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Sia Lagos warned on job rule sidestep by her General Counsel

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Dear Federal Court of Australia,

According to an article published in the Australian (Federal Court boss warned on job rule sidestep), acting assistant commissioner Kate McMullan investigated the recruitment practices of the Federal Court. The article notes that the acting assistant commissioner did not substantiate allegations of impropriety in the recruitment processes which resulted in the appointment of eight registrars 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 workload” of the roles.

Nonetheless, the General Counsel of the Federal Court had reservations about the way in which people were being offered independent flexibility arrangements to “in effect, get around the [SES] cap.” The General Counsel of the Federal Court was also concerned about the broadbanding of duties across SES classifications. As the journalists suggest, it is explicitly against the law to classify a single role over more than one classification on the basis of “relative complexity and workload” (in other words, a broadband - see Public Service Classifications Rules 2000, r 9(5)).

The General Counsel’s concerns appear to be justified, which begs the question how it was that the acting assistant commissioner of the APSC was not troubled by the broadbanding of duties across SES classifications. It seems that the acting assistant commissioner messed up the investigation by making findings that cannot be supported under the law.

I would like to understand how an acting assistant commissioner of the Australian Public Service Commission could have reached the conclusions that she did.

Under the FOI Act, I request access to:

i. documents recording the “role review processes” that Kate McMullan based her conclusions on,
ii. documents setting out the classification assessments for the Legal 2 and SES1 versions of the National Judicial Registrar role that Kate McMullan would presumably have referred to when drawing her conclusions,
iii. documents that show that it is possible to broadband a group of duties over an SES classification even though the Public Service Classification Rules forbid such an act.

Yours faithfully,

Velan

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

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,

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 'Sia Lagos warned on job rule sidestep by her General Counsel'.

In my FOI request I requested the following documents:

i. documents recording the “role review processes” that Kate McMullan based her conclusions on,
ii. documents setting out the classification assessments for the Legal 2 and SES1 versions of the National Judicial Registrar role that Kate McMullan would presumably have referred to when drawing her conclusions,
iii. documents that show that it is possible to broadband a group of duties over an SES classification even though the Public Service Classification Rules forbid such an act.

You refused access to (iii) under s 24A.

I accept that decision.

I do not accept your decisions and reasons for refusing access to (i) and (ii).

You have refused access to (i) and (ii) on the basis of 4 conditional exemptions. None of your reasons for doing so make sense.

You state:

I have assessed the documents found in response to paragraphs (i) and (ii) of your request and consider that they all contain deliberative matter. As outlined above, these documents consist of email communications, including attachments, between the Court and Ms McMullan in relation to Ms McMullan's investigation regarding a public interest disclosure (PID). The documents record the process by which the PID investigation was undertaken and disclose material prepared or recorded as part of the PID deliberative process, before any decision was made regarding that PID ... The documents record an exchange about the investigation conducted by Ms McMullan, all of which occurred before final conclusions/recommendations were reached by Ms McMullan.

Your reasons are bewildering. I asked the Federal Court for "documents recording the “role review processes” that Kate McMullan based her conclusions on" and "documents setting out the classification assessments for the Legal 2 and SES1 versions of the National Judicial Registrar role that Kate McMullan would presumably have referred to when drawing her conclusions." Those documents were not prepared in the course of the PID investigation conducted by Ms McMullan. They do not, as you claim, "record the process by which the PID investigation was undertaken and disclose material prepared or recorded as part of the PID deliberative process, before any decision was made regarding that PID." They precede the PID investigation. They are documents about the review by members of Federal Court staff of the SES1 National Judicial Registrar role that was broadbanded to the "Legal 2" broadband (or vice versa) "depending on the relative complexity [of the role] and the work load."

The documents that I requested are documents that evidence a role review for the National Judicial Registrar role that was conducted by the Federal Court in 2018 or 2019, well before Ms McMullan's PID investigation commenced in May 2020. All of this talk about the documents being document recording "the process by which the PID investigation was undertaken and disclos[ing] material prepared or recorded as part of the PID deliberative process, before any decision was made regarding that PID", is of no relevance.

You are clearly wrong about the documents and your reasons in support are nonsensical verbiage. It's just 18 pages of gobbledygook.

There's another pressing issue.

I made an identical request to the Australian Public Service Commission.

The response I received, on 24 March 2022, by Ms Giorgina Strangio, the Assistant Commissioner for Integrity, Performance and Employment Policy, is set out here: https://www.righttoknow.org.au/request/f....

In respect of (i), in her decision, she stated:

All reasonable steps have been taken to find any document relevant to Part i. of your request. I refuse Part i. of your request under section 24A of the FOI Act. I cannot confirm or deny the existence of documents within scope of Part i., but I consider the documents requested are more closely connected with the functions of the Federal Court of Australia.

In respect of (ii), in her decision, she stated:

All reasonable steps have been taken to find any document relevant to Part ii. of your request. I refuse Part ii. of your request under section 24A of the FOI Act. I cannot confirm or deny the existence of documents within scope of Part ii., but I consider the documents requested are more closely connected with the functions of the Federal Court of Australia

Ms Strangio's decision was the subject of internal review. It was reviewed by Mr Patrick Hetherington, the First Assistant Commissioner of the Australian Public Service Commission. His internal review decision was dated 7 April 2022 and can be accessed here: https://www.righttoknow.org.au/request/f...

Mr Hetherington affirmed Ms Strangio's decision.

How could it be that two commissioners of the APSC have stated that they have no documents that satisfy (i) and (ii) and have refused access to my request for documents under s 24A of the FOI Act, while you claim that the reason why access is refused is because the documents exist and were provided to the Ms McMullan of the APSC during a PID investigation? Somebody is lying to me. Are you suggesting that two commissioners of the APSC have lied to me, or are you lying to me?

I have read some of the decisions you have provided and others on this website feel that you are not an objective or trustworthy decision maker (see, for example, https://www.righttoknow.org.au/request/c...). It's hard to disagree with their assessments.

I want 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,

Velan

External FOI, Federal Court of Australia

1 Attachment

OFFICIAL
Dear Velan

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 Velan

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 Velan please sign in and let everyone know.