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Request for documents relating to the selection processes for the WA and QLD National Judicial Registrar & District Registrar roles in the Federal Court

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Dear Australian Public Service Commission,

This is a request for documents under the FOI Act.

According to an article published in The Australian on 10 February 2022 (Top judge warned of registrar overhaul):

a) “[Justice Greenwood] objected to plans to downgrade the classification that one existing registrar would be appointed to – a decision the court’s chief executive and senior officials attempted to blame on the Australian Public Service Commission.”

b) “Federal Court bureaucrats had circumvented the cap on the number of staff by hiring them at lower levels and using special agreements to increase their pay – by up to $50,000 – and their titles.”

c) On 18 October 2018 Justice Greenwood wrote in an email:

i. “Warwick tells me that there is a problem because the (APSC) has a veto on any SES appointments.”
ii. “To solve the problem, Warwick wants to downgrade the role from an SES position, avoid the APSC’s veto and appoint [Murray].”

d) “[Warwick] Soden had claimed that [Murray 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.”

e) Justice Greenwood noted that “Sia spoke to me briefly before she went on leave and apparently the (APSC) representative was concerned that [Murray Belcher] was not very forthcoming about the changes to the management system or otherwise he would make to improve the work of the court.”

f) Justice Greenwood noted “First, Warwick’s advice that the APSC has a veto on appointment is wrong.”

g) Justice Greenwood noted “The true position is that neither Warwick nor Sia want to appoint [Murray Belcher]. The so called ‘veto’ is a red herring to prevent [Murray Belcher] being awarded the position.”

h) Justice Greenwood noted that “The SES classification, you will find, will have been taken somewhere else in the organisation …”

Acting assistant commissioner McMullan’s recorded the following in her PID report of 9 December 2020:

“Relevant Allegation

The relevant allegation was that Mr Belcher and possibly Mr Trott were deliberately precluded from being appointed to SES1 positions in order to hold SES1 positions available for others...

Relevant evidence

The material provided by the FCSA does indicate that Mr Belcher and Mr Trott applied for SES1 positions and were ultimately placed in [Executive Level 2] positions. However, materials provided by the FCSA also indicates that, following advertisement of these positions and the finalisation of the recruitment process, a role review was undertaken ...

The material provided about this review indicates that these decisions were made on the basis of the relative volume and complexity of work undertaken in the various Registries. Those in less complex and busy Registries were appointed to [Executive Level 2] positions; those in more complex and busy Registries were appointed to SES1 positions. I found no indication to suggest that this was done for anything other than a workforce management / resource management purpose.

Findings

I find no indication amongst the materials provided that Mr Belcher or Mr Trott were particularly targeted for reclassification of their roles… Ms Gitsham and Mr Benter were in fact also applicants in the National Judicial Registrar & District Registrar process and were eventually offered [Executive Level 2] positions, as discussed below. Ms O’Connor was an applicant in an SES2 process, and through that process was ultimately offered an SES1 position. On the basis of the evidence and on the balance of probabilities, I find that this allegation is not substantiated.

However I note that more clear and transparent communications from the FCSA about the role review process, including the changing nature of the District Registrar role to allow it to be held at either a SES1 or an [Executive Level 2] position level, may have been advisable to reduce the risk of misunderstanding.

Veto of appointments

Relevant Allegation

That the Australian Public Service Commissioner’s representative on the selection panel “vetoed” appointment of Mr Belcher to the SES1 District Registrar role or alternatively, Mr Soden falsely asserted that Australian Public Service Commissioner’s representative had done so.

Findings

On the balance of probabilities, I find that this assertion about the Australian Public Service Commissioner’s representative is not substantiated. On the basis of materials provided by the FCSA including a selection report, I find that the outcome of the recruitment process was that Mr Belcher was found by the panel (including the Australian Public Service Commissioner’s representative on the selection panel) to be the preferred candidate for the advertised position. On the balance of probabilities, I find that no “veto power” was exercised or purported to be exercised by the Australian Public Service Commissioner’s representative. On the balance of probabilities I find that Mr Belcher was appointed to a[n] [Executive Level 2] position on the basis of a role review ...

In those circumstances, it is not clear whether or for what purpose Mr Soden may have made representations that the Australian Public Service Commissioner’s representative had exercised a “veto power”; however, in absence of a “veto power” being exercised or being purported to be exercised, any incorrect statement by Mr Soden (whether due to a misstatement on Mr Soden’s behalf, a misunderstanding on Justice Greenwood’s behalf, a miscommunication between the two, or for some other reason) about action taken by the Australian Public Service Commissioner’s representative would not in and of itself constitute disclosable conduct. On that basis, I make no further findings about any such comments that may have been made.”

The following propositions have also been established:

i) Murray Belcher applied for the SES Band 1 National Judicial Registrar & District Registrar – QLD role in the Federal Court (https://www.righttoknow.org.au/request/d...).

j) Russell Trott applied for the SES Band 1 National Judicial Registrar & District Registrar – WA role in the Federal Court (https://www.righttoknow.org.au/request/d...).

k) The Federal Court has refused to provide access to any classification evaluation documents (i.e. those document that sets out the assessment of the groups of duties to be performed by by reference to the Australian Public Service Commissioner’s work level standards and, on the basis of those assessments, the allocations of classifications to the role under rule 9 (as distinct to the allocations of classifications to employees under rule 6) of the Public Service Classification Rules 2000) for the SES Band 1 National Judicial Registrar & District Registrar – QLD role on the basis that the documents do not exist (https://www.righttoknow.org.au/request/d...).

l) The Federal Court has refused to provide access to any classification evaluation documents (i.e. those document that sets out the assessment of the groups of duties to be performed by by reference to the Australian Public Service Commissioner’s work level standards and, on the basis of those assessments, the allocations of classifications to the role under rule 9 (as distinct to the allocations of classifications to employees under rule 6) of the Public Service Classification Rules 2000) for the SES Band 1 National Judicial Registrar & District Registrar – WA role on the basis that the documents do not exist (https://www.righttoknow.org.au/request/d...).

m) Sia Lagos, David Pringle and Andrea Jarratt constituted the selection panel for the SES Band 1 National Judicial Registrar & District Registrar – QLD role that Murray Belcher was selected for promotion to (https://www.righttoknow.org.au/request/d...).

n) Sia Lagos, David Pringle and Andrea Jarratt constituted the selection panel for the SES Band 1 National Judicial Registrar & District Registrar – WA role that Russell Trott was selected for promotion to (https://www.righttoknow.org.au/request/d... and https://www.righttoknow.org.au/request/s...).

o) Sia Lagos was the Agency Head’s delegate for the SES Band 1 National Judicial Registrar & District Registrar – QLD selection process (https://www.righttoknow.org.au/request/d...).

p) Sia Lagos was the Agency Head’s delegate for the SES Band 1 National Judicial Registrar & District Registrar – WA selection process (https://www.righttoknow.org.au/request/d...).

q) Kerryn Vine-Camp, the then First Assistant Commissioner of the Australian Public Service Commission, certified, on 25 October 2018, that the selection process for the SES Band 1 National Judicial Registrar & District Registrar – QLD role complied with the APS Employment Principles, as well as the Australian Public Service Commissioner’s Directions 2016 (Cth) (PA2925-06/23 on the Federal Court’s disclosure log – www.fedcourt.gov.au/disclosurelog).

r) Kerryn Vine-Camp, the then First Assistant Commissioner of the Australian Public Service Commission, certified, on 25 October 2018, that the selection process for the SES Band 1 National Judicial Registrar & District Registrar – WA role complied with the APS Employment Principles, as well as the Australian Public Service Commissioner’s Directions 2016 (Cth) (PA2925-06/23 on the Federal Court’s disclosure log – www.fedcourt.gov.au/disclosurelog).

s) The Australian Public Service Commission notified the Federal Court on 22 June 2018 that Kerryn Vine-Camp, the then First Assistant Commissioner of the Australian Public Service Commission, would participate as the Australian Public Service Commissioner’s representative in relation to the selection processes of the SES Band 1 National Judicial Registrar & District Registrar – QLD role and the SES Band 1 National Judicial Registrar & District Registrar – WA role (https://www.righttoknow.org.au/request/c...).

t) Kerryn Vine-Camp, the then First Assistant Commissioner of the Australian Public Service Commission, sent Peter Woolcott, the Australian Public Service Commissioner, an email on 31 July 2018 noting that she would not be in the office as she would be “assisting the Federal court with a significant recruitment exercise to reform the National Judicial Registrar system …” (https://www.righttoknow.org.au/request/p...).

u) Despite being selected for an SES Band 1 National Judicial Registrar & District Registrar – QLD role by a selection panel constituted by Sia Lagos, David Pringle and Andrea Jarratt, and despite the selection process being certified, on 25 October 2018, by Kerryn Vine-Camp, the then First Assistant Commissioner of the Australian Public Service Commission, as complying with the APS Employment Principles, as well as the Australian Public Service Commissioner’s Directions 2016 (Cth), on 31 October 2018 Warwick Soden assigned an “EL/Legal 2” classification to Murray Belcher under rule 6 of the Public Service Classification Rules 2000 (https://www.righttoknow.org.au/request/m...).

v) Despite being selected for an SES Band 1 National Judicial Registrar & District Registrar – WA role by a selection panel constituted by Sia Lagos, David Pringle and Andrea Jarratt, and despite the selection process being certified, on 25 October 2018, by Kerryn Vine-Camp, the then First Assistant Commissioner of the Australian Public Service Commission, as complying with the APS Employment Principles, as well as the Australian Public Service Commissioner’s Directions 2016 (Cth), on 12 October 2018 Warwick Soden wrote to Russell Trott confirming “arrangements for the permanent re-assignment of your duties to the position of EL/Legal2, National Judicial Registrar and District Registrar, WA (position number 5024)” and providing an independent flexibility arrangement outlining his new salary (https://www.righttoknow.org.au/request/m...).

w) The Australian Public Service Commissioner’s representative who participates in an SES selection process does not have a power of veto over the selection process (https://www.righttoknow.org.au/request/d... and https://www.righttoknow.org.au/request/d... and
https://www.righttoknow.org.au/request/d...).

There are lacunae and inconsistencies in the overall picture.

For example, if there was actually a “role review” of the SES Band 1 National Judicial Registrar & District Registrar – QLD role (i.e. an assessment of the groups of duties to be performed by the National Judicial Registrar & District Registrar – QLD by reference to the Australian Public Service Commissioner’s work level standards and, on the basis of those assessments, the allocations of classifications to the role under rule 9 (as distinct to the allocations of classifications to employees under rule 6) of the Public Service Classification Rules 2000), one would expect there to be a classification evaluation document setting out that role review.

Also, if a “role review” did take place, one would expect that the vacancy notification for the SES Band 1 National Judicial Registrar & District Registrar – QLD role in the Public Service Gazette would have been retracted, and a revised vacancy notification would have been published.

Also, if a legitimate “role review”, reclassifying the SES1 classification of the National Judicial Registrar & District Registrar – QLD role to a non-SES classification under rule 9 of the Public Service Classification Rules 2000, did take place, why would the Australian Public Service Commissioner commit a representative to a non-SES selection process?

Also, if a legitimate “role review”, reclassifying the SES1 classification of the National Judicial Registrar & District Registrar – QLD role to a non-SES classification under rule 9 of the Public Service Classification Rules 2000, did take place, why would the Australian Public Service Commissioner’s representative certify the an SES selection process as complying with the APS Employment Principles, as well as the Australian Public Service Commissioner’s Directions 2016 (Cth)?

Under the FOI Act I request access to:

1. any and all correspondence received by Kerryn Vine-Camp noting that the SES Band 1 National Judicial Registrar & District Registrar – QLD role had been the subject of a role review;

2. any and all correspondence received by Peter Woolcott noting that the SES Band 1 National Judicial Registrar & District Registrar – QLD role had been the subject of a role review;

3. any and all correspondence received by anybody else at the Australian Public Service Commission noting that the SES Band 1 National Judicial Registrar & District Registrar – QLD role had been the subject of a role review;

4. any and all correspondence received Kerryn Vine-Camp noting that the SES Band 1 National Judicial Registrar & District Registrar – WA role had been the subject of a role review;

5. any and all correspondence received by Peter Woolcott noting that the SES Band 1 National Judicial Registrar & District Registrar – WA role had been the subject of a role review;

6. any and all correspondence received by anybody else at the Australian Public Service Commission between 22 June 2018 and 25 October 2018 noting that the SES Band 1 National Judicial Registrar & District Registrar – WA role had been the subject of a role review;

7. any and all correspondence received by Kerryn Vine-Camp noting that she would no longer be required to participate in the selection process because the National Judicial Registrar & District Registrar – QLD role had been reduced in classification to a non-SES classification;

8. any and all correspondence received by Peter Woolcott noting that Kerryn Vine-Camp would no longer be required to participate in the selection process because the National Judicial Registrar & District Registrar – QLD role had been reduced in classification to a non-SES classification;

9. any and all correspondence received anybody else at the Australian Public Service Commission between 22 June 2018 and 25 October 2018 noting that Kerryn Vine-Camp would no longer be required to participate in the selection process because the National Judicial Registrar & District Registrar – QLD role had been reduced in classification to a non-SES classification;

10. any and all correspondence received by Kerryn Vine-Camp noting that she would no longer be required to participate in the selection process because the National Judicial Registrar & District Registrar – WA role had been reduced in classification to a non-SES classification;

11. any and all correspondence received by Peter Woolcott noting that Kerryn Vine-Camp would no longer be required to participate in the selection process because the National Judicial Registrar & District Registrar – WA role had been reduced in classification to a non-SES classification;

12. any and all correspondence received by anybody else at the Australian Public Service Commission between 22 June 2018 and 25 October 2018 noting that Kerryn Vine-Camp would no longer be required to participate in the selection process because the National Judicial Registrar & District Registrar – WA role had been reduced in classification to a non-SES classification;

13. any and all notices published in the Public Service Gazette retracting the vacancy for the SES Band 1 National Judicial Registrar & District Registrar – QLD role; and

14. any and all notices published in the Public Service Gazette retracting the vacancy for the SES Band 1 National Judicial Registrar & District Registrar – WA role.

Also, given that Ms McMullan concluded that “[o]n the balance of probabilities I find that Mr Belcher was appointed to a[n] [Executive Level 2] position on the basis of a role review”, I request access to a fifteenth document, being the record of the “role review” (i.e. those documents that set out the assessment of the groups of duties to be performed by the National Judicial Registrar & District Registrar – QLD by reference to the Australian Public Service Commissioner’s work level standards and, on the basis of those assessments, the allocation of a classification to the role under rule 9 (as distinct to the allocations of classifications to APS employees under rule 6) of the Public Service Classification Rules 2000) that Ms McMullan claims occurred after Murray Belcher was selected by Sia Lagos, David Pringle and Andrea Jarratt for promotion to the SES Band 1 National Judicial Registrar & District Registrar – QLD role, and after the SES Band 1 National Judicial Registrar & District Registrar – QLD role selection process was certified by Kerryn Vine-Camp, on 25 October 2018, as complying with the APS employment Principles, and the Australian Public Service Commissioner’s Directions 2016.

Yours faithfully,

Alex

FOI, Australian Public Service Commission

5 Attachments

OFFICIAL

Dear Alex

 

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

 

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

 

Regards,

 

FOI OFFICER

Legal Services

 

Australian Public Service Commission

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GPO Box 3176 CANBERRA ACT 2601

 

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