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Sia Lagos warned on job rule sidestep by her General Counsel

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Dear Attorney-General's Department,

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, perhaps in the context of that Ombudsman investigation, the AGD would have requested a briefing from the Federal Court and as part of that briefing the documents that I requested of the Federal Court and the Australian Public Service Commission may have been provided to the AGD.

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.

To the extent that the AGD has the relevant documents, 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

FOI Requests, Attorney-General's Department

OFFICIAL

 

Dear Velan

Freedom of Information Request FOI22/092

I refer to your request to the Attorney-General's Department (the
department) under the Freedom of Information Act 1982 (FOI Act) for access
to documents.

I have understood your request to be for:

To the extent that the AGD has the relevant documents, 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.

If you disagree with this interpretation of your request, please let me
know in writing as soon as possible.

The department received your request on 28 April 2022 and the 30 day
statutory period for processing your request commenced from the day after
that date. You should therefore expect a decision from us by 31 May 2022.
However, the period of 30 days may be extended if the department needs to
consult third parties or for other reasons. We will advise you if this
happens.

The department's practice is to not disclose personal information of staff
of the department and other government authorities, where that information
is not publicly known or routinely disclosed (e.g. names of junior
officers and contact information). The names of senior officers will
generally be disclosed. In addition, duplicates and incomplete email
chains within the scope of the FOI request will be excluded.

Please note that, with some exceptions (such as personal information),
documents released under the FOI Act may later be published online on the
department's disclosure log
[1]http://www.ag.gov.au/RightsAndProtection....

If you have any questions, please contact me by telephone on (02) 6141
6666 or by email to [2][AGD request email].

Sincerely

Joanna

 

 

Joanna Baker

Assistant Director

Freedom of Information and Privacy | Strategy and Governance Branch

Attorney-General’s Department

T: 02 6141 6666 | E: [3][AGD request email]

OFFICIAL

When you make a request for documents or an inquiry about privacy matters,
the Attorney-Generals Department will only collect your personal
information where it is reasonably necessary for, or directly related to,
our functions under the Freedom of Information Act 1982 or the Privacy Act
1988. We may collect your name, email address and telephone number so that
we can contact you about your request under the Freedom of Information Act
for access to documents or access to, or correction of, personal
information; or a complaint you have made or your request for access to,
or correction of, personal information under the Privacy Act. If your
request concerns your personal information, we will collect the minimum
amount of evidence necessary to verify your identity. The handling of your
personal information is protected by the Privacy Act 1988 and our privacy
policy is available at http://www.ag.gov.au/Pages/Privacystatem....
If you have an enquiry or complaint about your privacy, please contact the
Privacy Contact Officer on 02 6141 2660 or via e-mail [email address].
If you have received this transmission in error please notify us
immediately by return e-mail and delete all copies. If this e-mail or any
attachments have been sent to you in error, that error does not constitute
waiver of any confidentiality, privilege or copyright in respect of
information in the e-mail or attachments.

References

Visible links
1. http://www.ag.gov.au/RightsAndProtection...
2. mailto:[AGD request email]
3. mailto:[AGD request email]

FOI Requests, Attorney-General's Department

1 Attachment

OFFICIAL

 

Dear Velan

 

Freedom of Information Request FOI22/092

 

I refer to your request to the Attorney-General's Department (the
department) under the Freedom of Information Act 1982 (FOI Act) for access
to documents. 

 

The purpose of this email is to provide you with a decision in response to
that request. 

 

Please find attached your decision letter, including your review rights.

 

If you have any questions, please contact me by telephone on (02) 6141
6666 or by email to [1][AGD request email].

 

Yours sincerely

 

Joanna

 

Joanna Baker

Assistant Director

Freedom of Information and Privacy
Attorney-General’s Department

T: (02) 6141 6666 | E: [2][AGD request email]

OFFICIAL

When you make a request for documents or an inquiry about privacy matters,
the Attorney-Generals Department will only collect your personal
information where it is reasonably necessary for, or directly related to,
our functions under the Freedom of Information Act 1982 or the Privacy Act
1988. We may collect your name, email address and telephone number so that
we can contact you about your request under the Freedom of Information Act
for access to documents or access to, or correction of, personal
information; or a complaint you have made or your request for access to,
or correction of, personal information under the Privacy Act. If your
request concerns your personal information, we will collect the minimum
amount of evidence necessary to verify your identity. The handling of your
personal information is protected by the Privacy Act 1988 and our privacy
policy is available at http://www.ag.gov.au/Pages/Privacystatem....
If you have an enquiry or complaint about your privacy, please contact the
Privacy Contact Officer on 02 6141 2660 or via e-mail [email address].
If you have received this transmission in error please notify us
immediately by return e-mail and delete all copies. If this e-mail or any
attachments have been sent to you in error, that error does not constitute
waiver of any confidentiality, privilege or copyright in respect of
information in the e-mail or attachments.

References

Visible links
1. mailto:[AGD request email]
2. mailto:[AGD request email]

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.