Dear Federal Court of Australia,

This is a request for documents, which you may grant access to the documents by administrative release. Otherwise, please accept this email as a request for documents under the FOI Act.

In an article published in the Australian on 10 February 2022 (Top judge warned of registrar overhaul), the following is stated:

a) “Mr Soden had claimed the registrar, a man who had been at the court for many years, could not be given the original Senior Executive Service classification advertised because it would be vetoed by the APSC representative”;
b) “Warwick tells me there is a problem because the (APSC) has a veto on an SES appointments”;
c) “… the most senior registrar in Queensland ended up in a position lower than the SES classifications other state registrars were given”;
d) “To solve the problem, Warwick wants to downgrade the role from an SES position, avoid the APSC’s veto and appoint (him)”;
e) “Warwick’s advice that the APSC has a veto on appointment is wrong”;
f) “Justice Greenwood confirmed he had been told that the APSC had objected to the man’s appointment because he ‘might not be accommodating of planned changes to the management structure of the court’”;
g) “[The Registrar] was ultimately appointed to the role at the (lower level) configured by Mr Soden and Ms Lagos, no doubt in discussion with the APSC.”; and
h) “A week after Justice Greenwood’s complaint about the registrar’s apparent demotion, an HR official wrote to the man to confirm they would use ‘an agency determination which varies your base salary’, giving him a pay rise.”

Presumably, the reference to “the Registrar” is a reference to “the most senior registrar in Queensland [who] ended up in a position lower than the SES classifications other state registrars were given.” Perhaps the title is National Judicial Registrar (based on comments reproduced from Ms McMullan’s report).

The relevant selection exercise occurred somewhere about October 2018 according to the article.

I request access to:

a) the “agency determination” that varied the relevant registrar’s base salary;
b) the written correspondence from the “HR official” confirming that the Court would use “an agency determination which varies [the registrar’s] base salary”;
c) the vacancy notification published in the Public Service Gazette for the position that this registrar applied to fill;
d) any other materials that constituted part of the recruitment documentation (for example, role descriptions, work level standards assessment etc); and
e) any certification issued by the Australian Public Service Commissioner's representative noting that the selection process complied with the Public Service Act and the Australian Public Service Commissioner's Directions (formerly known as a section 21(b) certificate).

Please provide the documents in digital format (e.g. PDF or Microsoft Word).

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

4 Attachments

  • Attachment

    2022 04 12 FOI Decision Aiofe 1.pdf

    330K Download View as HTML

  • Attachment

    4 Gazette Notice National Judicial Registrar District Registrar.pdf

    149K Download View as HTML

  • Attachment

    Position Descrtiption SES 1 National Judicial Registrar District Registrar.pdf

    754K Download View as HTML

  • Attachment

    Commissioners Representative Certificate National Judicial Registrar and District Registrar QLD redacted.pdf

    333K Download View as HTML

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 Ms Hammerton Cole

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 'Request for documents'.

With respect to paragraph (c) of my request, thank you for providing the vacancy notification published in the Public Service Gazette for the SES Band 1 National Judicial Registrar & District Registrar - QLD.

With respect to paragraph (e), thank you for providing the Australian Public Service Commissioner's representative's certificate certifying that the selection process for the SES Band 1 National Judicial Registrar & District Registrar - QLD complied with s 10A(2) of the Public Service Act 1999 (Cth) and the requirements of the Australian Public Service Commissioner's Directions 2016 (Cth). Thank you also for confirming that Kerryn Vine Camp, the former First Assistant Commissioner of the Australian Public Service Commission, was the Commissioner's representative.

It is apparent that the person who was selected by the selection panel for the SES Band 1 National Judicial Registrar & District Registrar - QLD was Murray Belcher: see Federal Court of Australia’s Annual Reports for 2018-2019 (p 129) and 2019-2020 (p 125) as well as https://www.righttoknow.org.au/request/s...).

In respect of paragraph (a) of my request, you have refused access to the "agency determination" that varied Mr Belcher's base salary. You have done so on the basis of three conditional exemptions (sections 47E(c), 47E(d) and 47F), as well as on the basis that it would not be in the public interest to provide access to the document.

In respect of paragraph (b) of my request, you have refused access to the correspondence from the “HR official” confirming that the Court would use “an agency determination which varies [Mr Belcher's] base salary”. You have done so on the basis of four conditional exemptions (sections 47C, 47E(c), 47E(d) and 47F), as well as on the basis that it would not be in the public interest to provide access to the document.

In respect of paragraph (d) of my request, you have refused access to two documents that constituted part of the recruitment documents. Those documents are the selection report for the SES Band 1 National Judicial Registrar & District Registrar - QLD vacancy as well as a document with handwritten notes. You have done so on the basis of four conditional exemptions (sections 47C, 47E(c), 47E(d) and 47F), as well as on the basis that it would not be in the public interest to provide access to the document.

I will address you reasons and your decision for refusing access to documents falling within the scope of paragraphs a, b and d of my request.

A. Agency determination

A1. s 47E(c) exemption - management of personnel

You claim that the agency determination is exempt because the document "clearly relate[s] to the 'management of personnel'" given that the document concerns the Court's recruitment processes.

You claim that the granting access to the document would have a substantial adverse effect on the management of personnel by the Commonwealth or the Federal Court for eight reasons.

You claim that the document relates to the "management of personnel" is false. That is because the document does not relate to the lawful management of personnel. At this stage, I acknowledge Mircea's reasons in support of his application for internal review because I adopt some of his reasoning: see https://www.righttoknow.org.au/request/r....

The context in which the agency determination came into existence is public information.

Murray Belcher applied for an SES Band 1 National Judicial Registrar & District Registrar vacancy. Murray Belcher was selected by a selection panel comprised of Sia Lagos, the current Chief Executive Officer and Principal Registrar of the Federal Court, David Pringle, the current Chief Executive Officer and Principal Registrar of Divisions 1 and 2 of the Federal Circuit and Family Court of Australia, and Andrea Jarratt, who was, at the time of the selection process, the Director of National Operations in the Federal Court: see https://www.righttoknow.org.au/request/s....

Kerryn Vine Camp, the Australian Public Service Commissioner's representative, certified the selection process as complying with the Public Service Act and with the Australian Public Service Commissioner's Directions 2016: see https://www.righttoknow.org.au/request/r....

In an article published in the Australian on 10 February 2022 (Top judge warned of registrar overhaul):

a) “Mr Soden had claimed [Mr Belcher], a man who had been at the court for many years, could not be given the original Senior Executive Service classification advertised because it would be vetoed by the APSC representative”;
b) Mr Soden told Justice Greenwood "there is a problem because the (APSC) has a veto on an SES appointments”;
c) Mr Belcher "ended up in a position lower than the SES classifications other state registrars were given”;
d) “To solve the problem, Warwick wants to downgrade the role from an SES position, avoid the APSC’s veto and appoint (him)”;
e) “Warwick’s advice that the APSC has a veto on appointment is wrong”;
f) “Justice Greenwood confirmed he had been told that the APSC had objected to the man’s appointment because he ‘might not be accommodating of planned changes to the management structure of the court’”;
g) “[Mr Belcher] was ultimately appointed to the role at the (lower level) configured by Mr Soden and Ms Lagos, no doubt in discussion with the APSC”; and
h) “A week after Justice Greenwood’s complaint about [Mr Belcher's] apparent demotion, an HR official wrote to the man to confirm they would use ‘an agency determination which varies your base salary’, giving him a pay rise.”

Despite being selected to fill an SES Band1 position by the selection committee and despite Ms Vine Camp certifying that process, Murray Belcher was not promoted to the Senior Executive Service.

That is clear because:

a) No promotion notification has been published or produced for Mr Belcher's "promotion" to the Senior Executive Service of the APS (unlike, for example, Mr Luxton's promotion to the SES Band 1 National Judicial Registrar & District Registrar - VIC role, which was gazetted in the Public Service Gazette: see Public Service Gazette No PS43 - 25 October 2018, p 306, Promotion NN 10736921); and
b) Mr Belcher is not listed in the list of Senior Executive Service employees that is published on the disclosure log of the Federal Court: see the documents associated with PA 2925-06/9 at fedcourt.gov.au/disclosurelog. This is despite the fact that Mr Belcher was a long serving registrar of the Federal Court (which is not only noted in the article published in the Australian, but also discernible from the lists of registrar published in the Federal Court's annual reports). Unlike Mr Belcher, Mr Luxton's and Ms Stride's names have been included in the list of employees promoted to the Senior Executive Service.

It is also clear that there was no "role review" of the National Judicial Registrar & District Registrar role because if that were the case, Mr Belcher would have been selected to fill a role classified at a lower classification. Moreover, Ms Vine Camp would not have certified the SES Band 1 selection process. There would have been no need to because Mr Belcher would have been selected to fill a non-SES role. That inconsistency cannot be explained away.

Also, I requested access to work level standards assessments as part of my request (see paragraph (d)). Had the National Judicial Registrar & District Registrar - QLD role been reevaluated for a lesser classification than the SES Band 1 classification that it had, then you would have provided me with work level standards assessments demonstrating that the National Judicial Registrar & District Registrar - QLD role had been reevaluated for a lesser classification. The fact that you have not even adverted to such a documents suggests that the position was never the subject of a re-evaluation.

Finally, what need would Ms McMullan, the person who conducted an investigation under the Public Interest Disclosure Act 2013 (Cth), have had to conclude that the National Judicial Registrar & District Registrar role was found suitable for a lesser classification than an SES Band 1 classification if Mr Belcher had been promoted to the Senior Executive Service (as to which, see article published on 10 February 2022 in the Australian)?

The context if further complicated by:

a) Justice Greenwood's public criticisms of Mr Soden and Ms Lagos, recorded in the article published in the Australian on 10 February 2022, conspiring to deny Mr Belcher lawful promotion to the Senior Executive Service;
b) Mr Soden's false claim that the Australian Public Service Commissioner's representative had a power of veto over the selection process, which Justice Greenwood dismissed, and which has been debunked on this website: see https://www.righttoknow.org.au/request/d... and https://www.righttoknow.org.au/request/d... and https://www.righttoknow.org.au/request/d... and
https://www.righttoknow.org.au/request/d...
c) claims that the the Australian Public Service Commissioner's representative threatened to use a putative power of veto when, in reality, the documentation (e.g. her certification under s 21 of the Australian Public Service Commissioner's Directions) does not support such a conclusion;
d) the fact that the Federal Court has refused to produce any documents relating to the "reconfiguration" of the SES Band 1 National Judicial Registrar & District Registrar - QLD vacancy to the “lower level”: see https://www.righttoknow.org.au/request/c...
e) the fact that Ms McMullan's PID investigation is now the subject of an investigation by the Commonwealth Ombudsman (see article published on page 3 of the Australian on 29 March 2022, "Spotlight shines back on watchdog"); and
f) the fact that an agency determination was prepared to alter Mr Belcher's salary without any progression in his classification to the Senior Executive Service.

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.

Where a document has been brought into existence with the express purpose of denying Mr Belcher lawful promotion to the Senior Executive Service so that the SES Band 1 position can be "taken elsewhere in the organisation" (those are Justice Greenwood's words), and so that Mr Belcher can be remunerated at a rate that an SES Band 1 employee would be remunerated while he is denied appointment to a Senior Executive Service Band 1 role, s 47E(c) cannot be relied on. That is because the document relates to the unlawful management of personnel by the Federal Court.

Put in broad terms, 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)) ...

For all of your reasoning, you do not with specificity identify how it is that granting access to the agency determination would, or could reasonably be expected to, have a substantial adverse effect of the management of personnel by the Commonwealth or the Federal Court. Your reasons are abstracted and vague.

In any event, even if you could identify how it is that the agency determination would, or could reasonably be expected to, have a substantial adverse effect of the management of personnel by the Commonwealth or the Federal Court, you would still have to overcome the issue of the document having been brought into existence for an unlawful purpose or end and how it is that s 47E(c) could be invoked for such a document. You have not done that. Nor have you referred to the context in which the agency determination came into existence, which informs whether you would be entitled to rely on s 47E(c).

For these reasons, your claims that s 47E(c) applies to the agency determination are without merit.

A2. s 47E(c) exemption - assessment of personnel

You claim that the agency determination is exempt because the document "clearly relate[s] to the 'assessment of personnel'" given that the document concerns the Court's recruitment processes, and because the agency determination "provides for remuneration for a particular employee in a manner that reflects the skills, knowledge, experience and attributes of that employee."

You claim that the granting access to the document would, or could reasonably be expected to, have a substantial adverse effect on the assessment of personnel by the Commonwealth or the Federal Court for eight reasons.

Your claim that the document relates to the "assessment of personnel" is false. That is because the document does not relate to the lawful assessment of personnel.

The context in which the agency determination came into existence is public information.

Murray Belcher applied for an SES Band 1 National Judicial Registrar & District Registrar vacancy. Murray Belcher was selected by a selection panel comprised of Sia Lagos, the current Chief Executive Officer and Principal Registrar of the Federal Court, David Pringle, the current Chief Executive Officer and Principal Registrar of Divisions 1 and 2 of the Federal Circuit and Family Court of Australia, and Andrea Jarratt, who was, at the time of the selection process, the Director of National Operations in the Federal Court: see https://www.righttoknow.org.au/request/s....

Kerryn Vine Camp, the Australian Public Service Commissioner's representative, certified the selection process as complying with the Public Service Act and with the Australian Public Service Commissioner's Directions 2016: see https://www.righttoknow.org.au/request/r....

In an article published in the Australian on 10 February 2022 (Top judge warned of registrar overhaul):

a) “Mr Soden had claimed [Mr Belcher], a man who had been at the court for many years, could not be given the original Senior Executive Service classification advertised because it would be vetoed by the APSC representative”;
b) Mr Soden told Justice Greenwood "there is a problem because the (APSC) has a veto on an SES appointments”;
c) Mr Belcher "ended up in a position lower than the SES classifications other state registrars were given”;
d) “To solve the problem, Warwick wants to downgrade the role from an SES position, avoid the APSC’s veto and appoint (him)”;
e) “Warwick’s advice that the APSC has a veto on appointment is wrong”;
f) “Justice Greenwood confirmed he had been told that the APSC had objected to the man’s appointment because he ‘might not be accommodating of planned changes to the management structure of the court’”;
g) “[Mr Belcher] was ultimately appointed to the role at the (lower level) configured by Mr Soden and Ms Lagos, no doubt in discussion with the APSC”; and
h) “A week after Justice Greenwood’s complaint about [Mr Belcher's] apparent demotion, an HR official wrote to the man to confirm they would use ‘an agency determination which varies your base salary’, giving him a pay rise.”

Despite being selected to fill an SES Band1 position by the selection committee and despite Ms Vine Camp certifying that process, Murray Belcher was not promoted to the Senior Executive Service.

That is clear because:

a) No promotion notification has been published or produced for Mr Belcher's "promotion" to the Senior Executive Service of the APS (unlike, for example, Mr Luxton's promotion, which was gazetted in the Public Service Gazette: see Public Service Gazette No PS43 - 25 October 2018, p 306, Promotion NN 10736921); and
b) Mr Belcher is not listed in the list of Senior Executive Service employees that is published on the disclosure log of the Federal Court: see the documents associated with PA 2925-06/9 at fedcourt.gov.au/disclosurelog. This is despite the fact that Mr Belcher was a long serving registrar of the Federal Court (which is not only noted in the article published in the Australian, but also discernible from the lists of registrar published in the Federal Court's annual reports). Unlike Mr Belcher, Mr Luxton's and Ms Stride's names have been included in the list of employees promoted to the Senior Executive Service.

It is also clear that there was no "role review" of the National Judicial Registrar & District Registrar role because if that were the case, Mr Belcher would have been selected to fill a role classified at a lower classification. Moreover, Ms Vine Camp would not have certified the SES Band 1 selection process. There would have been no need to because Mr Belcher would have been selected to fill a non-SES role.

Also, I requested access to work level standards assessments as part of my request (see paragraph (d)). Had the National Judicial Registrar & District Registrar - QLD role been reevaluated for a lesser classification than the SES Band 1 classification that it had, then you would have provided me with that document. The fact that you have not even adverted to such a documents suggests that the position was never the subject of a re-evaluation.

Finally, what need would Ms McMullan, the person who conducted an investigation under the Public Interest Disclosure Act 2013 (Cth), have had to conclude that the National Judicial Registrar & District Registrar role was found suitable for a lesser classification than an SES Band 1 classification if Mr Belcher had been promoted to the Senior Executive Service (as to which, see article published on 10 February 2022 in the Australian)?

The context if further complicated by:

a) Justice Greenwood's criticisms of Mr Soden and Ms Lagos, recorded in the article published in the Australian on 10 February 2022, conspiring to deny Mr Belcher lawful promotion to the Senior Executive Service;
b) Mr Soden's false claim that the Australian Public Service Commissioner's representative had a power of veto over the selection process, which Justice Greenwood dismissed, and which has been debunked on this website: see https://www.righttoknow.org.au/request/d... and https://www.righttoknow.org.au/request/d... and https://www.righttoknow.org.au/request/d... and
https://www.righttoknow.org.au/request/d...
c) claims that the the Australian Public Service Commissioner's representative threatened to use a putative power of veto when, in reality, the documentation (e.g. her certification under s 21 of the Australian Public Service Commissioner's Directions) does not support such a conclusion;
d) the fact that the Federal Court has refused to produce any documents relating to the "reconfiguration" of the SES Band 1 National Judicial Registrar & District Registrar - QLD vacancy to the “lower level”: see https://www.righttoknow.org.au/request/c...
e) the fact that Ms McMullan's PID investigation is now the subject of an investigation by the Commonwealth Ombudsman (see article published on page 3 of the Australian on 29 March 2022, "Spotlight shines back on watchdog"); and
f) the fact that an agency determination was prepared to alter Mr Belcher's salary without any progression in his classification to the Senior Executive Service.

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 “assessment of personnel” by the Commonwealth or an agency to extend to the unlawful assessment of personnel by the Commonwealth or an agency.

Where a document has been brought into existence with the express purpose of denying Mr Belcher lawful promotion to the Senior Executive Service so that the SES Band 1 position can be "taken elsewhere in the organisation" (those are Justice Greenwood's words), and so that Mr Belcher can be remunerated at a rate that an SES Band 1 employee would be remunerated while he is denied appointment to a Senior Executive Service Band 1 role, s 47E(c) cannot be relied on. That is because the document relates to the unlawful assessment of personnel by the Federal Court.

Put in broad terms, the assessment of personnel does not extend to the mismanagement or unlawful management 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)).

For all of your reasoning, you do not with specificity identify how it is that granting access to the agency determination would, or could reasonably be expected to, have a substantial adverse effect of the assessment of personnel by the Commonwealth or the Federal Court. Your reasons are abstracted and vague.

In any event, even if you could identify how it is that the agency determination would, or could reasonably be expected to, have a substantial adverse effect of the assessment of personnel by the Commonwealth or the Federal Court, you would still have to overcome the issue of the document having been brought into existence for an unlawful purpose or end and how it is that s 47E(c) could be invoked for such a document. You have not done that. Nor have you referred to the context in which the agency determination came into existence, which informs whether you would be entitled to rely on s 47E(c).

For these reasons, your claims that s 47E(c) applies to the agency determination are without merit.

A3. s 47E(d) exemption

You claim that the agency determination is exempt because the document relates to "efficient conduct of the operations of the Court, given that the [document] concerns recruitment processes which are essential to the proper and efficient operation of the Court."

You also claim that the agency determination contains information about Mr Belcher, who is a registrar, and that because registrars are critical to the Court's proper and efficient operations (because they perform important statutory functions and exercise judge delegated powers), the agency determination is conditionally exempt. In other words, you claim that the granting access to the agency determination would, or could reasonably be expected to, have a substantial adverse effect on the proper and efficient operations of the Federal Court.

Your claim that release of the agency determination would, or could reasonably be expected to, have a substantial adverse effect on the proper and efficient operations of the Federal Court is false. That is because the agency determination does not relate to the lawful operations of the Federal Court.

The context in which the agency determination came into existence is public information.

Murray Belcher applied for an SES Band 1 National Judicial Registrar & District Registrar vacancy. Murray Belcher was selected by a selection panel comprised of Sia Lagos, the current Chief Executive Officer and Principal Registrar of the Federal Court, David Pringle, the current Chief Executive Officer and Principal Registrar of Divisions 1 and 2 of the Federal Circuit and Family Court of Australia, and Andrea Jarratt, who was, at the time of the selection process, the Director of National Operations in the Federal Court: see https://www.righttoknow.org.au/request/s....

Kerryn Vine Camp, the Australian Public Service Commissioner's representative, certified the selection process as complying with the Public Service Act and with the Australian Public Service Commissioner's Directions 2016: see https://www.righttoknow.org.au/request/r....

In an article published in the Australian on 10 February 2022 (Top judge warned of registrar overhaul):

a) “Mr Soden had claimed [Mr Belcher], a man who had been at the court for many years, could not be given the original Senior Executive Service classification advertised because it would be vetoed by the APSC representative”;
b) Mr Soden told Justice Greenwood "there is a problem because the (APSC) has a veto on an SES appointments”;
c) Mr Belcher "ended up in a position lower than the SES classifications other state registrars were given”;
d) “To solve the problem, Warwick wants to downgrade the role from an SES position, avoid the APSC’s veto and appoint (him)”;
e) “Warwick’s advice that the APSC has a veto on appointment is wrong”;
f) “Justice Greenwood confirmed he had been told that the APSC had objected to the man’s appointment because he ‘might not be accommodating of planned changes to the management structure of the court’”;
g) “[Mr Belcher] was ultimately appointed to the role at the (lower level) configured by Mr Soden and Ms Lagos, no doubt in discussion with the APSC”; and
h) “A week after Justice Greenwood’s complaint about [Mr Belcher's] apparent demotion, an HR official wrote to the man to confirm they would use ‘an agency determination which varies your base salary’, giving him a pay rise.”

Despite being selected to fill an SES Band1 position by the selection committee and despite Ms Vine Camp certifying that process, Murray Belcher was not promoted to the Senior Executive Service.

That is clear because:

a) No promotion notification has been published or produced for Mr Belcher's "promotion" to the Senior Executive Service of the APS (unlike, for example, Mr Luxton's promotion to the role of National Judicial Registrar & District Registrar - VIC, which was gazetted in the Public Service Gazette: see Public Service Gazette No PS43 - 25 October 2018, p 306, Promotion NN 10736921); and
b) Mr Belcher is not listed in the list of Senior Executive Service employees that is published on the disclosure log of the Federal Court: see the documents associated with PA 2925-06/9 at fedcourt.gov.au/disclosurelog. This is despite the fact that Mr Belcher was a long serving registrar of the Federal Court (which is not only noted in the article published in the Australian, but also discernible from the lists of registrar published in the Federal Court's annual reports). Unlike Mr Belcher, Mr Luxton's and Ms Stride's names have been included in the list of employees promoted to the Senior Executive Service.

It is also clear that there was no "role review" of the National Judicial Registrar & District Registrar role because if that were the case, Mr Belcher would have been selected to fill a role classified at a lower classification. Moreover, Ms Vine Camp would not have certified the SES Band 1 selection process. There would have been no need to because Mr Belcher would have been selected to fill a non-SES role.

Also, I requested access to work level standards assessments as part of my request (see paragraph (d)). Had the National Judicial Registrar & District Registrar - QLD role been reevaluated for a lesser classification than the SES Band 1 classification that it had, then you would have provided me with work level standards assessments identifying the reclassification. The fact that you have not even adverted to such a documents suggests that the position was never the subject of a re-evaluation.

Finally, what need would Ms McMullan, the person who conducted an investigation under the Public Interest Disclosure Act 2013 (Cth), have had to conclude that the National Judicial Registrar & District Registrar role was found suitable for a lesser classification than an SES Band 1 classification if Mr Belcher had been promoted to the Senior Executive Service (as to which, see article published on 10 February 2022 in the Australian)?

The context if further complicated by:

a) Justice Greenwood's public criticisms of Mr Soden and Ms Lagos, recorded in the article published in the Australian on 10 February 2022, conspiring to deny Mr Belcher lawful promotion to the Senior Executive Service;
b) Mr Soden's false claim that the Australian Public Service Commissioner's representative had a power of veto over the selection process, which Justice Greenwood dismissed, and which has been debunked on this website: see https://www.righttoknow.org.au/request/d... and https://www.righttoknow.org.au/request/d... and https://www.righttoknow.org.au/request/d... and
https://www.righttoknow.org.au/request/d...
c) claims that the the Australian Public Service Commissioner's representative threatened to use a putative power of veto when, in reality, the documentation (e.g. her certification under s 21 of the Australian Public Service Commissioner's Directions) does not support such a conclusion;
d) the fact that the Federal Court has refused to produce any documents relating to the "reconfiguration" of the SES Band 1 National Judicial Registrar & District Registrar - QLD vacancy to the “lower level”: see https://www.righttoknow.org.au/request/c...
e) the fact that Ms McMullan's PID investigation is now the subject of an investigation by the Commonwealth Ombudsman (see article published on page 3 of the Australian on 29 March 2022, "Spotlight shines back on watchdog"); and
f) the fact that an agency determination was prepared to alter Mr Belcher's salary without any progression in his classification to the Senior Executive Service.

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 “lawful and efficient operations of an agency” to extend to the unlawful operations of an agency. You acknowledge this because you refer to paragraph 6.123 of the FOI Guidelines, which provide:

The predicted effect must bear on the agency's "proper and efficient" operations, that is, the agency is undertaking its expected activities in an expected manner. 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.

Put in broad terms, the proper and efficient operations of the Federal Court do not extend to the unlawful operations of the Court, especially where those operations are to cheat the number of capped SES positions available to the Court and to deny a meritorious candidate, who was selected on his merits for promotion to the SES, career progression to the Senior Executive Service of the APS. Documents disclosing unlawful operations of the Federal Court cannot be conditionally exempt under s 47E(c) of the FOI Act because s 47E(s) only extends to documents relating to the lawful, and proper and efficient, operations of the Federal Court.

To interpret the word “proper” to extend to “unlawful operations” 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)). Such an interpretation would not accord with the Information Commissioner's Guidelines, which Ms Hammerton Cole is required to have regard to under s 93A of the FOI Act.

To interpret the word “efficient” to extend to “unlawful operations” 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)). Such an interpretation would not accord with the Information Commissioner's Guidelines, which Ms Hammerton Cole is required to have regard to under s 93A of the FOI Act.

The agency determination was brought into existence for an unlawful purpose. It was brought into existence to deny Mr Belcher lawful promotion to the Senior Executive Service of the APS after he was selected by a selection committee on his merits, and after that selection process was certified by the Australian Public Service Commissioner's representative as complying with the merit selection criteria of the Public Service Act and the Australian Public Service Commissioner's Directions 2016. It was brought into existence to provide Mr Belcher with higher remuneration but to deny him what he was entitled to on his merits - an SES Band 1 position.

Where a document has been brought into existence with the express purpose of denying Mr Belcher lawful promotion to the Senior Executive Service so that the SES Band 1 position can be "taken elsewhere in the organisation" (those are Justice Greenwood's words), and so that Mr Belcher could receive the remuneration ordinarily available to an SES Band 1 employee while being denied his right to appointment to a Senior Executive Service Band 1 role, s 47E(d) cannot be relied on.

For these reasons, your claims that s 47E(d) applies to the agency determination are without merit.

A4. Section 47F conditional exemption

I accept that the document may contain Mr Belcher's personal information.

For the purposes of internal review, the reviewer is more than welcome to redact Mr Belcher's email address, residential and postal addresses, telephone numbers, bank account details and hid signature. Please do not redact his name, the date on which the agency determination came into effect, the terms of the agency determination or the signatures of either Mr Warwick Soden or Ms Sia Lagos, whose signatures are publicly accessible (see the annual reports of the Federal Court).

For reasons of expediency, which I will set out below, I am also prepared to accept a redaction to dollar figures set out in the terms of agency determination.

You claim that a conditional exemption under s 47A applies to the agency determination because:

a) it details the precise Mr Belcher's precise salary, which is not available from publicly accessible sources;
b) it details Mr Belcher's classification level, which you claim is personal information;
c) disclosure of the agency determination could create stress and anxiety for Mr Belcher; and
d) disclosure of the agency determination could cause tension and disharmony in the workplace by permitting comparisons between former and/or current employees.

While I question whether (b) is personal information for the purposes of the FOI Act, I am prepared to tentatively accept the points raised in paragraphs (a), (c) and (d) (which is not to say that I accept that the public interest requires you to deny access to the agency determination). Nevertheless, I do not accept that, on balance, it would be in the public interest to deny access to the agency determination with:

i. Mr Belcher's salary details redacted; or
ii. Mr Belcher's classification level redacted.

In the context of your public interest assessment, you note:

Having regard to all of the relevant factors, I accept that disclosure of the documents found might broadly promote the objects of the FOI Act by providing to the Australian community access to information held by the Government, increasing knowledge about Government activities, and enhaving the scrutiny of Government decision-making.

In relation to the disclosure of the Agency Determination, I also accept that disclosure might promote oversight of public expenditure. However, I consider that disclosure of the remuneration for one particular employee would not serve the public interest any more than the general remuneration details that are publicly accessible in the Court Annual Report. Little weight should, therefore, be given to this factor ...

I am unable to see how information regarding a particular Registrar's name, their salary & classification level ... all of which are personal and unique to the people concerned - would be of serious concern or benefit to the public. Disclosure of personal information of that nature would, in my opinion, merely serve to satisfy the curiosity of others.

I disagree.

The reason why you cannot see how information regarding a particular Registrar's name (i.e. Murray Belcher), his salary & classification level ... all of which are personal and unique to the people concerned - would be of serious concern or benefit to the public is because you have adopted a position of willfil blindness. You have deliberately failed to identify the context in which the agency determination was brought into existence. You have deliberately withheld contextual information knowing that it would undermine you conclusions. You know that Justice Greenwood, the third most senior judge in the Federal Court, privately and publicly took issue with the selection process that saw Murray Belcher denied lawful promotion to the Senior Executive Service of the APS even though he was selected to fill an SES Band 1 vacancy on his merits. How dare you make light of Justice Greenwood's concerns? How dare you make light of the unlawful conduct engaged in by Warwick Soden and Sia Lagos to deny Murray Belcher lawful promotion to the Senior Executive Service?

Let me explain why it is in the public interest to know how much money was provided to Mr Belcher. As you have rightly pointed out, registrars of the Federal Court are directed to exercise the judicial power of the Commonwealth as invested in the Federal Court pursuant to directions from judges under the Harris v Caladine doctrine: see HARRIS v CALADINE (1991) 172 CLR 84.

It is not out of personal curiosity that I would like to know how much money Mr Belcher was offered. It is in the public interest to know how much Mr Belcher was paid because that figure represents how much money Mr Belcher was prepared to accept to acquiesce to the unlawful ends that Mr Soden and Ms Lagos, among others, had subjected him to. I do not doubt that Mr Belcher was under considerable pressure by Ms Lagos and Mr Soden. Justice Greenwood's involvement in the matter demonstrates how serious this issue had become. I suspect Mr Belcher would have confided in Justice Greenwood. But the fact is that Mr Belcher acquiesced to unlawful practices and was paid an amount of money under an agency determination to acquiesce. His having accepted the terms of an agency determination that was brought about for an unlawful purpose goes to Mr Belcher's integrity. It goes to the integrity of a man who has been directed to exercise the judicial power of the Commonwealth as invested in the Federal Court pursuant to directions from judges under the Harris v Caladine doctrine. To suggest that the integrity of an official directed to exercise the judicial power of the Commonwealth as invested in the Federal Court pursuant to directions from judges under the Harris v Caladine doctrine is anything other than a matter in the interest of the public is perverse. That you cannot see that is deeply concerning.

That:

a) Mr Belcher might be embarrassed by the disclosure of that information, causing him stress or angst;
b) the disclosure may be a source of embarrassment for Mr Soden or Ms Lagos, causing them stress or angst; or
c) the disclosure may cause embarrassment to the management of the Court,

are not to the point and, with respect, have no relevance to the assessment of the public interest.

That being said, I do not want to cause Mr Belcher any more grief. For the sake of expediency, I would be content to receive a copy of the agency determination with all dollar figures redacted. That being said, I will not accept a copy of the agency determination with the terms of the determination redacted. Nor will I accept a copy of the agency determination with information about Mr Belcher's classification (i.e. the classification assigned to Mr Belcher for the purposes of rule 6 of the Public Service Classification Rules 2000) redacted.

With respect to disclosure of information about Mr Belcher's classification - what prejudice could there be, to Mr Belcher, the management of the Court, or anybody else, if the classification that he was allocated under rule 6 of the Public Service Classification Rules 2000 (Cth) matches the classification of the SES Band 1 National Judicial Registrar & District Registrar - QLD role? You have already provided the vacancy notification, which explicitly states that the vacancy had an SES Band 1 classification. You have already provided the position description for the SES Band 1 National Judicial Registrar & District Registrar - QLD role, which identifies the classification of the vacancy. I already have a copy of the selection panel's selection report which clearly identifies the role as an SES Band 1 role: see https://www.righttoknow.org.au/request/s....

Disclosure of a document that lists the lawful classification that Mr Belcher was assigned under rule 6 of the Public Service Classification Rules 2000 would not prejudice Mr Belcher (or anybody else) had the assignment under rule 6 been lawful because the assignment under rule 6 would match the publicly known classifiation of the SES Band 1 National Judicial Registrar & District Registrar - QLD role. But you and I (and anybody who read the article published in the Australian on 10 February 2022) know that Mr Belcher was assigned a classification other than what he was enttiled to on his merits and lawfully should have been assigned. It is the reason Justice Greenwood sent a memo noting his deep contempt for the way Mr Belcher was being treated. It is the reason why an internal disclosure was made to the Office of the Commonwealth Ombudsman under the Public Interest Disclosure Act 2013, and why the Office of the Commonwealth Ombudsman decided to allocate the disclsoure to the Australian Public Service Commission, rather than to the home agency as it would be required to do according to principles under subsection 43(3) of the PID Act: see https://www.righttoknow.org.au/request/r.... But in providing your reasons, you have proceeded on the unarticulated premise that the classification assigned to Mr Belcher was lawful when there is considerable evidence pointing to the fact that the assignment of the classification was anything other than lawful. The reason why you cannot see how information regarding Mr Belcher's classification level would be of serious concern or benefit to the public is because you have adopted a position of willfil blindness. You have deliberately failed to identify the context in which the agency determination was brought into existence. You have deliberately witheld contextual information knowing that it would undermine you conclusions. For you to suggest that it is in the public interest to withhold access to a document that discloses the unlawful conduct of senior members of the management of the Federal Court betrays your partisan approach to a statutory function that requires impartiality. It also betrays you failure to correctly apply the public interest assessment under the FOI Act. Your objectivity and candour have been called into question on this website: see, for example, https://www.righttoknow.org.au/request/c... and https://www.righttoknow.org.au/request/r... https://www.righttoknow.org.au/request/s....

I find it difficult to disagree with assessments about the objectivity and candour that you bring to your statutory function under the FOI Act.

For the reasons set out, the public interest assessment that you have conducted with respect to the release of the agency determination is without merit.

B. Email correspondence regarding the agency determination

B1. section 47C exemption

You claim that the email correspondence regarding the agency determination is conditionally exempt under s 47C because the document records "exchanges of advice, opinions, proposals and interim decisions or deliberations in the process of engaging or promoting a public servant." You also claim that the document is "preparatory and ancillary to the formal engagement of [Mr Belcher], which took the form of an Agency Determination between the employee and the Court." With respect, the Agency Determination is not between Mr Belcher and the Court; it is between Mr Belcher and the Commonwealth, with the Agency Head or his or her representative binding the Commonwealth.

In any event, you have failed to address the context in which the email correspondence came into existence. I have already alluded to the unlawful purpose for which the agency determination was created and any emails furthering that unlawful purpose are also affected by unlawfulness.

Any deliberations entered into and recorded in that email were for unlawful ends.

Section 47C(1) provides:

A document is conditionally exempt if its disclosure under this Act would disclose matter (deliberative matter) in the nature of, or relating to, opinion, advice or recommendation obtained, prepared or recorded, or consultation or deliberation that has taken place, in the course of, or for the purposes of, the deliberative processes involved in the functions of ... any agency.

As I pointed out above:

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 "deliberative processes involved in the functions of an agency" extends to the unlawful functions of an agency.

Documents disclosing deliberative processes involved in the functions of an agency where those documents disclose unlawful conduct cannot be conditionally exempt under s 47C of the FOI Act because s 47C only extends to documents relating to the lawful functions of an agency. To interpret the "functions of an agency" to extend to “unlawful functions” 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)).

Therefore s 47C has no application to the email correspondence from the person in the human resources department regarding the agency determination. Accordingly there is no scope for a public interest assessment under s 11A of the Act.

B2. s 47E(c) exemption - management of personnel

You claim that the email correspondence regarding the agency determination is exempt because the document "clearly relate[s] to the 'management of personnel'" given that the document concerns the Court's recruitment processes.

You claim that the granting access to the document would have a substantial adverse effect on the management of personnel by the Commonwealth or the Federal Court for eight reasons.

You claim that the document relates to the "management of personnel" is false. That is because the document does not relate to the lawful management of personnel.

The context in which the email relating to the agency determination came into existence is public information.

Murray Belcher applied for a SES Band 1 National Judicial Registrar & District Registrar vacancy. Murray Belcher was selected by a selection panel comprised of Sia Lagos, the current Chief Executive Officer and Principal Registrar of the Federal Court, David Pringle, the current Chief Executive Officer and Principal Registrar of Divisions 1 and 2 of the Federal Circuit and Family Court of Australia, and Andrea Jarratt, who was, at the time of the selection process, the Director of National Operations in the Federal Court: see https://www.righttoknow.org.au/request/s....

Kerryn Vine Camp, the Australian Public Service Commissioner's representative, certified the selection process as complying with the Public Service Act and with the Australian Public Service Commissioner's Directions 2016: see https://www.righttoknow.org.au/request/r....

In an article published in the Australian on 10 February 2022 (Top judge warned of registrar overhaul):

a) “Mr Soden had claimed [Mr Belcher], a man who had been at the court for many years, could not be given the original Senior Executive Service classification advertised because it would be vetoed by the APSC representative”;
b) Mr Soden told Justice Greenwood "there is a problem because the (APSC) has a veto on an SES appointments”;
c) Mr Belcher "ended up in a position lower than the SES classifications other state registrars were given”;
d) “To solve the problem, Warwick wants to downgrade the role from an SES position, avoid the APSC’s veto and appoint (him)”;
e) “Warwick’s advice that the APSC has a veto on appointment is wrong”;
f) “Justice Greenwood confirmed he had been told that the APSC had objected to the man’s appointment because he ‘might not be accommodating of planned changes to the management structure of the court’”;
g) “[Mr Belcher] was ultimately appointed to the role at the (lower level) configured by Mr Soden and Ms Lagos, no doubt in discussion with the APSC”; and
h) “A week after Justice Greenwood’s complaint about [Mr Belcher's] apparent demotion, an HR official wrote to the man to confirm they would use ‘an agency determination which varies your base salary’, giving him a pay rise.”

Despite being selected to fill an SES Band1 position by the selection committee and despite Ms Vine Camp certifying that process, Murray Belcher was not promoted to the Senior Executive Service.

That is clear because:

a) No promotion notification has been published or produced for Mr Belcher's "promotion" to the Senior Executive Service of the APS (unlike, for example, Mr Luxton's promotion to the National Judicial Registrar & District Registrar - VIC role, which was gazetted in the Public Service Gazette: see Public Service Gazette No PS43 - 25 October 2018, p 306, Promotion NN 10736921); and
b) Mr Belcher is not listed in the list of Senior Executive Service employees that is published on the disclosure log of the Federal Court: see the documents associated with PA 2925-06/9 at fedcourt.gov.au/disclosurelog. This is despite the fact that Mr Belcher was a long serving registrar of the Federal Court (which is not only noted in the article published in the Australian, but also discernible from the lists of registrar published in the Federal Court's annual reports). Unlike Mr Belcher, Mr Luxton's and Ms Stride's names have been included in the list of employees promoted to the Senior Executive Service.

It is also clear that there was no "role review" of the National Judicial Registrar & District Registrar role because if that were the case, Mr Belcher would have been selected to fill a role classified at a lower classification. Moreover, Ms Vine Camp would not have certified the SES Band 1 selection process. There would have been no need to because Mr Belcher would have been selected to fill a non-SES role.

Also, I requested access to work level standards assessments as part of my request (see paragraph (d)). Had the National Judicial Registrar & District Registrar - QLD role been reevaluated for a lesser classification than the SES Band 1 classification that it had, then you would have provided me with work level standards assessments identifying that reclassification. The fact that you have not even adverted to such a documents suggests that the position was never the subject of a re-evaluation.

Finally, what need would Ms McMullan, the person who conducted an investigation under the Public Interest Disclosure Act 2013 (Cth), have had to conclude that the National Judicial Registrar & District Registrar role was found suitable for a lesser classification than an SES Band 1 classification if Mr Belcher had been promoted to the Senior Executive Service (as to which, see article published on 10 February 2022 in the Australian)?

The context if further complicated by:

a) Justice Greenwood's public criticisms of Mr Soden and Ms Lagos, recorded in the article published in the Australian on 10 February 2022, conspiring to deny Mr Belcher lawful promotion to the Senior Executive Service;
b) Mr Soden's false claim that the Australian Public Service Commissioner's representative had a power of veto over the selection process, which Justice Greenwood dismissed, and which has been debunked on this website: see https://www.righttoknow.org.au/request/d... and https://www.righttoknow.org.au/request/d... and https://www.righttoknow.org.au/request/d... and https://www.righttoknow.org.au/request/d...
c) claims that the the Australian Public Service Commissioner's representative threatened to use a putative power of veto when, in reality, the documentation (e.g. her certification under s 21 of the Australian Public Service Commissioner's Directions) does not support such a conclusion;
d) the fact that the Federal Court has refused to produce any documents relating to the "reconfiguration" of the SES Band 1 National Judicial Registrar & District Registrar - QLD vacancy to the “lower level”: see https://www.righttoknow.org.au/request/c...
e) the fact that Ms McMullan's PID investigation is now the subject of an investigation by the Commonwealth Ombudsman (see article published on page 3 of the Australian on 29 March 2022, "Spotlight shines back on watchdog"); and
f) the fact that an agency determination was prepared to alter Mr Belcher's salary without any progression in his classification to the Senior Executive Service.

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.

Where a document has been brought into existence with the express purpose of denying Mr Belcher lawful promotion to the Senior Executive Service so that the SES Band 1 position can be "taken elsewhere in the organisation" (those are Justice Greenwood's words), and so that Mr Belcher can be remunerated at a rate that an SES Band 1 employee would receive while he is denied lawful appointment to a Senior Executive Service Band 1 role on his merits, s 47E(c) cannot be relied on. That is because the document relates to the unlawful management of personnel by the Federal Court.

Put in broad terms, 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)) ...

For all of your reasoning, you do not actually identify with specificity how it is that the email would, or could reasonably be expected to, have a substantial adverse effect of the management of personnel by the Commonwealth or the Federal Court.

In any event, even if you could identify how it is that the email relating to the agency determination would, or could reasonably be expected to, have a substantial adverse effect of the management of personnel by the Commonwealth or the Federal Court, you would still have to overcome the issue of the document having been brought into existence for an unlawful purpose or end and how it is that s 47E(c) could be invoked for such a document. You have not done that. Nor have you referred to the context in which the agency determination came into existence, which informs whether you would be entitled to rely on s 47E(c).

For these reasons, your claims that s 47E(c) applies to the agency determination are without merit.

B3. s 47E(c) exemption - assessment of personnel

You claim that the email relating to the agency determination is exempt because the document "clearly relate[s] to the 'assessment of personnel'" given that the document concerns the Court's recruitment processes, and because the agency determination "provides for remuneration for a particular employee in a manner that reflects the skills, knowledge, experience and attributes of that employee."

You claim that the granting access to the document would, or could reasonably be expected to, have a substantial adverse effect on the assessment of personnel by the Commonwealth or the Federal Court for eight reasons.

Your claim that the document relates to the "assessment of personnel" is false. That is because the document does not relate to the lawful assessment of personnel.

The context in which the email relating to the agency determination came into existence is public information.

Murray Belcher applied for a SES Band 1 National Judicial Registrar & District Registrar vacancy. Murray Belcher was selected by a selection panel comprised of Sia Lagos, the current Chief Executive Officer and Principal Registrar of the Federal Court, David Pringle, the current Chief Executive Officer and Principal Registrar of Divisions 1 and 2 of the Federal Circuit and Family Court of Australia, and Andrea Jarratt, who was, at the time of the selection process, the Director of National Operations in the Federal Court: see https://www.righttoknow.org.au/request/s....

Kerryn Vine Camp, the Australian Public Service Commissioner's representative, certified the selection process as complying with the Public Service Act and with the Australian Public Service Commissioner's Directions 2016: see https://www.righttoknow.org.au/request/r....

In an article published in the Australian on 10 February 2022 (Top judge warned of registrar overhaul):

a) “Mr Soden had claimed [Mr Belcher], a man who had been at the court for many years, could not be given the original Senior Executive Service classification advertised because it would be vetoed by the APSC representative”;
b) Mr Soden told Justice Greenwood "there is a problem because the (APSC) has a veto on an SES appointments”;
c) Mr Belcher "ended up in a position lower than the SES classifications other state registrars were given”;
d) “To solve the problem, Warwick wants to downgrade the role from an SES position, avoid the APSC’s veto and appoint (him)”;
e) “Warwick’s advice that the APSC has a veto on appointment is wrong”;
f) “Justice Greenwood confirmed he had been told that the APSC had objected to the man’s appointment because he ‘might not be accommodating of planned changes to the management structure of the court’”;
g) “[Mr Belcher] was ultimately appointed to the role at the (lower level) configured by Mr Soden and Ms Lagos, no doubt in discussion with the APSC”; and
h) “A week after Justice Greenwood’s complaint about [Mr Belcher's] apparent demotion, an HR official wrote to the man to confirm they would use ‘an agency determination which varies your base salary’, giving him a pay rise.”

Despite being selected on his merits to fill an SES Band1 position by the selection committee and despite Ms Vine Camp certifying that process, Murray Belcher was not promoted to the Senior Executive Service.

That is clear because:

a) No promotion notification has been published or produced for Mr Belcher's "promotion" to the Senior Executive Service of the APS (unlike, for example, Mr Luxton's promotion to the National Judicial Registrar & District Registrar - VIC role, which was gazetted in the Public Service Gazette: see Public Service Gazette No PS43 - 25 October 2018, p 306, Promotion NN 10736921); and
b) Mr Belcher is not listed in the list of Senior Executive Service employees that is published on the disclosure log of the Federal Court: see the documents associated with PA 2925-06/9 at fedcourt.gov.au/disclosurelog. This is despite the fact that Mr Belcher was a long serving registrar of the Federal Court (which is not only noted in the article published in the Australian, but also discernible from the lists of registrar published in the Federal Court's annual reports). Unlike Mr Belcher, Mr Luxton's and Ms Stride's names have been included in the list of employees promoted to the Senior Executive Service.

It is also clear that there was no "role review" of the National Judicial Registrar & District Registrar role because if that were the case, Mr Belcher would have been selected to fill a role classified at a lower classification. Moreover, Ms Vine Camp would not have certified the SES Band 1 selection process. There would have been no need to because Mr Belcher would have been selected to fill a non-SES role.

Also, I requested access to work level standards assessments as part of my request (see paragraph (d)). Had the National Judicial Registrar & District Registrar - QLD role been reevaluated for a lesser classification than the SES Band 1 classification that it had, then you would have provided me with that document. The fact that you have not even adverted to such a document suggests that the position was never the subject of a re-evaluation.

Finally, what need would Ms McMullan, the person who conducted an investigation under the Public Interest Disclosure Act 2013 (Cth), have had to conclude that the National Judicial Registrar & District Registrar role was found suitable for a lesser classification than an SES Band 1 classification if Mr Belcher had been promoted to the Senior Executive Service (as to which, see article published on 10 February 2022 in the Australian)?

The context if further complicated by:

a) Justice Greenwood's public criticisms of Mr Soden and Ms Lagos, recorded in the article published in the Australian on 10 February 2022, conspiring to deny Mr Belcher lawful promotion to the Senior Executive Service;
b) Mr Soden's false claim that the Australian Public Service Commissioner's representative had a power of veto over the selection process, which Justice Greenwood dismissed, and which has been debunked on this website: see https://www.righttoknow.org.au/request/d... and https://www.righttoknow.org.au/request/d... and https://www.righttoknow.org.au/request/d... and https://www.righttoknow.org.au/request/d...
c) claims that the the Australian Public Service Commissioner's representative threatened to use a putative power of veto when, in reality, the documentation (e.g. her certification under s 21 of the Australian Public Service Commissioner's Directions) does not support such a conclusion;
d) the fact that the Federal Court has refused to produce any documents relating to the "reconfiguration" of the SES Band 1 National Judicial Registrar & District Registrar - QLD vacancy to the “lower level”: see https://www.righttoknow.org.au/request/c...
e) the fact that Ms McMullan's PID investigation is now the subject of an investigation by the Commonwealth Ombudsman (see article published on page 3 of the Australian on 29 March 2022, "Spotlight shines back on watchdog"); and
f) the fact that an agency determination was prepared to alter Mr Belcher's salary without any progression in his classification to the Senior Executive Service.

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 “assessment of personnel” by the Commonwealth or an agency to extend to the unlawful assessment of personnel by the Commonwealth or an agency.

Where a document has been brought into existence with the express purpose of denying Mr Belcher lawful promotion to the Senior Executive Service so that the SES Band 1 position can be "taken elsewhere in the organisation" (those are Justice Greenwood's words), and so that Mr Belcher can be remunerated at a rate that an SES Band 1 employee would receive while he is denied lawful appointment to a Senior Executive Service Band 1 role on his merits, s 47E(c) cannot be relied on. That is because the document relates to the unlawful assessment of personnel by the Federal Court.

Put in broad terms, the assessment of personnel does not extend to the mismanagement or unlawful management 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)).

For all of your reasoning, you do not identify with specificity how it is that a document that the email would, or could reasonably be expected to, have a substantial adverse effect of the assessment of personnel by the Commonwealth or the Federal Court.

In any event, even if you could identify how it is that the email relating to the agency determination would, or could reasonably be expected to, have a substantial adverse effect of the assessment of personnel by the Commonwealth or the Federal Court, you would still have to overcome the issue of the document having been brought into existence for an unlawful purpose or end and how it is that s 47E(c) could be invoked for such a document. You have not done that. Nor have you referred to the context in which the agency determination came into existence, which informs whether you would be entitled to rely on s 47E(c).

For these reasons, your claims that s 47E(c) applies to the email relating to the agency determination are without merit.

B4. s 47E(d) exemption

You claim that the email relating to the agency determination is exempt because the document relates to "efficient conduct of the operations of the Court, given that the [document] concerns recruitment processes which are essential to the proper and efficient operation of the Court."

You also claim that the email relating to the agency determination contains information about Mr Belcher, who is a registrar, and that because registrars are critical to the Court's proper and efficient operations (because they perform important statutory functions and exercise judge delegated powers), the email relating to the agency determination is conditionally exempt. In other words, you claim that the granting access to the email would, or could reasonably be expected to, have a substantial adverse effect on the proper and efficient operations of the Federal Court.

Your claim that release of the email would, or could reasonably be expected to, have a substantial adverse effect on the proper and efficient operations of the Federal Court is false. That is because the document does not relate to the lawful operations of the Federal Court.

The context in which the email came into existence is public information.

Murray Belcher applied for a SES Band 1 National Judicial Registrar & District Registrar vacancy. Murray Belcher was selected by a selection panel comprised of Sia Lagos, the current Chief Executive Officer and Principal Registrar of the Federal Court, David Pringle, the current Chief Executive Officer and Principal Registrar of Divisions 1 and 2 of the Federal Circuit and Family Court of Australia, and Andrea Jarratt, who was, at the time of the selection process, the Director of National Operations in the Federal Court: see https://www.righttoknow.org.au/request/s....

Kerryn Vine Camp, the Australian Public Service Commissioner's representative, certified the selection process as complying with the Public Service Act and with the Australian Public Service Commissioner's Directions 2016: see https://www.righttoknow.org.au/request/r....

In an article published in the Australian on 10 February 2022 (Top judge warned of registrar overhaul):

a) “Mr Soden had claimed [Mr Belcher], a man who had been at the court for many years, could not be given the original Senior Executive Service classification advertised because it would be vetoed by the APSC representative”;
b) Mr Soden told Justice Greenwood "there is a problem because the (APSC) has a veto on an SES appointments”;
c) Mr Belcher "ended up in a position lower than the SES classifications other state registrars were given”;
d) “To solve the problem, Warwick wants to downgrade the role from an SES position, avoid the APSC’s veto and appoint (him)”;
e) “Warwick’s advice that the APSC has a veto on appointment is wrong”;
f) “Justice Greenwood confirmed he had been told that the APSC had objected to the man’s appointment because he ‘might not be accommodating of planned changes to the management structure of the court’”;
g) “[Mr Belcher] was ultimately appointed to the role at the (lower level) configured by Mr Soden and Ms Lagos, no doubt in discussion with the APSC”; and
h) “A week after Justice Greenwood’s complaint about [Mr Belcher's] apparent demotion, an HR official wrote to the man to confirm they would use ‘an agency determination which varies your base salary’, giving him a pay rise.”

Despite being selected to fill an SES Band1 position by the selection committee on his merits and despite Ms Vine Camp certifying that process, Murray Belcher was not promoted to the Senior Executive Service.

That is clear because:

a) No promotion notification has been published or produced for Mr Belcher's "promotion" to the Senior Executive Service of the APS (unlike, for example, Mr Luxton's promotion, which was gazetted in the Public Service Gazette: see Public Service Gazette No PS43 - 25 October 2018, p 306, Promotion NN 10736921); and
b) Mr Belcher is not listed in the list of Senior Executive Service employees that is published on the disclosure log of the Federal Court: see the documents associated with PA 2925-06/9 at fedcourt.gov.au/disclosurelog. This is despite the fact that Mr Belcher was a long serving registrar of the Federal Court (which is not only noted in the article published in the Australian, but also discernible from the lists of registrar published in the Federal Court's annual reports). Unlike Mr Belcher, Mr Luxton's and Ms Stride's names have been included in the list of employees promoted to the Senior Executive Service.

It is also clear that there was no "role review" of the National Judicial Registrar & District Registrar role because if that were the case, Mr Belcher would have been selected to fill a role classified at a lower classification. Moreover, Ms Vine Camp would not have certified the SES Band 1 selection process. There would have been no need to because Mr Belcher would have been selected to fill a non-SES role.

Also, I requested access to work level standards assessments as part of my request (see paragraph (d)). Had the National Judicial Registrar & District Registrar - QLD role been reevaluated for a lesser classification than the SES Band 1 classification that it had, then you would have provided me with that document. The fact that you have not even adverted to such a document suggests that the position was never the subject of a re-evaluation.

Finally, what need would Ms McMullan, the person who conducted an investigation under the Public Interest Disclosure Act 2013 (Cth), have had to conclude that the National Judicial Registrar & District Registrar role was found suitable for a lesser classification than an SES Band 1 classification if Mr Belcher had been promoted to the Senior Executive Service (as to which, see article published on 10 February 2022 in the Australian)?

The context if further complicated by:

a) Justice Greenwood's criticisms of Mr Soden and Ms Lagos, recorded in the article published in the Australian on 10 February 2022, conspiring to deny Mr Belcher lawful promotion to the Senior Executive Service;
b) Mr Soden's false claim that the Australian Public Service Commissioner's representative had a power of veto over the selection process, which Justice Greenwood dismissed, and which has been debunked on this website: see https://www.righttoknow.org.au/request/d... and https://www.righttoknow.org.au/request/d... and https://www.righttoknow.org.au/request/d... and https://www.righttoknow.org.au/request/d...
c) claims that the the Australian Public Service Commissioner's representative threatened to use a putative power of veto when, in reality, the documentation (e.g. her certification under s 21 of the Australian Public Service Commissioner's Directions) does not support such a conclusion;
d) the fact that the Federal Court has refused to produce any documents relating to the "reconfiguration" of the SES Band 1 National Judicial Registrar & District Registrar - QLD vacancy to the “lower level”: see https://www.righttoknow.org.au/request/c...
e) the fact that Ms McMullan's PID investigation is now the subject of an investigation by the Commonwealth Ombudsman (see article published on page 3 of the Australian on 29 March 2022, "Spotlight shines back on watchdog"); and
f) the fact that an agency determination was prepared to alter Mr Belcher's salary without any progression in his classification to the Senior Executive Service.

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 “lawful and efficient operations of an agency” to extend to the unlawful operations of an agency. You acknowledge this because you refer to paragraph 6.123 of the FOI Guidelines, which provide:

The predicted effect must bear on the agency's "proper and efficient" operations, that is, the agency is undertaking its expected activities in an expected manner. 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.

Put in broad terms, the proper and efficinet operations of the Federal Court do not extend to the unlawful operations of the Court, especially where those operations are to cheat the number of capped SES positions available to the Court and to deny a meritorious candidate, who was selected on his merits for promotion to the SES, career progression to the Senior Executive Service of the APS. Documents disclosing unlawful operations of the Federal Court cannot be conditionally exempt under s 47E(c) of the FOI Act because s 47E(s) only extends to documents relating to the lawful, and proper and efficient, operations of the Federal Court.

To interpret the word “proper” to extend to “unlawful operations” 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)). Such an interpretation would not accord with the Information Commissioner's Guidelines, which Ms Hammerton Cole is required to have regard to under s 93A of the FOI Act.

To interpret the word “efficient” to extend to “unlawful operations” 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)). Such an interpretation would not accord with the Information Commissioner's Guidelines, which Ms Hammerton Cole is required to have regard to under s 93A of the FOI Act.

The email was brought into existence for an unlawful purpose. It was brought into existence to deny Mr Belcher lawful promotion to the Senior Executive Service of the APS after he was selected by a selection committee on his merits, and after that selection process was certified by the Australian Public Service Commissioner's representative as complying with the merit selection criteria of the Public Service Act and the Australian Public Service Commissioner's Directions 2016. It was brought into existence to provide Mr Belcher with higher remuneration but to deny him what he was entitled to on his merits - an SES Band 1 position. It was brought into existence to effect an unlawful purpose after Mr Belcher had lawfully been selected for promotion to the Senior Executive Service, on his merits.

Where a document has been brought into existence with the express purpose of denying Mr Belcher lawful promotion to the Senior Executive Service so that the SES Band 1 position can be "taken elsewhere in the organisation" (those are Justice Greenwood's words), and so that Mr Belcher can be remunerated at a rate that an SES Band 1 employee would receive, while he is denied appointment to a Senior Executive Service Band 1 role, s 47E(d) cannot be relied on. That is because the document relates to the unlawful assessment of personnel by the Federal Court.

For these reasons, your claims that s 47E(d) applies to the agency determination are without merit.

B5. Section 47F conditional exemption

Having not seen the email, I cannot be sure that it contains personal information but I accept that the document may contain personal information. For the purposes of internal review, the reviewer is welcome to redact email address, residential and postal addresses, telephone numbers, bank account details. Please do not redact names of public officials, the date of the email (or dates if it is a chain), time stamps or substantive content. Please also make sure that the identify of the HR official is not redacted.

You claim that a conditional exemption under s 47A applies to the email relating to the agency determination because among other things:

a) disclosure of the email could create stress and anxiety for Mr Belcher; and
b) disclosure of the email could cause tension and disharmony in the workplace by permitting comparisons between former and/or current employees.

I do not accept that, on balance, it would be in the public interest to deny access to the email (sans the few redactions that I have agreed to).

In the context of your public interest assessment, you note:

Having regard to all of the relevant factors, I accept that disclosure of the documents found might broadly promote the objects of the FOI Act by providing to the Australian community access to information held by the Government, increasing knowledge about Government activities, and enhaving the scrutiny of Government decision-making ...

I am unable to see how information regarding a particular Registrar's name, their salary & classification level ... attributes and suitability of candidates ... all of which are personal and unique to the people concerned - would be of serious concern or benefit to the public. Disclosure of personal information of that nature would, in my opinion, merely serve to satisfy the curiosity of others.

I disagree.

You do not address with specificity why the release of the email would not be in the public interest. To the extent that you do, your assessment is generalised and not specific to that document. It is hard to know what about that document is so private that it would not be in the public interest for that document to be released. Yours reasons are, in that respect, deficient.

The reason why you cannot see how information regarding a particular Registrar's name (i.e. Murray Belcher), his salary & classification level ... attributes and suitability of candidates ... all of which are personal and unique to the people concerned - would be of serious concern or benefit to the public is because you have adopted a position of willfil blindness. You have deliberately failed to identify the context in which the email was brought into existence. You have deliberately withheld contextual information knowing that it would undermine you conclusions. You know that Justice Greenwood, the third most senior judge in the Federal Court took issue with the selection process that saw Murray Belcher denied lawful promotion to the Senior Executive Service of the APS even though he was selected to fill an SES Band 1 vacancy on his merits. You are, by refusing to acknowledge the context in which the email was brought into existence, belittling Justice Greenwood and his criticisms. That is not acceptable conduct from a Registrar of the Federal Court.

It is not out of personal curiosity that I would like to know about who was involved in preparing that agency determination. The preparation of that agency determination was for unlawful ends. That HR official has willingly engaged in conduct that is contrary to the Public Service Act and derivative legislation. That public servant must be held to account for abbetting Mr Soden and Ms Lagos in their unlawful scheme. That public servant should be the subject of a code of conduct investigation. The PID investigation was not properly conducted. That is why it is the subject of review by the Commonwealth Ombudsman under section 8 of the Ombudsman Act 1976: see Spotlight shines back on watchdog, which was published on page 3 on the Australian on 29 March 2022. It is certainly not in the public interest for public officials who have engaged in wrongdoing to draw a salary from the Commonwealth (i.e. the taxpayer) without being held to account. The Australian public expects their officials to act according to law and to be held to account for contravening the laws of the Commonwealth. What would happen if a rank and file member of the APS were to be found to have colluded in denying a person lawful promotion to the Senior Executive Service? Would they get away with it? I do not think so. Why should you be allowed to cloak the identity of this wrongdoing HR official in secrecy "in the public interest:? That you cannot see the flaws in your reasoning is deeply concerning.

That:

a) Mr Belcher might be embarrassed by the disclosure of that information, causing him stress or angst;
b) the disclosure may the the source of embarrassment for Mr Soden or Ms Lagos and, in turn, cause them stress or angst;
c) the disclosure might embarrass the HR official and cause that official stress or angst; or
d) the disclosure may cause embarrassment to the management of the Court,

are not to the point and, with respect, have no relevance to the public interest.

For you to suggest that it is in the public interest to withhold access to a document that discloses the unlawful conduct of senior members of the management of the Federal Court, as well as officials supporting the Court's human resources functions, betrays your partisan approach to a statutory function that requires impartiality. It also betrays you failure to correctly apply the public interest assessment under the FOI Act.

For the reasons set out, the public interest assessment that you have conducted with respect to the release of the email relatin to the agency determination is without merit.

C. Selection Report

Your reasons in support of refusing access to the selection report will be considered in the light of 3 grounds. They are:

a) the inapplicability of s 47E to the selection report in the current context;
b) the Federal Court's past practices in granting access to selection reports;
c) the inapplicability of s 47F to the selection report given that the selection report has already been published on the Right to Know website.

At this stage, it is worth noting that, for the purposes of the internal review, I would be happy to receive a redacted copy of the selection report.

I would be happy for the interal reviewer to redact:

a) the names of the unsuccessful applicants;
b) the deliberative notes relating to the unsuccessful applicants;
c) the deliberative notes relating to the successful applicant, Mr Belcher.

That being said, I would not accept the following redactions:

a) a redaction to the name of the candidate recommended by the selection panel, Mr Belcher;
b) a redaction to information setting out the classification of the role;
c) the number of applicants received;
d) date information on the selection report;
e) redactions to the names and titles of the members of the selection panel (i.e. Sia Lagos, David Pringle and Andrea Jarratt);
f) redactions to the signatures of Ms Lagos and Mr Pringle (for reasons that will become apparent); and
g) anything else without there being a lawful basis.

For your information, a redacted copy of the selection report, which broadly conforms to what I have requested on internal review, has been published on this website pursuant to a decision of Patrick Hetherington, the First Assistant Commissioner of the Australian Public Service Commission: see https://www.righttoknow.org.au/request/s....

C1. Section 47C conditional exemption

You claim that the selection report is conditionally exempt under s 47C because the document records "exchanges of advice, opinions, proposals and interim decisions or deliberations in the process of engaging or promoting a public servant." You also claim that the document is "preparatory and anciillary to the formal engagement of [Mr Belcher], which took the form of an Agency Determination between the employee and the Court."

With respect, the Agency Determination is not between Mr Belcher and the Court; it is between Mr Belcher and the Commonwealth, with the Agency Head or his or her representative binding the Commonwealth. In any event, you have failed to address the context in which the selection report came into existence. I have already alluded to the unlawful actions engaged in by Mr Soden and Ms Lagos, among others, once Mr Belcher was successfully selected for promotion to the SES Band 1 National Judicial Registrar & District Registrar - QLD vacancy.

Section 47C(1) provides:

A document is conditionally exempt if its disclosure under this Act would disclose matter (deliberative matter) in the nature of, or relating to, opinion, advice or recommendation obtained, prepared or recorded, or consultation or deliberation that has taken place, in the course of, or for the purposes of, the deliberative processes involved in the functions of ... any agency.

I accept that the selection report does contain deliberative content. What I do not accept is the public interest assessment that you conducted to deny me access to that document. That being said, it will not be necessary for me to delve into your reasons because I have, for the purposes of expediency, agreed to the internal reviewer redacting the deliberative content set out in the selection report. Thus, s 47C has no application to the selection report and the selection report need not be subjected to a public interest assessment under s 11A of the FOI Act.

C2. Section 47E conditional exemption

Section 47E does not apply to the selection report identifying Mr Belcher as the successful candidate for the National Judicial Registrar & District Registrar - QLD role.

In Dyki and Federal Commissioner of Taxation 22 ALD 124 (1990) 22 ALD 124, submissions were made on behalf of the Commissioner of Taxation to Deputy President Gerber that granting access to "job applications would be detrimental to the smooth functioning of the ATO, because such a practice would:

a) adversely affect working relationships and morale;
b) reduce the efficiency and quality of staff selection and restrict the application of the merit principle;
c) inhibit the writings of applicants;
d) promote plagiarism and job dissatisfaction with the selection process; and
e) damage the credibility of management": para 18.

Those submissions are, interestingly, very similar to your reasons for refusing access to the selection report.

Deputy President Gerber was "not satisfied that [those reasons were] were sufficient to activate the operation of the exemption contained in [the equivalent of s 47E], if only because the adverse effect must be 'substantial'": para 19.

At [25], Deputy President Gerber stated "it is not unreasonable to suggest that internal peer group scrutiny of job applications is more likely than not to lead to more precise statement; an individual is less likely to exaggerate his achievements if he knows that his pplication may be scrutinised by his peer group from whence the major source of competition for promotion will come."

If Deputy President Gerber was entirely unconvinced that the release of job applications lodged by successful candidates for a role would have the substantial adverse effect required on the management or assessment of personnel by the Commonwealth or the ATO, it follows a fortiori that the selection report with deliberative content removed would have a lesser effect on the management or assessment of personnel by an agency or the Commonwealth. Therefore, you have not lawful basis for claiming that the release of the selection report would have a substantial adverse effect on the management or assessment of personnel by the Federal Court or the Commonwealth.

What I would like to see is a copy of the selection report that broadly resembles the selection report that was published on the disclosure log of the Federal Court in respect of Mr Tim Luxton: see PA2925-06/13, Document 12 of request 3 on the Federal Court's disclosure log at https://fedcourt.gov.au/disclosurelog.

As noted above, I request that you do not redact:

a) the classification of the vacancy;
b) the names of the members of the selection panel;
c) the titles of the selection committee members;
d) Ms Lagos' and Mr Pringle's signatures because they are published online (in the Federal Court's annual reports in the case of Ms Lagos and on every order of the Federal Circuit and Family Court in the case of Mr Pringle);
e) any date information on the report;
f) Mr Belcher's name.

Returning to the main point, the conditional exemptions in ss 47E(c) and 47E(d) would not apply to the selection report in the form that I have requested access to it.

C3. The Federal Court's past practices in granting access to selection reports

I find your reasoning in respect of the release of the selection report disingenuous in the light of the Federal Court's past practices.

In October 2020, a decision maker for the Federal Court granted access to twelve selection reports with deliberative content redacted, and with the names of the recommended and successful candidates unredacted: see PA2925-06/13, Documents 1 - 12 of request 3 on the Federal Court's disclosure log at https://fedcourt.gov.au/disclosurelog.

I am asking for a similarly redacted selection report, only this time, I would like to see Ms Lagos' and Mr Pringle's signatures on the report.

It would not be appropriate to deny access to the selection report, especially in the instant circumstances where there are allegations of impropriety that have been levelled at senior management figures in the Federal Court, both in the context of an internal disclosure being made under the Public Interest Disclosure Act 2013 and by Justice Greenwood in a national newspaper.

Any public interest claim you have made in denying access to the selection report is trumped by the reasons set out here.

C4. Section 47F conditional exemption

As I have already noted, I would be pleased to receive a redacted version of the selection report. I have no interest is knowing the identities of the unsuccessful candidates. I already know the identity of the successful candidate, Murray Belcher, because that information has been gleaned from the annual reports of the Federal Court. Murray is also well known to lawyers in Queensland.

Under s 47F(2) of the FOI Act, you are compelled to consider the following factors in determining whether disclosure of the selection report would involve the unreasonable disclosure of information:

a) the extent to which the information is known;
b) whether to whom the information relates is known to be (or to have been) associate with the matters dealt with in the document; and
c) the availability of the information from publicly accessible sources.

All the world knows that the National Judicial Registrar & District Registrar - QLD from 2018 was Murray Belcher because that information is recorded in the 2018-2019 annual report of the Federal Court. Those in the legal profession, especially in Queensland, know Registrar Belcher and knew that he was the National Judicial Registrar & District Registrar - QLD from 2018. It is public information that Murray Belcher successfully secured a promotion to National Judicial Registrar & District Registrar - QLD role having served as a Deputy District Registar for many years before that in the Queensland Registry of the Federal Court (that information being available to the whole world because it is recorded in the annual reports of the Federal Court).

It is already public information that the information in the selection report relates to Mr Belcher. So much is evidence from the FOI requests on this website: see, for example, https://www.righttoknow.org.au/request/s... and https://www.righttoknow.org.au/request/s....

Finally, the selection report has been published, pursuant to a decision of Patrick Hetherington, the First Assistant Commissioner of the Australian Public Service Commission, in redacted form (and in a form that would be near identical to the form that I have requested the document in) on the internet and is available for all the world to look at: see https://www.righttoknow.org.au/request/s....

Accordingly, s 47F no longer applies and there is no need to apply a public interest test to the document.

For these reasons, it is not appropriate or lawful to deny access to the selection report in the form that I have requested it to be made available to me on this website.

D. Judicial Registrar document with handwritten notes

D1. section 47C exemption

You claim that the Judicial Registrar document is conditionally exempt under s 47C because the document records "exchanges of advice, opinions, proposals and interim decisions or deliberations in the process of engaging or promoting a public servant." You also claim that the document is "preparatory and ancillary to the formal engagement of [Mr Belcher], which took the form of an Agency Determination between the employee and the Court." You also claim that the Judicial Registrar document "includes notes that have been recorded in hadwriting which, whilst no means determinative that the document is in fact a draft, does indicate that the document is not a "record of, or formal statement of reasons for, a final decision given in the exercise of a power or adjudicative function ..."

You have failed to address the context in which the Judicial Registrar document came into existence. I have already alluded to the unlawful purpose for which the agency determination was created and any documents relating to or furthering that unlawful purpose are also affected by unlawfulness.

Any deliberations entered into and recorded in that Judicial Registrar document were for unlawful ends because Mr Belcher was selected on his merits, by Sia Lagos, David Pringle and Andrea Jarratt, as the successful cadidate for the SES Band 1 National Judicial Registrar & District Registrar - QLD role. That process was certified as complying with the merit selection provisions of the Public Service Act, as well as with the Australian Public Service Commissioner's Directions 2016, by Kerryn VIne Camp, the First Assistant Commissioner of the Australian Public Service Commission, on 25 October 2018.

Section 47C(1) provides:

A document is conditionally exempt if its disclosure under this Act would disclose matter (deliberative matter) in the nature of, or relating to, opinion, advice or recommendation obtained, prepared or recorded, or consultation or deliberation that has taken place, in the course of, or for the purposes of, the deliberative processes involved in the functions of ... any agency.

As I pointed out above:

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 "deliberative processes involved in the functions of an agency" extends to the unlawful functions of an agency.

Documents disclosing deliberative processes involved in the functions of an agency where those documents disclose unlawful conduct cannot be conditionally exempt under s 47C of the FOI Act because s 47C only extends to documents relating to the lawful functions of an agency. To interpret the "functions of an agency" to extend to “unlawful functions” 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)).

Therefore s 47C has no application to the Judicial Registrar document with hand written notes. Accordingly there is no scope for a public interest assessment under s 11A of the Act.

D2. s 47E(c) exemption - management of personnel

You claim that the Judicial Registrar document with handwritten notes is exempt because the document "clearly relate[s] to the 'management of personnel'" given that the document concerns the Court's recruitment processes. Other than this bald assertion, you do not identify, with any specificity, how the document clearly relates to the management of personnel.

You claim that the granting access to the document would have a substantial adverse effect on the management of personnel by the Commonwealth or the Federal Court for eight reasons.

You claim that the document relates to the "management of personnel" is false. That is because the document does not relate to the lawful management of personnel.

The context in which the email relating to the agency determination came into existence is public information.

Murray Belcher applied for a SES Band 1 National Judicial Registrar & District Registrar vacancy. Murray Belcher was selected by a selection panel comprised of Sia Lagos, the current Chief Executive Officer and Principal Registrar of the Federal Court, David Pringle, the current Chief Executive Officer and Principal Registrar of Divisions 1 and 2 of the Federal Circuit and Family Court of Australia, and Andrea Jarratt, who was, at the time of the selection process, the Director of National Operations in the Federal Court: see https://www.righttoknow.org.au/request/s....

Kerryn Vine Camp, the Australian Public Service Commissioner's representative, certified the selection process as complying with the merit based selection provisions of the Public Service Act and with the Australian Public Service Commissioner's Directions 2016: see https://www.righttoknow.org.au/request/r....

In an article published in the Australian on 10 February 2022 (Top judge warned of registrar overhaul):

a) “Mr Soden had claimed [Mr Belcher], a man who had been at the court for many years, could not be given the original Senior Executive Service classification advertised because it would be vetoed by the APSC representative”;
b) Mr Soden told Justice Greenwood "there is a problem because the (APSC) has a veto on an SES appointments”;
c) Mr Belcher "ended up in a position lower than the SES classifications other state registrars were given”;
d) “To solve the problem, Warwick wants to downgrade the role from an SES position, avoid the APSC’s veto and appoint (him)”;
e) “Warwick’s advice that the APSC has a veto on appointment is wrong”;
f) “Justice Greenwood confirmed he had been told that the APSC had objected to the man’s appointment because he ‘might not be accommodating of planned changes to the management structure of the court’”;
g) “[Mr Belcher] was ultimately appointed to the role at the (lower level) configured by Mr Soden and Ms Lagos, no doubt in discussion with the APSC”; and
h) “A week after Justice Greenwood’s complaint about [Mr Belcher's] apparent demotion, an HR official wrote to the man to confirm they would use ‘an agency determination which varies your base salary’, giving him a pay rise.”

Despite being selected to fill an SES Band1 position by the selection committee and despite Ms Vine Camp certifying that process, Murray Belcher was not promoted to the Senior Executive Service.

That is clear because:

a) No promotion notification has been published or produced for Mr Belcher's "promotion" to the Senior Executive Service of the APS (unlike, for example, Mr Luxton's promotion to the National Judicial Registrar & District Registrar - VIC role, which was gazetted in the Public Service Gazette: see Public Service Gazette No PS43 - 25 October 2018, p 306, Promotion NN 10736921); and
b) Mr Belcher is not listed in the list of Senior Executive Service employees that is published on the disclosure log of the Federal Court: see the documents associated with PA 2925-06/9 at fedcourt.gov.au/disclosurelog. This is despite the fact that Mr Belcher was a long serving registrar of the Federal Court (which is not only noted in the article published in the Australian, but also discernible from the lists of registrar published in the Federal Court's annual reports). Unlike Mr Belcher, Mr Luxton's and Ms Stride's names have been included in the list of employees promoted to the Senior Executive Service.

It is also clear that there was no "role review" of the National Judicial Registrar & District Registrar role because if that were the case, Mr Belcher would have been selected to fill a role classified at a lower classification. Moreover, Ms Vine Camp would not have certified the SES Band 1 selection process. There would have been no need to because Mr Belcher would have been selected to fill a non-SES role.

Also, I requested access to work level standards assessments as part of my request (see paragraph (d)). Had the National Judicial Registrar & District Registrar - QLD role been reevaluated for a lesser classification than the SES Band 1 classification that it had, then you would have provided me with work level standards assessments identifying that reclassification. The fact that you have not even adverted to such a documents suggests that the position was never the subject of a re-evaluation.

Finally, what need would Ms McMullan, the person who conducted an investigation under the Public Interest Disclosure Act 2013 (Cth), have had to conclude that the National Judicial Registrar & District Registrar role was found suitable for a lesser classification than an SES Band 1 classification if Mr Belcher had been promoted to the Senior Executive Service (as to which, see article published on 10 February 2022 in the Australian)?

The context if further complicated by:

a) Justice Greenwood's public criticisms of Mr Soden and Ms Lagos, recorded in the article published in the Australian on 10 February 2022, conspiring to deny Mr Belcher lawful promotion to the Senior Executive Service;
b) Mr Soden's false claim that the Australian Public Service Commissioner's representative had a power of veto over the selection process, which Justice Greenwood dismissed, and which has been debunked on this website: see https://www.righttoknow.org.au/request/d... and https://www.righttoknow.org.au/request/d... and https://www.righttoknow.org.au/request/d... and https://www.righttoknow.org.au/request/d...
c) claims that the the Australian Public Service Commissioner's representative threatened to use a putative power of veto when, in reality, the documentation (e.g. her certification under s 21 of the Australian Public Service Commissioner's Directions) does not support such a conclusion;
d) the fact that the Federal Court has refused to produce any documents relating to the "reconfiguration" of the SES Band 1 National Judicial Registrar & District Registrar - QLD vacancy to the “lower level”: see https://www.righttoknow.org.au/request/c...
e) the fact that Ms McMullan's PID investigation is now the subject of an investigation by the Commonwealth Ombudsman (see article published on page 3 of the Australian on 29 March 2022, "Spotlight shines back on watchdog"); and
f) the fact that an agency determination was prepared to alter Mr Belcher's salary without any progression in his classification to the Senior Executive Service.

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.

Where a document has been brought into existence with the express purpose, or relating to or furthering the purpose, of denying Mr Belcher lawful promotion to the Senior Executive Service so that the SES Band 1 position can be "taken elsewhere in the organisation" (those are Justice Greenwood's words), and so that Mr Belcher can be remunerated at a rate that an SES Band 1 employee would receive while he is denied lawful appointment to a Senior Executive Service Band 1 role on his merits, s 47E(c) cannot be relied on. That is because the document relates to the unlawful management of personnel by the Federal Court.

Put in broad terms, 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)) ...

For all of your reasoning, you do not actually identify with specificity how it is that release of the Judicial Registrar document with handwritten notes would, or could reasonably be expected to, have a substantial adverse effect of the management of personnel by the Commonwealth or the Federal Court.

In any event, even if you could identify how it is that the Judicial Registrar document would, or could reasonably be expected to, have a substantial adverse effect of the management of personnel by the Commonwealth or the Federal Court, you would still have to overcome the issue of the document having been brought into existence for an unlawful purpose or end and how it is that s 47E(c) could be invoked for such a document. You have not done that. Nor have you referred to the context in which the agency determination came into existence, which informs whether you would be entitled to rely on s 47E(c).

For these reasons, your claims that s 47E(c) applies to the agency determination are without merit.

D3. s 47E(c) exemption - assessment of personnel

You claim that the Judicial Registrar document with handwritten notes is exempt because the document "clearly relate[s] to the 'assessment of personnel'" given that the document concerns the Court's recruitment processes. Other than this bald assertion, you to not, with specificity, provide how it is that the document relates to the assessment of personnel

You claim that the granting access to the document would, or could reasonably be expected to, have a substantial adverse effect on the assessment of personnel by the Commonwealth or the Federal Court for eight reasons.

Your claim that the document relates to the "assessment of personnel" is false. That is because the document does not relate to the lawful assessment of personnel.

The context in which the document came into existence is public information.

Murray Belcher applied for a SES Band 1 National Judicial Registrar & District Registrar vacancy. Murray Belcher was selected by a selection panel comprised of Sia Lagos, the current Chief Executive Officer and Principal Registrar of the Federal Court, David Pringle, the current Chief Executive Officer and Principal Registrar of Divisions 1 and 2 of the Federal Circuit and Family Court of Australia, and Andrea Jarratt, who was, at the time of the selection process, the Director of National Operations in the Federal Court: see https://www.righttoknow.org.au/request/s....

Kerryn Vine Camp, the Australian Public Service Commissioner's representative, certified the selection process as complying with the Public Service Act and with the Australian Public Service Commissioner's Directions 2016: see https://www.righttoknow.org.au/request/r....

In an article published in the Australian on 10 February 2022 (Top judge warned of registrar overhaul):

a) “Mr Soden had claimed [Mr Belcher], a man who had been at the court for many years, could not be given the original Senior Executive Service classification advertised because it would be vetoed by the APSC representative”;
b) Mr Soden told Justice Greenwood "there is a problem because the (APSC) has a veto on an SES appointments”;
c) Mr Belcher "ended up in a position lower than the SES classifications other state registrars were given”;
d) “To solve the problem, Warwick wants to downgrade the role from an SES position, avoid the APSC’s veto and appoint (him)”;
e) “Warwick’s advice that the APSC has a veto on appointment is wrong”;
f) “Justice Greenwood confirmed he had been told that the APSC had objected to the man’s appointment because he ‘might not be accommodating of planned changes to the management structure of the court’”;
g) “[Mr Belcher] was ultimately appointed to the role at the (lower level) configured by Mr Soden and Ms Lagos, no doubt in discussion with the APSC”; and
h) “A week after Justice Greenwood’s complaint about [Mr Belcher's] apparent demotion, an HR official wrote to the man to confirm they would use ‘an agency determination which varies your base salary’, giving him a pay rise.”

Despite being selected on his merits to fill an SES Band1 position by the selection committee and despite Ms Vine Camp certifying that process, Murray Belcher was not promoted to the Senior Executive Service.

That is clear because:

a) No promotion notification has been published or produced for Mr Belcher's "promotion" to the Senior Executive Service of the APS (unlike, for example, Mr Luxton's promotion to the National Judicial Registrar & District Registrar - VIC role, which was gazetted in the Public Service Gazette: see Public Service Gazette No PS43 - 25 October 2018, p 306, Promotion NN 10736921); and
b) Mr Belcher is not listed in the list of Senior Executive Service employees that is published on the disclosure log of the Federal Court: see the documents associated with PA 2925-06/9 at fedcourt.gov.au/disclosurelog. This is despite the fact that Mr Belcher was a long serving registrar of the Federal Court (which is not only noted in the article published in the Australian, but also discernible from the lists of registrar published in the Federal Court's annual reports). Unlike Mr Belcher, Mr Luxton's and Ms Stride's names have been included in the list of employees promoted to the Senior Executive Service.

It is also clear that there was no "role review" of the National Judicial Registrar & District Registrar role because if that were the case, Mr Belcher would have been selected to fill a role classified at a lower classification. Moreover, Ms Vine Camp would not have certified the SES Band 1 selection process. There would have been no need to because Mr Belcher would have been selected to fill a non-SES role.

Also, I requested access to work level standards assessments as part of my request (see paragraph (d)). Had the National Judicial Registrar & District Registrar - QLD role been reevaluated for a lesser classification than the SES Band 1 classification that it had, then you would have provided me with that document. The fact that you have not even adverted to such a document suggests that the position was never the subject of a re-evaluation.

Finally, what need would Ms McMullan, the person who conducted an investigation under the Public Interest Disclosure Act 2013 (Cth), have had to conclude that the National Judicial Registrar & District Registrar role was found suitable for a lesser classification than an SES Band 1 classification if Mr Belcher had been promoted to the Senior Executive Service (as to which, see article published on 10 February 2022 in the Australian)?

The context if further complicated by:

a) Justice Greenwood's public criticisms of Mr Soden and Ms Lagos, recorded in the article published in the Australian on 10 February 2022, conspiring to deny Mr Belcher lawful promotion to the Senior Executive Service;
b) Mr Soden's false claim that the Australian Public Service Commissioner's representative had a power of veto over the selection process, which Justice Greenwood dismissed, and which has been debunked on this website: see https://www.righttoknow.org.au/request/d... and https://www.righttoknow.org.au/request/d... and https://www.righttoknow.org.au/request/d... and https://www.righttoknow.org.au/request/d...
c) claims that the the Australian Public Service Commissioner's representative threatened to use a putative power of veto when, in reality, the documentation (e.g. her certification under s 21 of the Australian Public Service Commissioner's Directions) does not support such a conclusion;
d) the fact that the Federal Court has refused to produce any documents relating to the "reconfiguration" of the SES Band 1 National Judicial Registrar & District Registrar - QLD vacancy to the “lower level”: see https://www.righttoknow.org.au/request/c...
e) the fact that Ms McMullan's PID investigation is now the subject of an investigation by the Commonwealth Ombudsman (see article published on page 3 of the Australian on 29 March 2022, "Spotlight shines back on watchdog"); and
f) the fact that an agency determination was prepared to alter Mr Belcher's salary without any progression in his classification to the Senior Executive Service.

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 “assessment of personnel” by the Commonwealth or an agency to extend to the unlawful assessment of personnel by the Commonwealth or an agency.

Where a document has been brought into existence with the purpose, or relating to or furthering the purpose, of denying Mr Belcher lawful promotion to the Senior Executive Service so that the SES Band 1 position can be "taken elsewhere in the organisation" (those are Justice Greenwood's words), and so that Mr Belcher can be remunerated at a rate that an SES Band 1 employee would receive while he is denied lawful appointment to a Senior Executive Service Band 1 role on his merits, s 47E(c) cannot be relied on. That is because the document relates to the unlawful assessment of personnel by the Federal Court.

Put in broad terms, the assessment of personnel does not extend to the misassessment or 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)).

For all of your reasoning, you do not identify with specificity how it is that the document would, or could reasonably be expected to, have a substantial adverse effect of the assessment of personnel by the Commonwealth or the Federal Court.

In any event, even if you could identify how it is that the Judicial Registrar document would, or could reasonably be expected to, have a substantial adverse effect of the assessment of personnel by the Commonwealth or the Federal Court, you would still have to overcome the issue of the document having been brought into existence for an unlawful purpose or end and how it is that s 47E(c) could be invoked for such a document. You have not done that. Nor have you referred to the context in which the agency determination came into existence, which informs whether you would be entitled to rely on s 47E(c).

For these reasons, your claims that s 47E(c) applies to the email relating to the agency determination are without merit.

D4. Section 47E(d) conditional exemption

You claim that the Judicial Registrar document is exempt because the document relates to "efficient conduct of the operations of the Court, given that the [document] concerns recruitment processes which are essential to the proper and efficient operation of the Court."

You also claim that the document contains information about Mr Belcher, who is a registrar, and that because registrars are critical to the Court's proper and efficient operations (because they perform important statutory functions and exercise judge delegated powers), the email relating to the agency determination is conditionally exempt. In other words, you claim that the granting access to the email would, or could reasonably be expected to, have a substantial adverse effect on the proper and efficient operations of the Federal Court.

Your claim that release of the document would, or could reasonably be expected to, have a substantial adverse effect on the proper and efficient operations of the Federal Court is false. That is because the document does not relate to the lawful operations of the Federal Court.

The context in which the document came into existence is public information.

Murray Belcher applied for a SES Band 1 National Judicial Registrar & District Registrar vacancy. Murray Belcher was selected by a selection panel comprised of Sia Lagos, the current Chief Executive Officer and Principal Registrar of the Federal Court, David Pringle, the current Chief Executive Officer and Principal Registrar of Divisions 1 and 2 of the Federal Circuit and Family Court of Australia, and Andrea Jarratt, who was, at the time of the selection process, the Director of National Operations in the Federal Court: see https://www.righttoknow.org.au/request/s....

Kerryn Vine Camp, the Australian Public Service Commissioner's representative, certified the selection process as complying with the Public Service Act and with the Australian Public Service Commissioner's Directions 2016: see https://www.righttoknow.org.au/request/r....

In an article published in the Australian on 10 February 2022 (Top judge warned of registrar overhaul):

a) “Mr Soden had claimed [Mr Belcher], a man who had been at the court for many years, could not be given the original Senior Executive Service classification advertised because it would be vetoed by the APSC representative”;
b) Mr Soden told Justice Greenwood "there is a problem because the (APSC) has a veto on an SES appointments”;
c) Mr Belcher "ended up in a position lower than the SES classifications other state registrars were given”;
d) “To solve the problem, Warwick wants to downgrade the role from an SES position, avoid the APSC’s veto and appoint (him)”;
e) “Warwick’s advice that the APSC has a veto on appointment is wrong”;
f) “Justice Greenwood confirmed he had been told that the APSC had objected to the man’s appointment because he ‘might not be accommodating of planned changes to the management structure of the court’”;
g) “[Mr Belcher] was ultimately appointed to the role at the (lower level) configured by Mr Soden and Ms Lagos, no doubt in discussion with the APSC”; and
h) “A week after Justice Greenwood’s complaint about [Mr Belcher's] apparent demotion, an HR official wrote to the man to confirm they would use ‘an agency determination which varies your base salary’, giving him a pay rise.”

Despite being selected to fill an SES Band1 position by the selection committee on his merits and despite Ms Vine Camp certifying that process, Murray Belcher was not promoted to the Senior Executive Service.

That is clear because:

a) No promotion notification has been published or produced for Mr Belcher's "promotion" to the Senior Executive Service of the APS (unlike, for example, Mr Luxton's promotion, which was gazetted in the Public Service Gazette: see Public Service Gazette No PS43 - 25 October 2018, p 306, Promotion NN 10736921); and
b) Mr Belcher is not listed in the list of Senior Executive Service employees that is published on the disclosure log of the Federal Court: see the documents associated with PA 2925-06/9 at fedcourt.gov.au/disclosurelog. This is despite the fact that Mr Belcher was a long serving registrar of the Federal Court (which is not only noted in the article published in the Australian, but also discernible from the lists of registrar published in the Federal Court's annual reports). Unlike Mr Belcher, Mr Luxton's and Ms Stride's names have been included in the list of employees promoted to the Senior Executive Service.

It is also clear that there was no "role review" of the National Judicial Registrar & District Registrar role because if that were the case, Mr Belcher would have been selected to fill a role classified at a lower classification. Moreover, Ms Vine Camp would not have certified the SES Band 1 selection process. There would have been no need to because Mr Belcher would have been selected to fill a non-SES role.

Also, I requested access to work level standards assessments as part of my request (see paragraph (d)). Had the National Judicial Registrar & District Registrar - QLD role been reevaluated for a lesser classification than the SES Band 1 classification that it had, then you would have provided me with that document. The fact that you have not even adverted to such a document suggests that the position was never the subject of a re-evaluation.

Finally, what need would Ms McMullan, the person who conducted an investigation under the Public Interest Disclosure Act 2013 (Cth), have had to conclude that the National Judicial Registrar & District Registrar role was found suitable for a lesser classification than an SES Band 1 classification if Mr Belcher had been promoted to the Senior Executive Service (as to which, see article published on 10 February 2022 in the Australian)?

The context if further complicated by:

a) Justice Greenwood's criticisms of Mr Soden and Ms Lagos, recorded in the article published in the Australian on 10 February 2022, conspiring to deny Mr Belcher lawful promotion to the Senior Executive Service;
b) Mr Soden's false claim that the Australian Public Service Commissioner's representative had a power of veto over the selection process, which Justice Greenwood dismissed, and which has been debunked on this website: see https://www.righttoknow.org.au/request/d... and https://www.righttoknow.org.au/request/d... and https://www.righttoknow.org.au/request/d... and https://www.righttoknow.org.au/request/d...
c) claims that the the Australian Public Service Commissioner's representative threatened to use a putative power of veto when, in reality, the documentation (e.g. her certification under s 21 of the Australian Public Service Commissioner's Directions) does not support such a conclusion;
d) the fact that the Federal Court has refused to produce any documents relating to the "reconfiguration" of the SES Band 1 National Judicial Registrar & District Registrar - QLD vacancy to the “lower level”: see https://www.righttoknow.org.au/request/c...
e) the fact that Ms McMullan's PID investigation is now the subject of an investigation by the Commonwealth Ombudsman (see article published on page 3 of the Australian on 29 March 2022, "Spotlight shines back on watchdog"); and
f) the fact that an agency determination was prepared to alter Mr Belcher's salary without any progression in his classification to the Senior Executive Service.

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 “lawful and efficient operations of an agency” to extend to the unlawful operations of an agency. You acknowledge this because you refer to paragraph 6.123 of the FOI Guidelines, which provide:

The predicted effect must bear on the agency's "proper and efficient" operations, that is, the agency is undertaking its expected activities in an expected manner. 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.

Put in broad terms, the proper and efficient operations of the Federal Court do not extend to the unlawful operations of the Court, especially where those operations are to cheat the number of capped SES positions available to the Court and to deny a meritorious candidate, who was selected on his merits for promotion to the SES, career progression to the Senior Executive Service of the APS. Documents disclosing unlawful operations of the Federal Court cannot be conditionally exempt under s 47E(c) of the FOI Act because s 47E(s) only extends to documents relating to the lawful, and proper and efficient, operations of the Federal Court.

To interpret the word “proper” to extend to “unlawful operations” 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)). Such an interpretation would not accord with the Information Commissioner's Guidelines, which Ms Hammerton Cole is required to have regard to under s 93A of the FOI Act.

To interpret the word “efficient” to extend to “unlawful operations” 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)). Such an interpretation would not accord with the Information Commissioner's Guidelines, which Ms Hammerton Cole is required to have regard to under s 93A of the FOI Act.

The Judicial Registrar document with handwritten notes was brought into existence for an unlawful purpose. It was brought into existence to deny Mr Belcher lawful promotion to the Senior Executive Service of the APS after he was selected by a selection committee on his merits, and after that selection process was certified by the Australian Public Service Commissioner's representative as complying with the merit selection criteria of the Public Service Act and the Australian Public Service Commissioner's Directions 2016. It was brought into existence to deny him what Mr Belcher was entitled to on his merits - an SES Band 1 position. It was brought into existence to effect an unlawful purpose after Mr Belcher had lawfully been selected for promotion to the Senior Executive Service, on his merits.

Where a document has been brought into existence with the express purpose, or relating to or furthering the purpose, of denying Mr Belcher lawful promotion to the Senior Executive Service so that the SES Band 1 position can be "taken elsewhere in the organisation" (those are Justice Greenwood's words), and so that Mr Belcher can be remunerated at a rate that an SES Band 1 employee would receive, while he is denied appointment to a Senior Executive Service Band 1 role, s 47E(d) cannot be relied on. That is because the document relates to the unlawful assessment of personnel by the Federal Court.

For these reasons, your claims that s 47E(d) applies to the agency determination are without merit.

D5. Section 47F conditional exemption

Having not seen the document, I cannot be sure that it contains personal information but I accept that the document may contain personal information. For the purposes of internal review, the reviewer is welcome to redact email address, residential and postal addresses, telephone numbers, bank account details. Please do not redact names of public officials, the date of the document (or dates if it is a chain), time stamps or substantive content. Please also make sure that the identities of those involved in bringing the document into existence are not redacted. Please ensure that the content of the document is not redacted without lawful justification.

You claim that a conditional exemption under s 47A applies to the document for 11 reasons.

I do not accept that, on balance, it would be in the public interest to deny access to the email (sans the few redactions that I have agreed to).

In the context of your public interest assessment, you note:

Having regard to all of the relevant factors, I accept that disclosure of the documents found might broadly promote the objects of the FOI Act by providing to the Australian community access to information held by the Government, increasing knowledge about Government activities, and enhaving the scrutiny of Government decision-making ...

I am unable to see how information regarding a particular Registrar's name, their salary & classification level ... attributes and suitability of candidates ... all of which are personal and unique to the people concerned - would be of serious concern or benefit to the public. Disclosure of personal information of that nature would, in my opinion, merely serve to satisfy the curiosity of others.

I disagree.

You do not address with specificity why the release of the Judicial Registrar document would not be in the public interest. To the extent that you do, your assessment is generalised and not specific to that document. It is hard to know what about that document is so private that it would not be in the public interest for that document to be released. Your reasons are, in that respect, deficient.

The reason why you cannot see how information regarding a particular Registrar's name (i.e. Murray Belcher), his salary & classification level ... attributes and suitability of candidates ... all of which are personal and unique to the people concerned - would be of serious concern or benefit to the public is because you have adopted a position of willfil blindness. You have deliberately failed to identify the context in which the document was brought into existence. You have deliberately withheld contextual information knowing that it would undermine you conclusions. You know that Justice Greenwood, the third most senior judge in the Federal Court, publicly and privately took issue with the selection process that saw Murray Belcher denied lawful promotion to the Senior Executive Service of the APS even though he was selected to fill an SES Band 1 vacancy on his merits. You are, by refusing to acknowledge the context in which the email was brought into existence, belittling Justice Greenwood and his criticisms. That is not acceptable conduct from a Registrar of the Federal Court.

It is not out of personal curiosity that I would like to know about what is contained in this document with handwritten notes. The preparation of that document was for unlawful ends. It contains the notes of those willingly engaged in conduct that is contrary to the Public Service Act and derivative legislation. By your own admission, it contains the deliberations of those willingly engaged in conduct that is contrary to the Public Service Act and derivative legislation. These public servants who have deliberately engaged in unlawful conduct or have engaged in conduct to bring about unlawful ends must be held to account for abbetting Mr Soden and Ms Lagos in their unlawful scheme. These public servants should be the subject of code of conduct investigations. The PID investigation was not properly conducted. That is why it is the subject of review by the Commonwealth Ombudsman under section 8 of the Ombudsman Act 1976: see Spotlight shines back on watchdog, which was published on page 3 on the Australian on 29 March 2022. It is certainly not in the public interest for public officials who have engaged in wrongdoing to draw a salary from the Commonwealth (i.e. the taxpayer) without being held to account. The Australian public expects their officials to act according to law and to be held to account for contravening the laws of the Commonwealth. What would happen if a rank and file member of the APS were to be found to have colluded in denying a person lawful promotion to the Senior Executive Service? Would they get away with it? I do not think so. Why should you be allowed to cloak the identity of this wrongdoing HR official in secrecy "in the public interest:? That you cannot see the flaws in your reasoning is deeply concerning.

That:

a) Mr Belcher might be embarrassed by the disclosure of that information, causing him stress or angst;
b) the disclosure may the the source of embarrassment for Mr Soden or Ms Lagos and, in turn, cause them stress or angst;
c) the disclosure might embarrass the HR official and cause that official stress or angst; or
d) the disclosure may cause embarrassment to the management of the Court,

are not to the point and, with respect, have no relevance to the public interest.

For you to suggest that it is in the public interest to withhold access to a document that discloses the unlawful conduct of members of the management of the Federal Court betrays your partisan approach to a statutory function that requires impartiality. It also betrays you failure to correctly apply the public interest assessment under the FOI Act.

For the reasons set out, the public interest assessment that you have conducted with respect to the release of the Judicial Registrar document with handwritten notes is without merit.

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,

Aiofe

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

show quoted sections

External FOI, Federal Court of Australia

3 Attachments

OFFICIAL
Dear Aiofe

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

 
 
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