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Underlying information used for classification evaluations for the "Legal 2" and "SES1" National Judicial Registrar roles in the Federal Court of Australia

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Dear Australian Public Service Commission,

I refer to my earlier request for classification evaluation documents (https://www.righttoknow.org.au/request/c...). Both Claire Hammerton Cole and Scott Tredwell refused access to those documents on the ground that the documents do not exist (s 24A of the FOI Act). That is very concerning because those documents should exist.

On 9 February 2022 an article was published in The Australian. In that article, Ms Kate McMullan, an acting assistant commissioner in the Australian Public Service Commission, stated that the National Judicial Registrar role was the subject of a "role review". On this basis, Ms McMullan concluded that:

a) it was possible to have the National Judicial Registrar role classified at both the "Legal 2" and "SES1" classification bands; and
b) there was nothing improper about classifying the role over both the "Legal 2" and "SES1" classification bands.

It is actually unlawful to classify a role over 2 or more classification bands if at least one of those classifications bands is a senior executive service classification band (see subrules 9(4) and 9(5) of the Public Service Classification Rules 2000). I am not the only person to have noticed this glaring error in Ms McMullan's conclusions. Presumably, her conclusions were based on materials provided to her by people in the Federal Court. How else could she have concluded that a "role review" was undertaken?

Because Ms Hammerton Cole and Mr Tredwell of the Federal Court have refused to provide me with the classification evaluation documents that I requested, I have decided to ask the Australian Public Service Commission to provide other documents.

Under the FOI Act, I request:

a) any and all documents provided to Ms Kate McMullan or the APSC setting out the "role review" that Kate McMullan referred to in her investigation reasons;
b) any and all documents provided to Ms Kate McMullan or the APSC identifying the National Judicial Registrar role being classified over the "Legal 2" and "SES1" classifications.

You may provide the documents in digital format by return email.

Yours faithfully,

Martin

FOI, Australian Public Service Commission

5 Attachments

OFFICIAL

Dear Applicant

 

The Australian Public Service Commission (APSC) is writing to acknowledge
receipt of your request under the Freedom of Information Act 1982 (FOI
Act).

 

The timeframe for responding to your request is 30 days from the date of
receipt. This timeframe may be extended in certain circumstances. You will
be notified if these circumstances arise and the timeframe is extended.

 

Regards

 

FOI OFFICER

Legal Services

 

Australian Public Service Commission

Level 4, B Block, Treasury Building, Parkes Place West, PARKES ACT 2600
GPO Box 3176 CANBERRA ACT 2601

 

t: 02 6202 3500  w: [1]www.apsc.gov.au        

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This email and any attachments may contain confidential or legally
privileged information, and neither are waived or lost if the email has
been sent in error. If you have received this email in error, please
delete it (including any copies) and notify the sender. Please consult
with APSC Legal Services before using disclosing any part of this email or
attachments to a third party.

 

 

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FOI, Australian Public Service Commission

7 Attachments

OFFICIAL

A decision notice is attached.

 

Regards

 

FOI OFFICER

Legal Services

 

Australian Public Service Commission

Level 4, B Block, Treasury Building, Parkes Place West, PARKES ACT 2600
GPO Box 3176 CANBERRA ACT 2601

 

t: 02 6202 3500  w: [1]www.apsc.gov.au        

[2]three hexagons[3]twitter icon [4]facebook
icon                          

 

 

 

 

This email and any attachments may contain confidential or legally
privileged information, and neither are waived or lost if the email has
been sent in error. If you have received this email in error, please
delete it (including any copies) and notify the sender. Please consult
with APSC Legal Services before using disclosing any part of this email or
attachments to a third party.

 

 

 

 

From: FOI <[email address]>
Sent: Thursday, 28 April 2022 4:44 PM
To: Martin <[FOI #8792 email]>
Cc: FOI <[email address]>
Subject: SHC22-27365 Acknowledgement [SEC=OFFICIAL]

 

OFFICIAL

Dear Applicant

 

The Australian Public Service Commission (APSC) is writing to acknowledge
receipt of your request under the Freedom of Information Act 1982 (FOI
Act).

 

The timeframe for responding to your request is 30 days from the date of
receipt. This timeframe may be extended in certain circumstances. You will
be notified if these circumstances arise and the timeframe is extended.

 

Regards

 

FOI OFFICER

Legal Services

 

Australian Public Service Commission

Level 4, B Block, Treasury Building, Parkes Place West, PARKES ACT 2600
GPO Box 3176 CANBERRA ACT 2601

 

t: 02 6202 3500  w: [5]www.apsc.gov.au        

[6]three hexagons[7]twitter icon [8]facebook
icon                          

 

 

 

 

This email and any attachments may contain confidential or legally
privileged information, and neither are waived or lost if the email has
been sent in error. If you have received this email in error, please
delete it (including any copies) and notify the sender. Please consult
with APSC Legal Services before using disclosing any part of this email or
attachments to a third party.

 

 

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Dear Australian Public Service Commission,

Please pass this on to the person who conducts Freedom of Information reviews.

I am writing to request an internal review of Australian Public Service Commission's handling of my FOI request 'Underlying information used for classification evaluations for the "Legal 2" and "SES1" National Judicial Registrar roles in the Federal Court of Australia'.

I have just read the reasons of an other access applicant who has requested documents on nearly the same terms that I did. This access applicant's reasons have been recorded on the Right to Know website here -

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

The access applicant's reasons are very convincing. I adopt them and reproduce his reasons for internal review below:

"You will note that I asked the APSC for all documents (including classification assessments, broadbanding proposals etc) that were provided to Kate McMullan of the Australian Public Service Commission which support her conclusion that allegations of impropriety and, presumably, unlawful conduct in the context of the recruitment of National Judicial Registrars were unsubstantiated 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 work load.”

What does this mean? It means that the documents I am asking for are:

1. documents that were provided to Kate McMullan; and
2. are evidence that “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 work load.”

First, in your decision you claim that the documents are exempt for, among other things, having personal information.

That immediately raises red flags.

More than anybody else in the country, the assistant commissioner for integrity, performance and employment policy would know that "role reviews" are reviews of roles. To put it in terms that you will understand, an assessment of a role is not an assessment of a person. It is an assessment of the groups of duties relative to the Commissioner's work level standards. It is impersonal. It has nothing to do with an individual or individuals. I don't need to quote chapter and verse from the Australian Public Service Classification Guide, which is available here:

https://www.apsc.gov.au/working-aps/aps-...

Going back to the documents, you claim that the document provided to Kate McMullan of the APSC that evidences that “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 work load" is exempt for having personal information. How could that be? A role review has nothing to do with individuals. Therefore I am immediately suspicious of your claims that this document is, in fact, the document that I requested, or if it is, that the conditional exemptions you have claimed do in fact apply.

Second, you claim that the document is a recruitment outcome document. Another red flag. How can the outcome of a recruitment process determine the scope of a role, and the groups of duties to be performed in that role, by reference to the Commissioner's work level standards? The role assessment, whether it is a review or whether it is an assessment for a new role necessarily precedes any recruitment process and certainly the outcome of that process.

Again, this document cannot be what I asked for.

Moreover, you claim that parts of the document are exempt on the ground of irrelevance. What could be irrelevant in a document that is a record of the reassessment of the scope of a role (i.e. the groups of duties to be performed) by reference to the Commissioner's work level standards?

Do you understand why your decision letter makes no sense?

Having read some of the responses that you have provided, I have had cause to question whether you know what you are doing. This decision has only cemented my concerns about your ability to make lawful decisions under the FOI Act.

That is to say nothing, of course, of the fact that the APSC is under investigation by the Commonwealth Ombudsman for the PID investigation that Kate McMullan, the then assistant commissioner for integrity, performance and employment policy, conducted. It was obviously botched because the Ombudsman conducted a preliminary inquiry and, once that inquiry ended, the Ombudsman decided to investigate the APSC under s 8 of the Ombudsman Act, immediately escalating the investigation to "Category 4". How the Australian Public Service Commissioner could look senators in the eye and claim, as he does in his hot pocket brief, that the APSC takes PID investigations seriously is beyond me. He must have been one hell of a diplomat.

I invite the person who will be conducting the internal review to make a lawful decision and one that can withstand scrutiny on its face (i.e. I've not even seen these documents and based on the description of the documents have been able to determine that what you have recorded in your decision is nonsense)."

A full history of my FOI request and all correspondence is available on the Internet at this address: https://www.righttoknow.org.au/request/u...

Yours faithfully,

Martin

FOI, Australian Public Service Commission

5 Attachments

OFFICIAL

Dear Applicant

 

The Australian Public Service Commission (APSC) is writing to acknowledge
receipt of your request for internal review under the Freedom of
Information Act 1982 (FOI Act).

 

The timeframe for responding to your internal review request is 30 days
from the date of receipt. This timeframe for internal review may be
extended in very limited circumstances. You will be notified if these
circumstances arise and the timeframe is extended.

 

Regards

 

FOI OFFICER

Legal Services

 

Australian Public Service Commission

Level 4, B Block, Treasury Building, Parkes Place West, PARKES ACT 2600
GPO Box 3176 CANBERRA ACT 2601

 

t: 02 6202 3500  w: [1]www.apsc.gov.au        

[2]three hexagons[3]twitter icon [4]facebook
icon                          

 

 

 

 

This email and any attachments may contain confidential or legally
privileged information, and neither are waived or lost if the email has
been sent in error. If you have received this email in error, please
delete it (including any copies) and notify the sender. Please consult
with APSC Legal Services before using disclosing any part of this email or
attachments to a third party.

 

 

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FOI, Australian Public Service Commission

6 Attachments

OFFICIAL

Dear Applicant,

 

Please see attached.

 

Kind regards

 

FOI OFFICER

Legal Services

 

Australian Public Service Commission

Level 4, B Block, Treasury Building, Parkes Place West, PARKES ACT 2600
GPO Box 3176 CANBERRA ACT 2601

 

t: 02 6202 3500  w: [1]www.apsc.gov.au        

[2]three hexagons[3]twitter icon [4]facebook
icon                          

 

 

 

 

This email and any attachments may contain confidential or legally
privileged information, and neither are waived or lost if the email has
been sent in error. If you have received this email in error, please
delete it (including any copies) and notify the sender. Please consult
with APSC Legal Services before using disclosing any part of this email or
attachments to a third party.

 

show quoted sections

Australian Public Service Commission

 
 
  [1]Office of the Australian Information Reference Code:  
Commissioner ICR_10-49266136-2653
 

 
You submitted a form called: FOI Review_
 
Your form reference code is: ICR_10-49266136-2653

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

Australian Public Service Commission

 
 
  [1]Office of the Australian Information Reference Code:  
Commissioner ICR_10-49266136-2653
 

 
You submitted a form called: FOI Review_
 
Your form reference code is: ICR_10-49266136-2653

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]

Australian Public Service Commission

1 Attachment

Our reference: MR22/00957

 

By email: [FOI #8792 email]

Receipt of your IC review application  

Thank you for your application for Information Commissioner Review (IC
review).

The Office of the Australian Information Commissioner (OAIC) is
considering your application.

If you wish to advise the OAIC of any changes to your circumstances,
including your contact details or if your FOI request has been resolved,
please write to [email address] and quote MR22/00957.

 

Yours sincerely

 

Freedom of Information Regulatory Group

Office of the Australian Information Commissioner

 

 

 

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