effect" is a heavy one: Re Dyki and Federal Commissioner of Taxation (1990) 12 AAR 544; 22 ALD 124.

As you know, under s 47E(d) The expression "substantial adverse effect" when used in the now-repealed s 40(1)(d) and s 47E(1)(e) bore no different meaning than when used elsewhere in the Act: Re Thies and Department of Aviation (1986) 9 ALD 454.

As an example, consider the first and second pages of the redacted document that you provided. There is a title neat the foot of page one that reads “Duration of investigation”. You and I know that the following is noted under that title:

The investigation commenced from the date of allocation on 11 May 2020 and the due date for completion of the investigation was 9 August 2020. On 7 August 2020 the Commonwealth Ombudsman granted an extension of 92 days until 9 November 2020. On 6 November the Commonwealth Ombudsman granted a further extension until 9 December 2020. The investigation and this report was (sic) completed on 9 December 2020, being a total of 212 days from the date of allocation and within the timeframe permitted.

I find it difficult to believe that the passage set out above would, or could be reasonably expected to, have a substantial adverse effect on the management or assessment of personnel by an agency. I find it difficult to believe that the passage set out above would, or could be reasonably expected to, have a substantial adverse effect on the proper and efficient conduct of the operations of an agency.

As you know, the FOI Guidelines provide (at 6.101 – 6.103) that:

For the grounds in ss 47E(a)-(d) to apply, the predicted effect needs to be reasonably expected to occur…There must be more than merely an assumption or allegation that damage may occur if the document were to be released.

An agency cannot merely assert that an effect would occur following disclosure. The particulars of the predicted effect should be identified during the decision making process, including whether the effect could reasonably be expected to occur. Where the conditional exemption is relied upon, the relevant particulars and reasons should form part of the decision maker’s statement of reasons, if they can be included without disclosing exempt material…

You have not particularised the predicted effect in your statement of reasons. Rather, you have merely asserted that an effect would occur following disclosure. So, how would the passage set out above, have a substantial adverse effect on the management or assessment of personnel by an agency? How would the passage set out above have a substantial adverse effect on the proper and efficient conduct of the operations of an agency? No reasonable person could conclude that they would, or could be reasonably expected to have such an effect. You cannot rise above the conditional exemption ground. It is thus entirely unnecessary to consider the public interest test.

I accept that, in many instances, the disclosure of reports prepared under the Public Interest Disclosure Act would, or could be reasonably expected to, have a substantial adverse effect on the management or assessment of personnel by an agency, or on the proper and efficient conduct of the operations of an agency. But that does not mean that it will be the case in all instances. Moreover, it does not mean that the overwhelming majority of a report should be redacted. Each request must be assessed on its own terms in the light of all the circumstances.

At paragraphs 20 and 21 of your decision, you have set out the factors you consider to favour disclosure. They are:

a) access would promote the objects of the FOI Act;

b) access would inform debate on a matter of public importance; and

c) access would promote effective oversight of public expenditure

d) access could allow or assist inquiry into the conduct or administration of an APS agency or public official; and

e) access could enhance the scrutiny of the Commissioner’s inquiry functions and processes under the PS Act and the PID Act.

At paragraph 22 of your decision, you have set out the factors you consider do not favour disclosure:

a) access could reasonably be expected to prejudice the privacy of the individuals considered in the document;

b) access could be expected to undermine the confidentiality and secrecy provisions which are fundamental pillars of the PID scheme;

c) access could be expected to adversely affect the management and assessment of staff of the Commission;

d) access could diminish the future flow of information to the Commissioner from disclosers, complainants, witnesses, staff and other third parties; and

e) access could be expected to adversely affect the proper and efficient operations of the Commissioner and the Commission in performing statutory functions and powers under the PS Act and the PID Act.

Some of these reasons not favouring disclosure are without merit in the light of section 22 of the FOI Act.

One does not need to grant access to the entirety of the document requested to comply with the provisions of the FOI Act.

Subsection 22(1) of the FOI Act provides:

This section applies if:

(a) an agency or Minister decides:

(i) to refuse to give access to an exempt document; or
(ii) that to give access to a document would disclose information that would reasonably be regarded as irrelevant to the request for access; and

(b) it is possible for the agency or Minister to prepare a copy (an edited copy) of the document, modified by deletions, ensuring that:

(i) access to the edited copy would be required to be given under section 11A (access to documents on request); and
(ii) the edited copy would not disclose any information that would reasonably be regarded as irrelevant to the request; and

(c) it is reasonably practicable for the agency or Minister to prepare the edited copy, having regard to:

(i) the nature and extent of the modification; and
(ii) the resources available to modify the document; and

(d) it is not apparent (from the request or from consultation with the applicant) that the applicant would decline access to the edited copy.

Subsection 22(2) provides:

The agency or Minister must:

(a) prepare the edited copy as mentioned in paragraph (1)(b); and
(b) give the applicant access to the edited copy.

You know, as I do, that the report prepared by Ms McMullan is deficient in many respects.

For example, you know that Ms McMullan failed to comply with subsection 51(3) of the PID Act because Ms McMullan did not comply with paragraph 13(d) of the Public Interest Disclosure Standards 2013. Nowhere in her PID report does the acting assistant commissioner set out a summary of evidence. Nowhere in the PID report does the acting assistant commissioner set out findings and recommendations made based on that evidence.

Ms McMullan does note, under the “Materials considered” heading on page one of the PID report:

In preparing this report I have considered the following relevant matters:

• Disclosure report and attachments, provided to the APSC upon allocation on 11 May 2020 (as well as supplementary information and correspondence from discloser on [relevant dates] outlining disclosure amounting to allegations that proper recruitment practices were not undertaken with respect to recruitment processes leading to the appointment of [10 registrars in the Federal Court].
• Materials provided by the [Federal Court] on [relevant dates] about the process underpinning the engagement of each of the persons above, in response to requests for information from me.

But this is the entirety of what is noted in respect of evidence. Ms McMullan might as well have said that “I received envelopes on certain dates in which evidentiary materials were contained”. That is not a summary of evidence for the purposes of the Standards or the PID Act. Nor does that constitute findings and recommendations based on evidence for the purposes of the Standards or the PID Act.

Of course, this is the least of Ms McMullan’s and the APSC’s worries. We both know that Ms McMullan made serious errors of law and fact in her PID report. Even without the PID report, members of the community have noticed errors in the conclusions that Ms McMullan drew, which have been reported in articles in the Australian. The scores of FOI requests seeking documentary evidence in support of those conclusions on the Right to Know website support that claim.

Section 6 of the PID Act sets out the objects of the Act. Among those objects are the following:

a) to promote the integrity and accountability of the Commonwealth public sector; and
b) to encourage and facilitate the making of public interest disclosures by public officials; and
c) to ensure that disclosures by public officials are properly investigated and dealt with.

You have noted that if access were provided to the PID report, that could:

a) diminish the future flow of information to the Commissioner from disclosers, complainants, witnesses, staff and other third parties; and

b) be expected to adversely affect the proper and efficient operations of the Commissioner and the Commission in performing statutory functions and powers under the PS Act and the PID Act.

These reasons presuppose that the Commissioner and his delegates can be trusted to competently investigate disclosures made under the PID Act (or complaints made under the PS Act, which is neither here nor there for the purposes of my FOI request, including my internal review request). Of course, that presupposition is taken on faith. Sadly, it is a complacent one because it is obvious to anybody who has read Ms McMullan’s PID report that her investigation was nothing short of a stitch up. What good are your reasons if the truth is that the Commissioner and his delegates have not in the past competently investigated allegations of misconduct under the PID Act (as demonstrated in the minor example set out above)? What good are your reasons when it is plain, based on the articles published in the Australian, that the acting assistant commissioner’s conclusions are affected by error? What good are your reasons when it is plain, based on the articles published in the Australian, Justice Greenwood, a Judge of the Federal Court has no confidence in the way the APSC handled the selection of Mr Belcher into the role of National Judicial Registrar & District Registrar – QLD? What good are your reasons when it is plain that the Commonwealth Ombudsman has mounted a preliminary investigation into the PID investigation conducted by acting assistant commissioner McMullan?

I would argue that there is, on balance, a public interest in granting access to considerable parts of the PID report prepared by Ms McMullan because access would inform debate on a matter of public importance (i.e. cronyism or patronage in the Federal Court of Australia) and access would enhance scrutiny of the Commissioner’s inquiry functions and processes under the PID Act (i.e. acting assistant commissioner McMullan’s attempt to stitch up an investigation into allegations of cronyism or patronage in the Federal Court of Australia).

The person conducting the internal review should reassess the redactions you have applied to the PID report prepared by Ms McMullan.

Finally, I note two things.

First - I came across the substance of the articles on a reddit post (see, for example, https://www.reddit.com/r/auslaw/comments...). Substantial propositions and allegations contained in the PID report prepared by Kate McMullan have been reported in three articles published in the Australian. Thus, the key propositions and allegations in the PID report are actually available in the public domain.

Second - it would be foolish to assume that this issue will go away. If anything, it appears to be snowballing. Time is not on the APSC’s side. It would, in my opinion, be sensible for the APSC to take a cooperative, contrite and circumspect approach to my request for internal review. No agency is perfect. Admitting major failures may not be pleasant, but such admissions will engender faith in the public and public servants because those making the admissions have the integrity to accept that they can get in wrong. Trying to hide behind smokescreens, irrelevant comments (they are apparent in some of your decisions) and the like will only engender contempt and resentment, especially among public servants who have (complacently) placed faith in the Commissioner’s, and the Commissioner’s delegate’s, abilities to conduct investigations competently, according to law.

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

Yours faithfully,

raphael

FOI, Australian Public Service Commission

5 Attachments

OFFICIAL

Dear Applicant

 

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

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

 

Regards

 

FOI OFFICER

Legal Services

 

Australian Public Service Commission

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

 

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

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

 

 

 

 

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

 

 

 

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FOI, Australian Public Service Commission

7 Attachments

OFFICIAL

Dear Applicant

 

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

 

Kind regards

 

FOI OFFICER

Legal Services

 

Australian Public Service Commission

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

 

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

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

 

 

 

 

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

 

 

 

From: FOI <[email address]>
Sent: Tuesday, 29 March 2022 11:32 AM
To: raphael <[FOI #8402 email]>
Cc: FOI <[email address]>
Subject: Acknowledgement: Internal review of Freedom of Information
request - Outcome of APSC investigation conducted by acting assistant
commissioner Kate McMullan [SEC=OFFICIAL]

 

OFFICIAL

Dear Applicant

 

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

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

 

Regards

 

FOI OFFICER

Legal Services

 

Australian Public Service Commission

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

 

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

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

 

 

 

 

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

 

 

 

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