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Sia Lagos warned on job rule sidestep by her General Counsel

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Dear Commonwealth Ombudsman,

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.

On 26 February 2022 I made the following request of the Australian Public Service Commission:

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.

I made an identical request of the Federal Court on 26 February 2022.

Ms Giorgina Strangio, the Assistant Commissioner for Integrity, Performance and Employment Policy, refused to provide me with the documents because she claimed under s 24A of the FOI Act that they could not be found (see https://www.righttoknow.org.au/request/f...). On internal review of Ms Strangio's decision, Mr Patrick Hetherington, the First Assistant Commissioner of the APSC, also refused to provide me with the documents because he claimed under s 24A of the FOI Act that they could not be found (see https://www.righttoknow.org.au/request/f...).

Yesterday, I received a decision from Ms Claire Hammerton Cole of the Federal Court refusing to provide the documents to me on the basis that the documents were conditionally exempt, and that it would be against the public interest to provide the documents to me, because the documents were provided to the Australian Public Service Commission in the course of Kate McMullan's PID investigation (see https://www.righttoknow.org.au/request/s...).

If the documents were provided to the APSC, then the First Assistant Commissioner of the APSC should not have refused access under s 24A. If they were not provided to the APSC, then Ms Hammerton Cole, a Registrar of the Federal Court, has deceived me. Both Ms Hammerton Cole and Mr Hetherington cannot be correct.

My request is an anodyne one. I have requested classification evaluation documents that would, in the ordinary course, be provided to the public. There is no public interest is refusing access to documents that set out how classifications of roles in an agency were undertaken, or how role reviews were conducted.

It is my understanding that the Office of the Commonwealth Ombudsman is now under s 8 of the Ombudsman Act investigating the way that Ms McMullan conducted her PID investigation (see the article Spotlight shines back on watchdog published on page 3 of The Australian on 29 March 2022). It is my hope that the documents that I requested of the Federal Court and the Australian Public Service Commission may have been provided to the Office of the Commonwealth Ombudsman.

I just want to understand how an acting assistant commissioner of the Australian Public Service Commission could have reached the conclusions that she did, and the Federal Court and the APSC have made it very difficult for me to do that.

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.

I would be very grateful if the Office of the Commonwealth Ombudsman provided these documents.

Yours faithfully,

Velan

Information Access, Commonwealth Ombudsman

1 Attachment

OFFICIAL

 

Ombudsman reference: FOI-2022-10049

 

Dear Velan,

 

I acknowledge receipt of your email dated 28 April 2022 (text included
below), in which you have requested access to documents under the Freedom
of Information Act 1982 (FOI Act).

 

Duplicates

Where there are multiple copies of identical documents within our records
which fall within the scope of your request, I intend to only consider and
make a decision on one copy of each identical document.

 

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You should expect a decision from us within 30 days from the date we
received your FOI request.

This 30 day period may be extended if we need to consult third parties,
impose a charge (a fee for processing your request) or for other reasons.
We will let you know if this happens. 

 

Contacts

If you have any questions about this matter, you may contact me by email
to [1][email address] or by phone to 1300 362 072.

 

Yours sincerely,

 

Sine Dellit

 

Senior Legal Officer | Legal Team

Commonwealth Ombudsman

Ph: 1300 362 072 | Fax: 02 6276 0123

Email: [2][CO request email]

 

[3][IMG]

Influencing systemic improvement in public administration

 

The Office of the Commonwealth Ombudsman acknowledges the traditional
owners of country throughout Australia and their continuing connection to
land, culture and community. We pay our respects to elders past and
present.

 

 

Dear Commonwealth Ombudsman,

 

 

 

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.

 

 

 

On 26 February 2022 I made the following request of the Australian Public
Service Commission:

 

 

 

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.

 

 

 

I made an identical request of the Federal Court on 26 February 2022.

 

 

 

Ms Giorgina Strangio, the Assistant Commissioner for Integrity,
Performance and Employment Policy, refused to provide me with the
documents because she claimed under s 24A of the FOI Act that they could
not be found (see
[4]https://aus01.safelinks.protection.outlo...).
On internal review of Ms Strangio's decision, Mr Patrick Hetherington, the
First Assistant Commissioner of the APSC, also refused to provide me with
the documents because he claimed under s 24A of the FOI Act that they
could not be found (see
[5]https://aus01.safelinks.protection.outlo...).

 

 

 

Yesterday, I received a decision from Ms Claire Hammerton Cole of the
Federal Court refusing to provide the documents to me on the basis that
the documents were conditionally exempt, and that it would be against the
public interest to provide the documents to me, because the documents were
provided to the Australian Public Service Commission in the course of Kate
McMullan's PID investigation (see
[6]https://aus01.safelinks.protection.outlo...).

 

 

 

If the documents were provided to the APSC, then the First Assistant
Commissioner of the APSC should not have refused access under s 24A. If
they were not provided to the APSC, then Ms Hammerton Cole, a Registrar of
the Federal Court, has deceived me. Both Ms Hammerton Cole and Mr
Hetherington cannot be correct.

 

 

 

My request is an anodyne one. I have requested classification evaluation
documents that would, in the ordinary course, be provided to the public.
There is no public interest is refusing access to documents that set out
how classifications of roles in an agency were undertaken, or how role
reviews were conducted.

 

 

 

It is my understanding that the Office of the Commonwealth Ombudsman is
now under s 8 of the Ombudsman Act investigating the way that Ms McMullan
conducted her PID investigation (see the article Spotlight shines back on
watchdog published on page 3 of The Australian on 29 March 2022). It is my
hope that the documents that I requested of the Federal Court and the
Australian Public Service Commission may have been provided to the Office
of the Commonwealth Ombudsman.

 

 

 

I just want to understand how an acting assistant commissioner of the
Australian Public Service Commission could have reached the conclusions
that she did, and the Federal Court and the APSC have made it very
difficult for me to do that.

 

 

 

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.

 

 

 

I would be very grateful if the Office of the Commonwealth Ombudsman
provided these documents.

 

 

 

Yours faithfully,

 

 

 

Velan

 

 

 

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The Office of the Commonwealth Ombudsman acknowledges the traditional
owners of country throughout Australia and their continuing connection to
land, culture and community. We pay our respects to elders past and
present.

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Information Access, Commonwealth Ombudsman

2 Attachments

OFFICIAL: Sensitive

 

Dear Veelan,

 

I attach the decision for your FOI request FOI-2022-10049.

 

Please note that yesterday, Monday 30 May 2022, was a public holiday in
the ACT.

 

Yours sincerely,

 

Sine Dellit

 

Senior Legal Officer | Legal Team

Commonwealth Ombudsman

Ph: 1300 362 072 | Fax: 02 6276 0123

Email: [1][CO request email]

 

[2][IMG]

Influencing systemic improvement in public administration

 

The Office of the Commonwealth Ombudsman acknowledges the traditional
owners of country throughout Australia and their continuing connection to
land, culture and community. We pay our respects to elders past and
present.

 

 

The Office of the Commonwealth Ombudsman acknowledges the traditional
owners of country throughout Australia and their continuing connection to
land, culture and community. We pay our respects to elders past and
present.

show quoted sections

References

Visible links
1. mailto:[CO request email]
2. https://aus01.safelinks.protection.outlo...

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.