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Selection report - NCF Registrar - vacancy notification NN 10690165 in Public Service Gazette No PS38 of 2016

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Dear Federal Court of Australia,

I refer to vacancy notification NN 10690165 in Public Service Gazette No PS38 published on 21 September 2016.

The vacancy notification is for an NCF Registrar position in the Federal Court.

The contact officer for the position is Andrea Jarratt.

The eligibility requirement for the position provided:

This position requires the occupant to perform statutory legal function (sic), as required. Therefore, legal qualifications and admission as a practitioner of the High Court or the Supreme Court of a State or Territory of Australia is (sic) essential.

Under the FOI Act, I would like to be provided with any selection reports for the NCF Registrar position, vacancy NN 10690165.

There is a public interest in being provided with these selection reports because selection processes for registrars of the Federal Court have come under public scrutiny in the media and were the subject of investigation by the Australian Public Service Commission. That APSC investigation is now the subject of an investigation by the Commonwealth Ombudsman (a Category 4 investigation).

Please do not redact the names of the members of the selection committee who signed any reports.

Please do not redact any date information affixed to any reports.

Please do not redact the signature of the members of the selection committee to the extent that those members were:

Sia Lagos (whose signature is published all over the internet (e.g. on every order of the Federal Court published on the Commonwealth Courts Portal));
David Pringle (whose signature is published all over the internet (e.g. on every order of the Federal Circuit and Family Court published on the Commonwealth Courts Portal) and is published on the Federal Court of Australia's FOI disclosure log (e.g. PA2925/06-13));
Andrea Jarratt (whose signature is published on the Federal Court of Australia's FOI disclosure log (e.g. PA2925/06-13)).

Please provide the reports by email.

Yours faithfully,

Marcus

External FOI, Federal Court of Australia

1 Attachment

OFFICIAL
Dear Marcus

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

2 Attachments

OFFICIAL
Dear Marcus

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 - NCF Registrar - vacancy notification NN 10690165 in Public Service Gazette No PS38 of 2016'.

I request a complete review on all grounds.

The starting point for this request was an article in the Australian.

In that article, Kate McMullan is quoted saying:

(This is) because … if admission as a legal practitioner was not essential for performance of
the role, listing it as an essential requirement in the advertisement may have precluded other members of the community with the same qualifications as (the woman) from applying for the position.

Admission as a legal practitioner is listed as essential for performance of the role, but does not appear to have been considered as part of the selection process ...

[Caitlin Wu] was selected over a field of candidates all of whom did have this work-related quality."

A more complete version of Ms McMullan's findings have been produced on this website (see https://www.righttoknow.org.au/request/w...).

Ms McMullan is quotes as stating:

I find that the APS Employment Principles were not followed in relation to the recruitment process that led to the promotion of Ms Wu because either:

a. the role was incorrectly advertised as having an essential requirement, and this
potentially precluded eligible members of the community from applying for the
position; or

b. a candidate who did not meet an essential requirement of the role (and who was not
going to become eligible for some substantial period) was engaged over numerous
candidates who did meet this requirement.

I find that the relevant employment practices of the FCSA were therefore in contravention of section 10A of the PS Act, and that disclosable conduct, within the meaning of item 1 of the table in subsection 29(1) of the PID Act, has therefore been engaged in ... on the basis that the relevant employment practice in relation to the engagement of Ms Wu was conducted in contravention of the PS Act, being a Commonwealth law."

I know that the person who was unlawfully selected was Caitlin Wu because her promotion notice was published on the Federal Court's disclosure log (see PA2925-06/25 on the Federal Court's disclosure log - https://fedcourt.gov.au/disclosurelog).

In short, it has been established, by an investigation conducted under the PID Act, that Caitlin Wu was promoted in contravention of section 10A of the Public Service Act.

There are some very useful analyses about the applicability of conditional exemptions on this website. I adopt a useful analysis on the inapplicability of paragraph 47E(c) and 47E(d) in this instance (see https://www.righttoknow.org.au/request/u...).

Section 47E(c)

Section 47E(c) of the FOI Act provides:

A document is conditionally exempt if its disclosure under this Act would, or could reasonably be expected to, do any of the following:

(c) have a substantial adverse effect on the management or assessment of personnel or by an agency.

You claim that the selection report captured by the FOI request are clearly related to the “management of personnel”.

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. 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 management of personnel"

The management of personnel does not extend to the mismanagement or unlawful management of personnel. The management of personnel does not extend to the recruitment of Court personnel for unlawful ends, and where the recruitment was conducted contrary to law. 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 you are compelled to adopt where such an interpretation is open to her (see s 15AA of the Acts Interpretation Act 1901 (Cth)). Among the explicitly stated purposes of the FOI Act, one will find the following in s 3 of that Act:

The Parliament intends, by these objects, to promote Australia’s representative democracy by contributing towards the following:

a) increasing public participation in Government processes with a view to promoting better-informed decision making;
b) increasing scrutiny, discussion, comment and review of the Government’s activities.

In the face of overwhelming evidence (specifically, findings of an acting assistant commissioner at the APSC according to the terms of the PID investigation) that Mr Wu's recruitment was unlawful, the documents evidencing that unlawfulness cannot be conditionally exempted.

“Assessment of personnel”

I adopt the reasons that I have set out under the subheading “Management of personnel” and conclude that your characterisation of documents as being related to the assessment of personnel is exposed for what it is - bunk. And this is before the test of whether a substantial adverse effect on the assessment of personnel by the Commonwealth or an agency is even applied. It would be futile to address Ms Hammerton Cole’s “reasons” that the disclosure of the documents would, or could reasonably be expected to, have a substantial adverse effect because the documents are plainly not about the assessment of personnel.

Accordingly, s 47E(c) has not application to the document identified.

Section 47E(d)

Section 47E(d) of the FOI Act provides:

A document is conditionally exempt if its disclosure under this Act would, or could reasonably be expected to, do any of the following:

(d) have a substantial adverse effect on the proper and efficient conduct of the operations of an agency.

The FOI Guidelines provide the following elaboration on paragraph 47E(d):

6.123 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.

Your assessment of whether the documents would, or could reasonably be expected to, have a substantial adverse effect on the agency was separated from her assessment of whether the documents related to the “proper and efficient conduct of the operations of an agency”. What is set out in the passage above amounts to her reasons that the documents relate to the “proper and efficient conduct of the operations” of the Federal Court.

As I have already noted, 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 you 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.

The documents plainly reveal unlawful activities because they evidence the unlawful recruitment of Caitlin Wu as an NCF Registrar.

How could documents that have nothing to do with the proper and efficient operations of the Federal Court have a substantial adverse effect on the proper and efficient conduct of the operations of the Federal Court if they are granted access to?

How will the proper and efficient conduct of the Federal Court’s recruitment processes be affected by documents that disclose unlawfulness? No part of the proper and efficient operation of the Federal Court’s recruitment practices can be substantially and adversely affected because the documents have nothing to do with the proper and efficient operation of the Federal Court’s recruitment practices. The recruitment practices of the Federal Court do not extend to unlawful recruitment practices.

Importantly, “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.” So how is it that you think that the documents are subject to the conditional exemption in s 47E(d)? You have effectively disregarded, contrary to s 93A of the FOI Act, the Guidelines issued by the Information Commissioner and has proceeded to pretend that the documents do not disclose anything unlawful or do not disclose inefficiencies ...

In the face of overwhelming evidence (specifically, findings of an acting assistant commissioner at the APSC according to the terms of the PID investigation) that Mr Wu's recruitment was unlawful, the documents evidencing that unlawfulness cannot be conditionally exempted.

Accordingly, paragraphs 47E(c) and 47E(d) have no application in this case.

Another reason why section 47E does not apply

Section 47E does not apply to the selection report identifying Caitlin Wu as the successful candidate for the NCF Registrar role for reasons that have been set out here - https://www.righttoknow.org.au/request/r.... I reproduce those helpful and relevant reasons.

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, which evidences the unlawful decision of the selection panel to promote a candidate who has, as a result of a PID investigation, been found to be unmeritorious, 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.

Section 47 C

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 that opinions, 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 the Federal Court to extend to deliberations entered into to secure unlawful ends. That the ends were unlawful cannot be doubted because such a finding was made by an assistant commissioner at the APSC under a PID investigation. The Federal Court has not challenged the PID decision. On the contrary, the Federal Court has relied on the PID investigation to deny access to certain documents (see, for example, Nicola Colbran's internal review decision (https://www.righttoknow.org.au/request/u...) where she refuses to grant access to the documents requested because the documents would not inform debate on a matter of public importance as an "independent and impartial" investigation was conducted under the PID Act).

Therefore, the deliberations set out in the documents are not covered by s 47C of the FOI Act. Accordingly, the conditional exemption under s 47C does not apply.

Public Interest test

Given that Kate McMullan made an uncontested finding that section 10A of the Public Service Act was contravened when Ms Wu was promoted, it is in the public interest that the people who promoted her should be identified. If, for example, Sia Lagos, Andrea Jarratt and David Pringle were involved in the promotion decision, then one would be compelled to ask why they are still in the employ of the Commonwealth. How could people who have deliberately promoted an unmeritorious candidate ahead of other meritorious candidates still be employed by the Commonwealth (let alone be in positions of authority).

The public interest test has not been properly applied.

For the reasons set out, I challenge your decision and request a complete review of the decision to deny access to the two documents identified in your decision. I intend to apply for IC review if the person conducting the internal review fails to make a lawful 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,

Marcus

Ashok left an annotation ()

Hello Marcus

A redacted version of the selection report for the NCF registrar role has been uploaded to this website here -

https://www.righttoknow.org.au/request/u...

You can see that the people responsible for selecting Caitlin Wu were Sia Lagos, the current CEO and Principal Registrar of the Federal Court, David Pringle, the current CEO and Principal Registrar of the Federal Circuit and Family Court, and Andrea Jarratt.

Looks like if you hire non-meritorious candidates for registrar positions the Morrison government will set you up to head the federal courts of Australia. And scomo says an integrity commission that would have the power to investigate politicians and senior public servants for contraventions of Australia's laws would just be a kangaroo court.

Dear B Henderson,

As Ashok has helpfully pointed out:

"A redacted version of the selection report for the NCF registrar role has been uploaded to this website here -

https://www.righttoknow.org.au/request/u...

You can see that the people responsible for selecting Caitlin Wu were Sia Lagos, the current CEO and Principal Registrar of the Federal Court, David Pringle, the current CEO and Principal Registrar of the Federal Circuit and Family Court, and Andrea Jarratt."

There was not reason for you to provide anything less that what had been provided to Ashok. Another reason why your decision is not acceptable.

Yours sincerely,

Marcus

Marcus left an annotation ()

Ashok: Thanks for the notice mate. I can't believe I missed that selection report.

External FOI, Federal Court of Australia

OFFICIAL
Dear Marcus,

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 8 June 2022.

Kind regards

FOI Officer
Federal Court of Australia

show quoted sections

External FOI, Federal Court of Australia

1 Attachment

OFFICIAL
Dear Marcus,

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
 

 
You submitted a form called: FOI Review_
 
Your form reference code is: ICR_10-50238291-2832

To check the progress of your submission and/or confirm it has been
received you should contact the agency that provides the form. These
details are displayed below.
 
 
Office of the Australian Information Commissioner
[2]http://www.oaic.gov.au | [3]1300 363 992 | [4][email address]
GPO Box 5218, Sydney NSW 2001
 
 
Note: Please do not reply to this auto-generated email.
 

References

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3. file:///tmp/tel:1300 363 992
4. mailto:[email address]

Federal Court of Australia

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

 
You submitted a form called: FOI Review_
 
Your form reference code is: ICR_10-50238291-2832

To check the progress of your submission and/or confirm it has been
received you should contact the agency that provides the form. These
details are displayed below.
 
 
Office of the Australian Information Commissioner
[2]http://www.oaic.gov.au | [3]1300 363 992 | [4][email address]
GPO Box 5218, Sydney NSW 2001
 
 
Note: Please do not reply to this auto-generated email.
 

References

Visible links
2. http://www.oaic.gov.au/
3. file:///tmp/tel:1300 363 992
4. mailto:[email address]

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