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Recruitment information

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Dear Federal Court of Australia,

For each of:

a) Nicola Colbran;
b) Tim Luxton
c) Peter Schmidt
d) Russell Trott,

I request the following documents under the FOI Act:

i) the vacancy notifications, published in the Public Service Gazette or elsewhere, for the roles/positions for which they were successfully engaged or promoted to fill;
ii) the classification assessments for each of the roles/positions they have come to fill (i.e. National Judicial Registrar and District Registrar for their relevant State registries);
iii) documents identifying the classification that each of Ms Colbran, Mr Luxton, Mr Schmidt and Mr Trott were allocated, pursuant to rule 6 of the Public Service Classification Rules 2000, by the Agency Head or their delegate upon first being engaged to fill, or being promoted to fill, the relevant National Judicial Registrar & District Registrar vacancies;
iv) documents other than the classification assessments and vacancy notices that set out the scope of the roles to be performed by the National Judicial Registrars & District Registrars (e.g. position descriptions); and
v) certificates issued by the Australian Public Service Commissioner’s representative in respect of SES selection processes.

Yours faithfully,

Jake S

External FOI, Federal Court of Australia

1 Attachment

OFFICIAL
Dear Jake

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

10 Attachments

  • Attachment

    2022 04 20 FOI Decision Jake S 1.pdf

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  • Attachment

    1.Gazette Notice District Registrar.pdf

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  • Attachment

    2.Gazette Notice National Judicial Registrar District Registrar QLD.pdf

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  • Attachment

    3.Gazette Notice National Judicial Registrar District Registrar.pdf

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  • Attachment

    4.Position Description National Judicial Registrar and District Registrar QLD.pdf

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  • Attachment

    5.Position Description SES 1 District Registrar SA and NT.pdf

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  • Attachment

    6.Position Description SES 1 National Judicial Registrar District Registrar.pdf

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  • Attachment

    7.Commissioners Representative Certificate District Registrar SA and NT redacted.pdf

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  • Attachment

    8.Commissioners Representative Certificate National Judicial Registrar and District Registrar VIC redacted.pdf

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  • Attachment

    9.Commissioners Representative Certificate National Judicial Registrar and District Registrar WA redacted.pdf

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OFFICIAL
Dear Jake,

Please find attached correspondence from the Federal Court of Australia.

Kind regards,

FOI Officer
Federal Court of Australia

show quoted sections

Dear B Henderson,

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

I am writing to request an internal review of Federal Court of Australia's handling of my FOI request 'Recruitment information'.

Thank you for providing the vacancy notifications, published in the Public Service Gazette or elsewhere, for the roles/positions for which Nicola Colbran, Tim Luxton, Peter Schmidt and Russell Trott were successfully engaged or promoted to fill.

Thank you for providing the position descriptions for the role that Nicola Colbran, Tim Luxton, Peter Schmidt and Russell Trott were successfully engaged or promoted to fill.

Thank you also for providing the Australian Public Service Commissioner's representative's certifications in respect of SES selection processes which saw Nicola Colbran, Tim Luxton and Russell Trott selected for SES Band 1 roles in the Federal Court. While you have redacted the signatures of the representatives, I have no issue with that.

You have refused access to the following documents:

a) the classification assessments for each of the roles/positions Nicola Colbran, Tim Luxton, Peter Schmidt and Russell Trott have come to fill (i.e. National Judicial Registrar and District Registrar for their relevant State registries); and
b) documents identifying the classification that each of Ms Colbran, Mr Luxton, Mr Schmidt and Mr Trott were allocated, pursuant to rule 6 of the Public Service Classification Rules 2000, by the Agency Head or their delegate upon first being engaged to fill, or being promoted to fill, the relevant National Judicial Registrar & District Registrar vacancies.

You have refused (a) because you have not been able to find these documents.

I do not accept this.

Subsection 24(1) of the Archives Act 1983 makes clear that:

a person must not engage in conduct that results in:

(a) the destruction or other disposal of a Commonwealth record; or
(b) the transfer of the custody or ownership of a Commonwealth record; or
(c) damage to or alteration of a Commonwealth record.

Subsection 24(1A) of the Archives Act makes conduct set out in s 24(1) a strict liability offence.

Nonetheless, paragraph 24(2)(b) of the Archives Act provides that subsection 24(1) of the Archives Act does not apply to anything done with the permission of the Archives or in accordance with a practice or procedure approved by the Archives.

The Administrative Functions Disposal Authority (AFDA) is such a "practice or procedure approved by the Archives". Under class 62629 of the AFDA, details of assigned duties must be maintained. The classification evaluation sets out the details of a person's assigned duties by reference to the work level standards issued by the Australian Public Service Commissioner, and then sets out the classification of the role. Class 62629 documents may only be destroyed "75 years after date of birth of employee or 7 years after last action, whichever is later."

You would be suggesting the very real possibility that somebody committed an offence by claiming that the documents cannot be found. The documents should exist. Consider the example of the National Judicial Registrar & District Registrar role in Queensland that Peter Schmidt was succeeded in securing. It is public information that the National Judicial Registrar & District Registrar role in Queensland used to be classified at the SES 1 Band. See, for example, the vacancy notification that you provided (document number 3), and the position description you provided (document number 6). See, also, the selection report for that role published on the Right to Know website (https://www.righttoknow.org.au/request/s...) or the APSC's representative's certificate in relation to the selection process for the SES Band 1 National Judicial Registrar & District Registrar - QLD role (https://www.righttoknow.org.au/request/c...). Plainly, in May 2018, the National Judicial Registrar & District Registrar role in Queensland was classified at the SES 1 Band. The National Judicial Registrar & District Registrar role in Queensland that Peter Schmidt secured is classified at Executive Level 2 according to the vacancy notification that you provided (see document 2). There must have been a reevaluation of the classification of the role, unless somebody plucked a classification out of this air, which would not be lawful. It's not as though there are allegations against the management of the Federal Court that senior officials have entered into all sorts of unlawful arrangements to get around the capped number of SES positions available to the Federal Court of Australia Statutory Agency ;)

I would like your decision in respect of the the classification assessments for each of the roles/positions Nicola Colbran, Tim Luxton, Peter Schmidt and Russell Trott have come to fill subjected to internal review.

You have refused (b) on the basis of 3 conditional exemptions (ss 47E(c), 47E(d), and 47F) and claim that, after having subjected the documents to a public interest assessment, that it would not be in the public interest to disclose the documents.

I do not accept this decision.

First, the classifications assigned to Nicola Colbran, Tim Luxton, Peter Schmidt and Russell Trott under rule 6 of the Public Service Classification Rules 2000 (Cth) must match the classifications assigned to the roles that they have filled. You have already disclosed the classifications of the roles that Nicola Colbran, Tim Luxton, Peter Schmidt and Russell Trott have come to fill. As a matter of necessary implication based on the way that rules 6 and 9 of the Public Service Classification Rules 2000 apply, you have already disclosed the lawful classifications that should have been assigned to Nicola Colbran, Tim Luxton, Peter Schmidt and Russell Trott. They are, respectively, SES1, SES1, EL2 and SES1.

Second, the classifications assigned to Nicola Colbran and Tim Luxton have already been published on the disclosure log of the Federal Court (see documents associated with PA2925-06/9 on the Federal Court of Australia's disclosure log at https://fedcourt.gov.au/disclosurelog). Nicola Colbran's classification as an SES1 employee is confirmed, along with her location (South Australia) and her employment status (ongoing, full-time employee). Timothy Luxton's classification as an SES1 employee is also confirmed. One of the documents notes that he was promoted from an EL2 classification to an SES1 classification, that his title is National Judicial Registrar and District Registrar, his location is Victoria and his employment status is ongoing, full-time employee.

So the claim that the disclosure of documents setting out such information would have a substantial adverse effect on the management or assessment of personnel in the Federal Court by the Federal Court or the Commonwealth, or that the disclosure of documents setting out such information would have a substantial adverse effect on the proper and efficient operations of the Federal Court is codswallop.

Curiously, Mr Trott's name is not included in the list of Senior Executive Service employees set out in the documents associated with PA2925-06/9 on the disclosure log of the Federal Court. Of course, providing a document that sets out Mr Trott's classification (SES1) could be of not prejudice to him or the Court because he applied for the SES Band 1 National Judicial Registrar & District Registrar role in Western Australia (which you have confirmed by providing me with the vacancy notification for the role he applied to fill), and he was selected for that role (that is obvious, and a corollary of the confirmation that Mr Trott successfully secured a role classified at the SES1 classification), and the selection process was certified as complying with the APS employment values under the Public Service Act 1999 and the Australian Public Service Commissioner's Directions 2016 by the First Assistant Commissioner of the APSC, Kerryn Vine-Camp, and it follows, by the way that rules 6 and 9 of the Public Service Classification Rules 2000 apply that the classification assigned to Mr Trott would match the classification assigned to the National Judicial Registrar & District Registrar role - SES1.

Again, the claim that the disclosure of documents setting out the classification assigned to Mr Trott under rule 6 of the Public Service Classification Rules 2000 would have a substantial adverse effect on the management or assessment of personnel in the Federal Court by the Federal Court or the Commonwealth, or that the disclosure of documents setting out such information would have a substantial adverse effect on the proper and efficient operations of the Federal Court is codswallop.

Of course, if the document relating to the classification assigned to Mr Trott demonstrates that the classification assigned to him by the Agency Head or his or her delegate was anything other than SES1, then your reliance on ss 47E(c) and 47E(d) would be misplaced. Mircea has helpfully crafted reasons as to why ss 47E(c) and 47E(d) cannot be relied on if documents disclose unlawful conduct (see https://www.righttoknow.org.au/request/r...),

For completeness, I set out a few choice passages from his email to the Federal Court (with a few minor amendments to capture the context of this request for internal review).

They are:

There are fundamental assumptions that inform statutory interpretation. One of those fundamental assumptions is the assumption of legality. This assumption was elegantly expressed by Isaacs J in Ex parte Walsh and Johnson; In Re Yates (1925) CLR 36:

… even where Parliament confessedly possesses plenary within it own territory, the full literal intention will not be ordinarily ascribed to general words where that would conflict with recognised principles that Parliament would be prima facie expected to respect. Something unequivocal must be found, either in the context or the circumstances, to overcome the presumption.

It could not be assumed that Parliament intended the meaning of the “management of personnel” by the Commonwealth or an agency to extend to the unlawful management of personnel, or to the mismanagement of personnel, by the Commonwealth or an agency. By the same token, it could not be assumed that Parliament intended the meaning of “assessment of personnel” to extend to the “assessment of personnel” by the Commonwealth or an agency for unlawful ends.

The documents could not adversely impact the Court recruitment processes because the documents disclose or evidence unlawful conduct [in as much as the classification assigned to Mr Trott does not match the classification assigned to the role he was successfully recruited to fill]. The documents would have to have an adverse impact on the lawful recruitment processes of the Court for s 47E(c) to apply ...

The management of personnel does not extend to the mismanagement or unlawful management of personnel ... Documents disclosing mismanagement or unlawful management cannot be conditionally exempt under s 47E(c) of the FOI Act because s 47E(c) only extends to documents relating to (lawful) management. To interpret the word “management” to extend to “unlawful management” or “mismanagement” would be to undermine a fundamental tenet of statutory interpretation - Parliament assumes legality. Such an interpretation would not be a purposive interpretation of the FOI Act, which [the FOI decision maker] is compelled to adopt where such an interpretation is open to her (see s 15AA of the Acts Interpretation Act 1901 (Cth)) ...

[Similarly, the assessment of personnel does not extend to the unlawful assessment of personnel ... Documents disclosing unlawful assessment cannot be conditionally exempt under s 47E(c) of the FOI Act because s 47E(c) only extends to documents relating to (lawful) assessment. To interpret the word “assessment” to extend to “unlawful assessment” would be to undermine a fundamental tenet of statutory interpretation - Parliament assumes legality. Such an interpretation would not be a purposive interpretation of the FOI Act, which [the FOI decision maker] is compelled to adopt where such an interpretation is open to her (see s 15AA of the Acts Interpretation Act 1901 (Cth))]

Section 47E(d) of the FOI Act provides:

A document is conditionally exempt if its disclosure under this Act would, or could reasonably be expected to, do any of the following:

(d) have a substantial adverse effect on the proper and efficient conduct of the operations of an agency ...

As I have already noted, there are fundamental assumptions that inform statutory interpretation. One of those fundamental assumptions is the assumption of legality. This assumption was elegantly expressed by Isaacs J in Ex parte Walsh and Johnson; In Re Yates (1925) CLR 36.

It could not be assumed that Parliament intended the meaning of the “proper and efficient conduct of the operations of an agency” to extend to the unlawful conduct of the operations of an agency. So much is accepted by the Information Commissioner who has, in her Guidelines, which [an FOI decision maker] must have regard to under s 93A of the FOI Act, explicitly stated:

6.123 … Where disclosure of the documents reveals unlawful activities or inefficiencies, this element of the conditional exemption will not be met and the conditional exemption will not apply ...

How could documents that have nothing to do with the proper and efficient operations of the Federal Court [i.e. in the case of Mr Trott, a document disclosing that the classification assigned to him is anything other than the lawful classification that should have been applied to him - SES1] have a substantial adverse effect on the proper and efficient conduct of the operations of the Federal Court if they are granted access to?

How will the proper and efficient conduct of the Federal Court’s recruitment processes be affected by documents that disclose unlawfulness? No part of the proper and efficient operation of the Federal Court’s recruitment practices can be substantially and adversely affected because the documents have nothing to do with the proper and efficient operation of the Federal Court’s recruitment practices. The recruitment practices of the Federal Court do not extend to unlawful recruitment practices.

You have yourself noted that “where disclosure of the documents reveals unlawful activities or inefficiencies, this element of the conditional exemption will not be met and the conditional exemption will not apply.” So how is it that you claim that s 47E(d) applies, knowing that the documents you are referring to evidence unlawful conduct in as much as they record [a classification other than SES1 being assigned to Russell Trott]?

Finally, I note that you have entered into a long chain of reasoning on the documents setting out classifications including payment figures and how the disclosure of these figures would have a substantial adverse effect on the operations of the Court or would undermine personal information rights. With respect, that line of reasoning is entirely without merit. I did not ask for financial figures. They can very easily be excised under s 22 of the FOI Act. All I would like to see if a document setting out the lawful classifications of Nicola Colbran, Tim Luxton, Peter Schmidt and Russell Trott, as well as the dates on which the documents were effects and the name of the Agency Head, or the name and title of his or her delegate, giving effect to the assignment of the classification under rule 6 of the Public Service Classification Rules 2000. If there is other content in such documents, you are welcome to redact that content under s 22 of the FOI Act.

For the reasons set out in this email, your reasons for refusing access to the documents requested in (b) of this internal review request (i.e documents identifying the classification that each of Ms Colbran, Mr Luxton, Mr Schmidt and Mr Trott were allocated, pursuant to rule 6 of the Public Service Classification Rules 2000, by the Agency Head or their delegate upon first being engaged to fill, or being promoted to fill, the relevant National Judicial Registrar & District Registrar vacancies) are without basis in law.

I request internal review of your decision in respect of my request for documents identifying the classification that each of Ms Colbran, Mr Luxton, Mr Schmidt and Mr Trott were allocated, pursuant to rule 6 of the Public Service Classification Rules 2000, by the Agency Head or their delegate upon first being engaged to fill, or being promoted to fill, the relevant National Judicial Registrar & District Registrar vacancies.

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

Yours faithfully,

Jake S

External FOI, Federal Court of Australia

1 Attachment

OFFICIAL
Dear Jake S

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 Jake S

Please find attached correspondence from the Federal Court of Australia.

Kind regards

FOI Officer
Federal Court of Australia

show quoted sections

Federal Court of Australia

 
 
  [1]Office of the Australian Information Reference Code:  
Commissioner ICR_10-49398243-2683
 

 
You submitted a form called: FOI Review_
 
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Federal Court of Australia

1 Attachment

Our reference: MR22/00990

 

By email: [FOI #8479 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 MR22/00990.

 

Yours sincerely

 

Freedom of Information Regulatory Group

Office of the Australian Information Commissioner

 

 

 

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We don't know whether the most recent response to this request contains information or not – if you are Jake S please sign in and let everyone know.