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Selection report for Russell Trott's selection as National Judicial Registrar & District Registrar in the Western Australian District Registry

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Dear Federal Court of Australia,

Russell Trott applied to fill vacancy NN 10725159 (published in PS19 on 7 May 2018), which was a Senior Executive Band 1 National Judicial Registrar & District Registrar role based in Perth (see document 3 at https://www.righttoknow.org.au/request/r...).

Russell Trott was selected to fill vacancy NN 10725159 (see https://www.righttoknow.org.au/request/r...).

The selection process for the Senior Executive Band 1 National Judicial Registrar & District Registrar role based in Perth role that Russell Trott secured was certified as complying with the APS Employment Values in the Public Service Act and 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 (see document 9 at https://www.righttoknow.org.au/request/r...).

Under the FOI Act, I request the selection committee's selection report in relation to the Senior Executive Band 1 National Judicial Registrar & District Registrar role that Russell Trott applied for and was selected by the selection committee to fill.

In relation to the selection report, you are invited to redact:

a) the names of unsuccessful candidates;
b) deliberative content about the unsuccessful candidates and their applications;
c) deliberative content about the successful candidates and their applications.

Please do not redact:

a) the classification of the role the Mr Trott was selected to fill;
b) the names and titles of the members of the selection committees;
c) date information on the selection reports;
d) Russell Trott's name on any part of the selection report;
e) to the extent that the selection committee was constituted by Sia Lagos or David Pringle, the signatures that Sia Lagos or David Pringle applied to the selection reports.

Yours faithfully,

Jake S

External FOI, Federal Court of Australia

1 Attachment

OFFICIAL
Dear Jake S

Please find attached correspondence from the Federal Court of Australia.

Kind regards

FOI Officer
Federal Court of Australia

show quoted sections

External FOI, Federal Court of Australia

1 Attachment

OFFICIAL
Dear Jake S

Please find attached correspondence from the Federal Court of Australia.

Kind regards

FOI Officer
Federal Court of Australia

show quoted sections

Dear B Henderson,

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

I am writing to request an internal review of Federal Court of Australia's handling of my FOI request 'Selection report for Russell Trott's selection as National Judicial Registrar & District Registrar in the Western Australian District Registry'.

Many people on this website have explained why it is untenable under the FOI Act to refuse access to the selection report for the National Judicial Registrar & District Registrar in the Western Australian District Registry, which records Russell Trott as the preferred candidate for promotion to the SES Band 1 position. I do not intend to rehash those reasons. It is enough for me to say that your decision is wrong in the light of the law, the public interest, and available documents on this website and in the public domain.

It is now very clear that Russell Trott was selected for promotion to the SES Band 1 National Judicial Registrar & District Registrar - WA role by Sia Lagos, David Pringle and Andrea Jarratt. The selection process was certified by Kerryn Vine-Camp, the then First Assistant Commissioner of the APSC, on 23 October 2018. Nonetheless, Russell Trott was denied promotion to the Senior Executive Service because Warwick Soden, Sia Lagos and Darrin Moy, among others, colluded to deny allocating an Senior Executive Band 1 Classification to Mr Trott under rule 6 of the Public Service Classification Rules 2000 and, instead, forced Mr Trott to take a financial arrangement increasing his pay but maintaining his Executive Level 2 classification, contrary to the law.

You and your colleagues are welcome to pretend like there's nothing wrong. It's obvious that you, Ms Hammerton Cole, Ms Colbran and Mr Tredwell are merely circling the wagons but the pressure will overwhelm the Court and will expose the lengths to which you and your colleagues have gone to deliberately deny access to documents to members of the public that should be made available to members of the public.

I request a complete review of your decision.

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

Yours faithfully,

Jake S

Dear B Henderson,

I've stumbled upon something very interesting - https://www.righttoknow.org.au/request/m....

Apparently, despite being selected by Sia Lagos, David Pringle and Andrea Jarratt for promotion to the SES Band 1 National Judicial Registrar & District Registrar - WA role, and despite the SES selection process being certified by Ms Vine-Camp, the First Assistant Commissioner of the Australian Public Service Commission, as complying with section 10A of the Public Service Act and the Australian Public Service Commissioner's Directions, it appears that Warwick Soden assigned Mr Trott with an EL/Legal2 classification and gave him an IFA. Isn't this exactly what the journalists in The Australian reported was being done to get around the capped number of SES positions in the Federal Court agency?

Don't tell me that the documents requested are conditionally exempt because they would, or could reasonably be expected to:

* have a substantial adverse effect on the management or assessment of personnel by the Commonwealth or an agency; or
* have a substantial adverse effect on the proper and efficient conduct of the operations of an agency.

Sections 47E(c) and 47E(d) have no application to this case and the evidence that senior figures in the Federal Court unlawfully denied Russell Trott promotion to the senior executive service by assigning an EL/Legal2 classification and giving him an IFA to compensate him "for his troubles" has been identified.

As I explained here - https://www.righttoknow.org.au/request/r... - there are fundamental assumptions that inform statutory interpretation. One of those fundamental assumptions is the assumption of legality. This assumption was elegantly expressed by Isaacs J in Ex parte Walsh and Johnson; In Re Yates (1925) CLR 36.

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

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

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

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

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

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

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

As I have already noted, I do not accept your public interest assessment in relation to the conditional exemptions under ss 47C and 47F.

Yours sincerely,

Jake S

External FOI, Federal Court of Australia

OFFICIAL
Dear Jake S,

I acknowledge receipt of your request below for an internal review of the decision made by Ms Henderson on behalf of the Federal Court of Australia and dated 31 May 2022.

Kind regards

FOI Officer
Federal Court of Australia

show quoted sections

External FOI, Federal Court of Australia

1 Attachment

OFFICIAL
Dear Jake,

Please find attached correspondence from the Federal Court of Australia.

Kind regards,

FOI Officer
Federal Court of Australia

show quoted sections

Federal Court of Australia

 
 
  [1]Office of the Australian Information Reference Code:  
Commissioner ICR_10-50238291-2832
 

 
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Federal Court of Australia

1 Attachment

Our reference: MR22/01252

 

By email: [FOI #8841 email]

Receipt of your IC review application  

Thank you for your application for Information Commissioner Review (IC
review).

The Office of the Australian Information Commissioner (OAIC) is
considering your application.

If you wish to advise the OAIC of any changes to your circumstances,
including your contact details or if your FOI request has been resolved,
please write to [email address] and quote MR22/01252.

 

Yours sincerely

 

Freedom of Information Regulatory Group

Office of the Australian Information Commissioner

 

 

 

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