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Role review processes in the Federal Court for National Judicial Registrars

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Dear Federal Court of Australia,

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

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

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

Dear Ms Hammerton Cole,

Your decision does not make much sense.

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 'Role review processes in the Federal Court for National Judicial Registrars'.

You will note that I asked the Federal Court, much as I did 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.

You should 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.

If you have a casual glance at the APS Classification Guide, you will notice the following is noted about distinctions between the job and the individual performing the job (page 9)

When making a classification decision, it is vital that the work value of a job is considered and not the capabilities or characteristics of the employee who will perform the role ... Classification is based on an appropriate work value assessment of the role and not on the remuneration arrangements that may be needed to attract and/or retain appropriately skilled or qualified people.

If you have a casual glance at the APS Classification Guide, you will notice the following is noted about reclassifying a role (page 10):

The classification of the job should be reviewed when a significant change in work value occurs.

This includes changes in the nature and scope of the work to be performed such that the level of
complexity changes or the responsibility and authority of the job alters.

It is important to note that when assessing any differences in the duties not all changes necessarily
equate to a need for a change in work value. Any reclassification needs to be based on an evaluation of work value using the work level standards as a guide.

Where a decision is made to reclassify a job, this does not mean the classification of the employee
performing the duties is also automatically reclassified. Employees are allocated a classification in a
separate decision under the Classification Rules (rule 6(1)).

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 documents "record the process by which the PID investigation was undertaken and disclose material prepared or recorded as part of that deliberative PID process ..." How could role review documents have anything to do with the process by which a PID investigation was undertaken and disclose material prepared or recorded as part of that deliberative PID process? That is nonsense.

You should know that I made an identical request to the APSC and the APSC has identified the documents in issue and they are not documents that have anything to do with the process by which a PID investigation was undertaken and disclose material prepared or recorded as part of that deliberative PID process. The documents are:

a) Email correspondence between Commission and Federal Court of Australia titled
“PRIVATE AND CONFIDENTIAL” dated 27 October 2020; and
b) Judicial Registrar Recruitment Outcome document prepared by Federal Court of
Australia.

As you can see, the APSC claims that the relevant documents 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.

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

External FOI, Federal Court of Australia

OFFICIAL
Dear Mircea

I acknowledge receipt of your request below for an internal review of the decision made by Registrar Hammerton Cole on behalf of the Federal Court of Australia and dated 20 May 2022.

Kind regards

FOI Officer
Federal Court of Australia

show quoted sections

External FOI, Federal Court of Australia

1 Attachment

OFFICIAL
Dear Mircea

Please find attached correspondence from the Federal Court of Australia.

Kind regards

FOI Officer
Federal Court of Australia

show quoted sections

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