Dear Department of the Prime Minister and Cabinet,

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/f...).

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 Department of Prime Minister & Cabinet would have requested a briefing from the Australian Public Service Commissioner 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 PM&C.

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 Department of Prime Minister & Cabinet 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, Department of the Prime Minister and Cabinet

4 Attachments

OFFICIAL

FOI/2022/131

 

Dear Velan

 

Thank you for your email dated 28 April 2022, received by the Department
of the Prime Minister and Cabinet (the Department), in which you made a
request under the Freedom of Information Act 1982 (the FOI Act) in the
following terms:

 

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.

 

Timeframe for receiving your decision

 

We 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 28 May 2022. The period of
30 days may be extended in certain circumstances under the FOI Act. We
will write to you regarding any extension of time that may relate to your
request.

 

Charges

 

Agencies may decide that an applicant is liable to pay a charge in respect
of a request for access to documents. If the Department decides that you
are liable to pay a charge, we will send you a preliminary assessment of
the charge as soon as possible.

 

Publication of documents

 

Please note that information released under the FOI Act may later be
published online on our disclosure log at
[1]https://www.pmc.gov.au/government/depart...,
subject to certain exceptions. If you think you might wish to raise any
objections to the publication of any of the information which may be
released to you please contact us by email at [2][DPMC request email].  If you
do wish to object to the publication of information, you would need to
provide supporting reasons.

 

Exclusion of officers’ names and contact details

 

For documents that fall within scope of the request, it is the
Department’s policy to withhold:

o any person’s signature;
o the names and contact details of Australian Public Service officers
not in the Senior Executive Service (SES);
o the mobile or direct numbers of SES officers;
o the names and contact details of Ministerial staff at a level below
Chief of Staff.

 

The names and other details of SES officers will not be withheld unless
there is some reason for that information to be exempt from release. If
you require signatures, the names and contact details of non-SES officers
or Ministerial staff below the level of Chief of Staff, or the mobile or
direct numbers of SES officers please let us know at [3][DPMC request email] so
the decision-maker may consider; otherwise we will take it that you agree
to that information being excluded from the scope of your request (that
is, the information will be treated as irrelevant and redacted from any
documents for release).

 

Further information on FOI processing can be found at the website of the
Office of the Australian Information Commissioner
[4]https://www.oaic.gov.au/freedom-of-infor....

 

Yours sincerely

 

 

Adviser | FOI Section[]

Department of the Prime Minister and Cabinet

p. (02) 6271 5849

Ngunnawal Country, One National Circuit  Barton  ACT  2600  |  PO Box
6500  CANBERRA  ACT  2600
e. [5][email address]  w. [6]pmc.gov.au

[7]cid:image001.jpg@01D78E24.FF2DAFB0[8]cid:image002.jpg@01D78E24.FF2DAFB0

[9]cid:image003.jpg@01D78E24.FF2DAFB0 The
Department
acknowledges
and pays
respect to
the past,
present and
emerging
Elders and
Traditional
Custodians
of Country,
and the
continuation
of cultural,
spiritual
and
educational
practices of
Aboriginal
and Torres
Strait
Islander
peoples.

 

 

______________________________________________________________________ 
IMPORTANT: This message, and any attachments to it, contains information 
that is confidential and may also be the subject of legal professional or 
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you 
must not review, copy, disseminate or disclose its contents to any other 
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you 
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References

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2. mailto:[DPMC request email]
3. mailto:[DPMC request email]
4. https://www.oaic.gov.au/freedom-of-infor...
5. mailto:[email address]
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FOI, Department of the Prime Minister and Cabinet

5 Attachments

OFFICIAL

FOI/2022/131

 

Dear Velan

 

Please find attached the decision regarding your request under the Freedom
of Information Act 1982.

 

Yours sincerely

 

 

Adviser | FOI Section[]

Department of the Prime Minister and Cabinet

p. (02) 6271 5849

Ngunnawal Country, One National Circuit  Barton  ACT  2600  |  PO Box
6500  CANBERRA  ACT  2600
e. [1][email address]  w. [2]pmc.gov.au

[3]cid:image001.jpg@01D78E24.FF2DAFB0[4]cid:image002.jpg@01D78E24.FF2DAFB0

[5]cid:image003.jpg@01D78E24.FF2DAFB0 The
Department
acknowledges
and pays
respect to
the past,
present and
emerging
Elders and
Traditional
Custodians
of Country,
and the
continuation
of cultural,
spiritual
and
educational
practices of
Aboriginal
and Torres
Strait
Islander
peoples.

 

 

______________________________________________________________________ 
IMPORTANT: This message, and any attachments to it, contains information 
that is confidential and may also be the subject of legal professional or 
other privilege. If you are not the intended recipient of this message,
you 
must not review, copy, disseminate or disclose its contents to any other 
party or take action in reliance of any material contained within it. If
you 
have received this message in error, please notify the sender immediately
by 
return email informing them of the mistake and delete all copies of the 
message from your computer system. 
______________________________________________________________________

References

Visible links
1. mailto:[email address]
2. https://www.pmc.gov.au/
3. https://twitter.com/pmc_gov_au
4. https://www.linkedin.com/company/departm...