Role review processes in the Federal Court for National Judicial Registrars

The request was refused by Australian Public Service Commission.

Dear Australian Public Service Commission,

I refer to an article published in the Australian on 9 February 2022 with the title Federal Court boss warned on job rule sidestep.

In that article the journalists state that the APSC investigation, undertaken by the then acting assistant commissioner Kate McMullan, did not substantiate allegations of impropriety in the recruitment processes which resulted in the appointment of eight registrars under independent flexibility arrangements because there had been “a role review process that had resulted in certain positions being found suitable for either a Legal 2 or (SES1) position, depending on the relative complexity and work load.”

The problem with this statement is that it is not possible under the law for certain positions to be found suitable for both an Executive Level 2 and SES1 classification, depending on the relative complexity and work load of the position because such that would involve broadbanding across an SES classification band. So much has been confirmed by Assistant Secretary Bridie Dawson of the Attorney-General’s Department (FOI22/028; CM22/2133 – https://www.righttoknow.org.au/request/s...), who, in response to the following request:

documents that set out how it is that positions/roles in the Office may be classified over more than one classification depending on the complexity of the group of duties to be performed, and where one of those classifications in an SES classification,

responded:

Duties cannot be classified over more than one classification, as per Public Service Classification Rules 2000 which states the following:

… (4) If a group of duties to be performed in an Agency involves work value applying to more than one classification, the Agency Head may allocate more than one classification (called a broadband) to the group of duties.

(5) However, subrule (4) does not apply to a group of duties to be performed by an SES employee.

Please provide access to all the documents (including classification assessments, broadbanding proposals etc) that were provided to Kate McMullan of the Australian Public Service Commission which support her conclusion that allegations of impropriety and, presumably, unlawful conduct in the context of the recruitment of National Judicial Registrars were unsubstantiated because there had been “a role review process that had resulted in certain positions being found suitable for either a Legal 2 or (SES1) position, depending on the relative complexity and work load.”

Yours faithfully,

Mircea

FOI, Australian Public Service Commission

5 Attachments

OFFICIAL

Dear Applicant

 

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

 

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

 

Regards

 

FOI OFFICER

Legal Services

 

Australian Public Service Commission

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

 

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

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

 

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FOI, Australian Public Service Commission

6 Attachments

OFFICIAL

Dear Applicant

 

The scope of your recent FOI request includes one or more documents
containing either personal information or business information about one
or more third parties. In such circumstances, the Commission consults with
relevant third parties about the disclosure of the information.

 

The timeframe for responding to your request is therefore extended by 30
days under subsection 15(6) of the Freedom of Information Act 1982.

 

Regards

 

FOI OFFICER

Legal Services

 

Australian Public Service Commission

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

 

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

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

 

 

 

 

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

 

 

 

 

From: FOI <[email address]>
Sent: Wednesday, 23 March 2022 5:25 PM
To: Mircea <[FOI #8630 email]>
Cc: FOI <[email address]>
Subject: SHC22-4926 Acknowledgement [SEC=OFFICIAL]

 

OFFICIAL

Dear Applicant

 

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

 

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

 

Regards

 

FOI OFFICER

Legal Services

 

Australian Public Service Commission

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

 

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

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

 

 

 

 

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

 

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FOI, Australian Public Service Commission

8 Attachments

OFFICIAL

A decision notice is attached.

 

Regards

 

FOI OFFICER

Legal Services

 

Australian Public Service Commission

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

 

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

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

 

 

 

 

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

 

 

 

 

From: FOI <[email address]>
Sent: Monday, 11 April 2022 5:04 PM
To: Mircea <[FOI #8630 email]>
Cc: FOI <[email address]>
Subject: 4926 Extension of time [SEC=OFFICIAL]

 

OFFICIAL

Dear Applicant

 

The scope of your recent FOI request includes one or more documents
containing either personal information or business information about one
or more third parties. In such circumstances, the Commission consults with
relevant third parties about the disclosure of the information.

 

The timeframe for responding to your request is therefore extended by 30
days under subsection 15(6) of the Freedom of Information Act 1982.

 

Regards

 

FOI OFFICER

Legal Services

 

Australian Public Service Commission

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

 

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

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

 

 

 

 

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

 

 

 

 

From: FOI <[9][email address]>
Sent: Wednesday, 23 March 2022 5:25 PM
To: Mircea <[10][FOI #8630 email]>
Cc: FOI <[11][email address]>
Subject: SHC22-4926 Acknowledgement [SEC=OFFICIAL]

 

OFFICIAL

Dear Applicant

 

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

 

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

 

Regards

 

FOI OFFICER

Legal Services

 

Australian Public Service Commission

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

 

t: 02 6202 3500  w: [12]www.apsc.gov.au        

[13]three hexagons[14]twitter icon [15]facebook
icon                          

 

 

 

 

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

 

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Dear Ms Strangio,

Thank you for your decision.

Your decision does not make much sense. I will explain below.

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

I am writing to request an internal review of Australian Public Service Commission's handling of my FOI request 'Role review processes in the Federal Court for National Judicial Registrars'.

You will note that I asked the APSC for all documents (including classification assessments, broadbanding proposals etc) that were provided to Kate McMullan of the Australian Public Service Commission which support her conclusion that allegations of impropriety and, presumably, unlawful conduct in the context of the recruitment of National Judicial Registrars were unsubstantiated because there had been “a role review process that had resulted in certain positions being found suitable for either a Legal 2 or (SES1) position, depending on the relative complexity and work load.”

What does this mean? It means that the documents I am asking for are:

1. documents that were provided to Kate McMullan; and
2. are evidence that “a role review process that had resulted in certain positions being found suitable for either a Legal 2 or (SES1) position, depending on the relative complexity and work load.”

First, in your decision you claim that the documents are exempt for, among other things, having personal information.

That immediately raises red flags.

More than anybody else in the country, the assistant commissioner for integrity, performance and employment policy would know that "role reviews" are reviews of roles. To put it in terms that you will understand, an assessment of a role is not an assessment of a person. It is an assessment of the groups of duties relative to the Commissioner's work level standards. It is impersonal. It has nothing to do with an individual or individuals. I don't need to quote chapter and verse from the Australian Public Service Classification Guide, which is available here:

https://www.apsc.gov.au/working-aps/aps-...

Going back to the documents, you claim that the document provided to Kate McMullan of the APSC that evidences that “a role review process that had resulted in certain positions being found suitable for either a Legal 2 or (SES1) position, depending on the relative complexity and work load" is exempt for having personal information. How could that be? A role review has nothing to do with individuals. Therefore I am immediately suspicious of your claims that this document is, in fact, the document that I requested, or if it is, that the conditional exemptions you have claimed do in fact apply.

Second, you claim that the document is a recruitment outcome document. Another red flag. How can the outcome of a recruitment process determine the scope of a role, and the groups of duties to be performed in that role, by reference to the Commissioner's work level standards? The role assessment, whether it is a review or whether it is an assessment for a new role necessarily precedes any recruitment process and certainly the outcome of that process.

Again, this document cannot be what I asked for.

Moreover, you claim that parts of the document are exempt on the ground of irrelevance. What could be irrelevant in a document that is a record of the reassessment of the scope of a role (i.e. the groups of duties to be performed) by reference to the Commissioner's work level standards?

Do you understand why your decision letter makes no sense?

Having read some of the responses that you have provided, I have had cause to question whether you know what you are doing. This decision has only cemented my concerns about your ability to make lawful decisions under the FOI Act.

That is to say nothing, of course, of the fact that the APSC is under investigation by the Commonwealth Ombudsman for the PID investigation that Kate McMullan, the then assistant commissioner for integrity, performance and employment policy, conducted. It was obviously botched because the Ombudsman conducted a preliminary inquiry and, once that inquiry ended, the Ombudsman decided to investigate the APSC under s 8 of the Ombudsman Act, immediately escalating the investigation to "Category 4". How the Australian Public Service Commissioner could look senators in the eye and claim, as he does in his hot pocket brief, that the APSC takes PID investigations seriously is beyond me. He must have been one hell of a diplomat.

I invite the person who will be conducting the internal review to make a lawful decision and one that can withstand scrutiny on its face (i.e. I've not even seen these documents and based on the description of the documents have been able to determine that what you have recorded in your decision is nonsense).

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,

Mircea

FOI, Australian Public Service Commission

5 Attachments

OFFICIAL

Dear Applicant

 

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

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

 

Regards

 

FOI OFFICER

Legal Services

 

Australian Public Service Commission

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

 

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

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

 

 

 

 

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

 

show quoted sections

FOI, Australian Public Service Commission

6 Attachments

OFFICIAL

Dear Applicant,

 

Please see attached.

 

Kind regards

 

FOI OFFICER

Legal Services

 

Australian Public Service Commission

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

 

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

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

 

 

 

 

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

 

show quoted sections