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Vacancy notices for National Judicial Registrar positions

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Dear Federal Court of Australia,

Under the FOI Act I request:

a) the vacancy notice for the National Judicial Registrar role in the Federal Court that Susan O'Connor applied for and came to fill;
b) the vacancy notice for the National Judicial Registrar role in the Federal Court that Phillip Allaway applied for and came to fill;
c) the vacancy notice for the National Judicial Registrar role in the Federal Court that Matthew Benter applied for and came to fill;
d) the vacancy notice for the National Judicial Registrar role in the Federal Court that Rupert Burns applied for and came to fill;
e) the vacancy notice for the National Judicial Registrar role in the Federal Court that Claire Gitsham applied for and came to fill;
f) the vacancy notice for the National Judicial Registrar role in the Federal Court that David Ryan applied for and came to fill; and
g) the vacancy notice for the National Judicial Registrar role in the Federal Court that Tuan Van Le applied for and was came to fill.

Yours faithfully,

Allan

External FOI, Federal Court of Australia

1 Attachment

OFFICIAL
Dear Allan

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 Allan

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 'Vacancy notices for National Judicial Registrar positions'.

You have not provided the documents that I requested in my FOI request.

In your decision you state:

"The four (4) documents to which I have decided to grant you access are listed below:

1. Gazette Notice - Senior National Judicial Registrar;
2. Gazette Notice - National Judicial Registrar & District Registrar;
3. Gazette Notice - Judicial Registrar; and
4. Gazette Notice - Deputy District Registrar."

The Gazette Notices make clear that:

a) the Senior National Judicial Registrar role is classified as the SES Band 2 level;
b) the Judicial Registrar role is classified at the Executive Level 2 level;
c) the National Judicial Registrar & District Registrar role is classified at the SES Band 1 level.
d) the Deputy District Registrar role is classified at the Executive Level 2 level.

In relation to (c), the vacancy notice you have directed me to is identical to the vacancy notices for the roles that Murray Belcher, Russell Trott and Tim Luxton were promoted to. Accordingly, that vacancy notice has no application to Susan O'Connor, Phillip Allaway, Matthew Benter, Rupert Burns, Claire Gitsham, David Ryan and Tuan Van Le.

Nor does (a) apply to Susan O'Connor, Phillip Allaway, Matthew Benter, Rupert Burns, Claire Gitsham, David Ryan and Tuan Van Le because not one of these officers is listed as an SES Band 2 employee in the list of SES employees set out in PA 2925-06/9 of the Federal Court's disclosure log.

Also, the position descriptions for the "National Judicial Registrar" roles provide, contrary to subrule 9(5) of the Public Service Classification Rules 2000, that the roles are classified across both the EL2 and SES1 classification bands (i.e. a broadband).

It is clear that a National Judicial Registrar is not a Judicial Registrar because National Judicial Registrars "perform a leadership role for Judicial Registrar ... at the local and national level".

Not one of these documents addresses my FOI request.

I requested the following documents:

a) the vacancy notice for the National Judicial Registrar role in the Federal Court that Susan O'Connor applied for and came to fill;
b) the vacancy notice for the National Judicial Registrar role in the Federal Court that Phillip Allaway applied for and came to fill;
c) the vacancy notice for the National Judicial Registrar role in the Federal Court that Matthew Benter applied for and came to fill;
d) the vacancy notice for the National Judicial Registrar role in the Federal Court that Rupert Burns applied for and came to fill;
e) the vacancy notice for the National Judicial Registrar role in the Federal Court that Claire Gitsham applied for and came to fill;
f) the vacancy notice for the National Judicial Registrar role in the Federal Court that David Ryan applied for and came to fill; and
g) the vacancy notice for the National Judicial Registrar role in the Federal Court that Tuan Van Le applied for and was came to fill.

Please provide the documents that I requested in my FOI request. If the relevant vacancy notification do not exist (which would be problematic for many reasons), then you must refuse access under s 24A of the FOI Act.

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

Yours faithfully,

Allan

External FOI, Federal Court of Australia

OFFICIAL
Dear Allan

I acknowledge receipt of your request below for an internal review of the decision made by Registrar Hammerton Cole on behalf of the Federal Court of Australia and dated 30 May 2022.

Kind regards

FOI Officer
Federal Court of Australia

show quoted sections

External FOI, Federal Court of Australia

1 Attachment

OFFICIAL
Dear Allan

Please find attached correspondence from the Federal Court of Australia.

Kind regards,

FOI Officer
Federal Court of Australia

show quoted sections

Federal Court of Australia

 
 
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Federal Court of Australia

1 Attachment

Our reference: MR22/01143

 

By email: [FOI #8818 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 MR22/01143.

 

Yours sincerely

 

Freedom of Information Regulatory Group

Office of the Australian Information Commissioner

 

 

 

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Allan left an annotation ()

I made a request in exactly the same terms as part 1 of Aiofe's FOI request for vacancy notices:

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

Part 1 of Aiofe's FOI request was:

"Under the FOI Act I request access to the following documents:

1. Vacancy notifications published in the Public Service Gazette or elsewhere

a) the vacancy notification for the National Judicial Registrar role that Phillip Allaway applied for and was selected to fill;
b) the vacancy notification for the National Judicial Registrar role that Matthew Benter applied for and was selected to fill;
c) the vacancy notification for the National Judicial Registrar role that Rupert Burns applied for and was selected to fill;
d) the vacancy notification for the National Judicial Registrar role that Claire Gitsham applied for and was selected to fill;
e) the vacancy notification for the National Judicial Registrar role that Susan O'Connor applied for and was selected to fill;
f) the vacancy notification for the National Judicial Registrar role that David Ryan applied for and was selected to fill;
g) the vacancy notification for the National Judicial Registrar role that Tuan Van Le applied for and was selected to fill."

When Claire Hammerton Cole made her original decision, I sought review because the documents that she furnished were not documents that were covered by the terms of my FOI request. They are the same documents that she furnished to Aiofe and which Aiofe sought review for because they were not covered by the terms of her FOI request (https://www.righttoknow.org.au/request/m...). Claire Hammerton Cole said to AIofe:

"The table below lists those documents identified, in accordance with the relevant paragraphs
of your request.

Paragraph (1)

Gazette Notice – Senior National Judicial Registrar
Gazette Notice – National Judicial Registrar & District Registrar
Gazette Notice – Judicial Registrar
Gazette Notice – Deputy District Registrar ..."

On internal review of the FOI request that Aiofe made, Nicola Colbran, National Judicial Registrar & District Registrar, set aside Ms Hammerton Cole's decision (https://www.righttoknow.org.au/request/m...). Nicola Colbran said:

"Decision on Internal Review

Documents in item (1) of the FOI request

The decision dated 30 June 2022 identified four documents within the scope of your request. However, I am of the view that the documents identified are not within scope as they do not relate to both the role the person applied for and that they were selected to fill. I am satisfied that all reasonable steps have been taken to find the documents you have requested, but the documents cannot be found or do not exist (see s 24A(1) of the FOI Act). I therefore refuse your access request."

On internal review of my identically worded FOI request, Scott Tredwell, the General Counsel of the Federal Court, said:

"Decision on review

I am satisfied that the decision maker has provided you access to all documents within the scope of your FOI request.

Reasons for Decision

In relation to your FOI request, the searches conducted by the Court found four documents which are identified clearly within the FOI decision. I will not specifically identify each of those documents again here but will refer to them collectively as the recruitment documents.

As identified above, I am satisfied that the searches undertaken were thorough and comprehensive. I do not believe any further reasonable search or enquiry could find additional documents within the scope of your request.

In your review request, you assert, in respect of the FOI decision and the documents provided, that the decision maker has “not provided the documents that I requested in my FOI request”. THIS IS SIMPLY NOT CORRECT (my emphasis). Furthermore, it is not my role as an FOI internal reviewer to provide advice addressing the perceived discrepancies between the documents for which access was granted and those you believe you should have gained access to, or how the specific recruitment was undertaken."

Well, if my contentions are "simply not correct", why is it that Nicola Colbran has set aside Claire Hammerton Cole's decision in respect of the vacancy notices that she provided to Aiofe and stated that the documents do not exist?

How can the documents not exist (see Nicola Colbran's internal review decision) and exist, and be the very documents that Nicola Colbran said were not covered by the identically worded FOI request that Aiofe made for the vacancy notices? It's logically impossible. Either Scott Tredwell has stated the truth or Nicola Colbran has stated the truth, but both cannot have stated the truth.

OAIC - FOI DR,

5 Attachments

Our reference: MR22/01143

Agency reference: N/A

Mr Allan Lark
By email: [1][FOI #8818 email]

Dear Mr Lark

Thank you for your application for review. We have today informed the
Federal Court of Australia that the Information Commissioner will
undertake an IC review and requested information to assist with
progressing the review.

We will provide you with an update when we have heard from the Federal
Court of Australia.

 

 

Kind regards

 

Jennifer Zhou

 

[2][IMG]   Intake and Early Resolution Team

Freedom of Information Regulatory Group

Office of the Australian Information
Commissioner

GPO Box 5218 Sydney NSW 2001  |
 [3]oaic.gov.au

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[5][IMG] | [6][IMG] | [7][IMG] |   [8]Subscribe to OAICnet newsletter

 

 

 

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Dear Ms Zhou,

Thank you.

As you can see, there are logical inconsistencies between responses to identically worded requests
provided to Aiofe and to me by two decision makers in the Federal Court (Nicola Colbran, the National Judicial Registrar and District Registrar of South Australia, and Scott Tredwell, the General Counsel of the Federal Court). I hope to get some clarity on the matter, particularly because, for the reasons noted, Ms Hammerton Cole has not provided me with documents that fall within the scope of my FOI request.

Yours sincerely,

Allan

OAIC - FOI DR,

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Dear Ms Zhou,

I have come across a decision made by Claire Hammerton Cole of the Federal Court of Australia. The decision can be accessed here: https://www.righttoknow.org.au/request/d....

In that decision letter, Ms Hammerton Cole refuses to grant access to "the vacancy notification published in the Public Service Gazette for the National Judicial Registrar vacancy that David Ryan applied for and was selected to fill in the course of a merit based selection process" because the document does not exist.

The very same Claire Hammerton Cole insisted, in response to my request for "the vacancy notice for the National Judicial Registrar role in the Federal Court that David Ryan applied for and came to fill", that the Gazette Notice - Deputy District Registrar that is published on the Federal Court FOI disclosure log (PA2925-06/30 - www.fedcourt.gov.au/disclosurelog) was "the vacancy notice for the National Judicial Registrar role in the Federal Court that David Ryan applied for and came to fill." Clearly, I was lied to by Claire Hammerton Cole and Scott Tredwell's decision, on internal review, to uphold Claire Hammerton Cole's decision is just a sham.

I think it is appropriate for you to be aware of the "evolving" positions that decision makers in the Federal Court have taken in relation to the existence of documents. It is also appropriate for you to be aware that Claire Hammerton Cole is an untrustworthy decision maker.

Yours sincerely,

Allan

Dear Ms Zhou,

I have come across two internal review decisions made by Claire Hammerton Cole of the Federal Court of Australia. The decisions can be accessed here:

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

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

In those decision letters, Claire Hammerton Cole refuses to grant access to:

a) "the vacancy notification published in the Public Service Gazette for the National Judicial Registrar vacancy that Rupert Burns applied for and was selected to fill in the course of a merit based selection process"; and
b) "the vacancy notification published in the Public Service Gazette for the SES Band 1 National Judicial Registrar role that Susan O'Connor was selected to fill and applied for"

because the documents do not exist.

The very same Claire Hammerton Cole insisted, in response to my request for:

a) "the vacancy notice for the National Judicial Registrar role in the Federal Court that Rupert Burns applied for and came to fill"; and
b) "the vacancy notice for the National Judicial Registrar role in the Federal Court that Susan O’Connor applied for and came to fill",

that one or other of:

i) “Gazette Notice - Senior National Judicial Registrar”;
ii) “Gazette Notice – National Judicial Registrar & District Registrar”;
iii) “Gazette Notice – Judicial Registrar”; and
iv) “Gazette Notice – Deputy District Registrar”

was a relevant vacancy notification.

Clearly, (iv) isn’t because the Gazette Notice - Deputy District Registrar that is published on the Federal Court FOI disclosure log (PA2925-06/30 - www.fedcourt.gov.au/disclosurelog) is a vacancy notice for the Deputy District Registrar role in the Federal Court that David Ryan applied for and came to fill in 2015/2016 (for more information, see – https://www.righttoknow.org.au/request/d...).

That leaves three other notices.

Clearly, (i) isn’t the relevant notice because it is a notice for a totally different role classified at the SES Band 2 level.

For the reasons that I have already identified in my internal review request correspondence, (ii) and (iii) are not the relevant gazette notices for the National Judicial Registrar vacancies.

I was lied to by Claire Hammerton Cole and Scott Tredwell's decision, on internal review, to uphold Claire Hammerton Cole's decision is just a sham.

Yours sincerely,

Allan

OAIC - FOI DR,

1 Attachment

Dear Mr Lark

Thank you for your email and your comments below.

I note that the Federal Court has provided submissions in support of its decision in this matter.

I attach a copy of the submissions for your comment. If you have any further comments you wish to make in response to the submissions, I would appreciate if you could provide the comments by 31 October 2022. However, if you need further time, please do not hesitate to ask for an extension of time.

Kind regards
Carl English
Intake and Early Resolution Team
Freedom of Information Regulatory Group
Office of the Australian Information Commissioner
GPO Box 5288 Sydney NSW 2001  |  oaic.gov.au
1300 363 992  |  [email address]

show quoted sections

Dear Mr English,

Thank you for your email. I have set out my submissions, which include submissions in reply to Claire Hammerton Cole’s submissions, below.

SUBMISSIONS

1. These submissions are broken into 2 parts.

2. Part 1 addresses the documents that Claire Hammerton Cole claims fall within the scope of my FOI request. For the reasons that will be set out in Part 1, the documents that Claire Hammerton Cole claims fall within the scope of my FOI request do not, in fact, fall within the scope of my FOI request. I will submit that no reasonable person could hold the view that the document provided to me fall within the scope of my request.

3. I will also address inconsistencies in decisions made by Federal Court FOI decision makers, including Claire Hammerton Cole, in respect of the documents that Claire Hammerton Cole claims fall within the scope of my FOI request.

4. Part 2 addresses some of Claire Hammerton Cole’s submissions of 6 October 2022.

PART 1

GAZETTE NOTICE – DEPUTY DISTRICT REGISTRAR

5. Claire Hammerton Cole claims that “Gazette Notice – Deputy District Registrar” is a document relevant to my FOI request. For the reasons that follow, it will be demonstrated that it is not a document that falls within the scope of my FOI request.

6. “Gazette Notice – Deputy District Registrar” was published in Public Service Gazette PS 45 of 2015 on 19 November 2015.

7. “Gazette Notice – Deputy District Registrar” is a vacancy notification for an Executive Level 2 Deputy District Registrar vacancy based in Melbourne, Victoria.

8. The vacancy notification identifier for “Gazette Notice – Deputy District Registrar” is Vacancy NN 10656086.

9. On pages 196 and 197 of Public Service Gazette PS 07 of 2016, there is an engagement notice with an engagement notification identifier of NN 10665794. Public Service Gazette PS 07 of 2016 can be accessed on Trove – webarchive.nla.gov.au/tep/75984.

10. Engagement notification NN 10665794 identifies the person who was selected to fill Vacancy NN 10656086, the vacancy set out in “Gazette Notice – Deputy District Registrar”; the person selected to fill Vacancy NN 10656086, the vacancy set out in “Gazette Notice – Deputy District Registrar” is David Ryan. The date of David Ryan’s engagement as a Deputy District Registrar in the Victoria Registry of the Federal Court is listed as 8 February 2016 in engagement notification NN 10665794.

11. Clearly, “Gazette Notice – Deputy District Registrar” is the vacancy notification for the Deputy District Registrar role that David Ryan was selected to fill in 2016.

12. What follows is based on chronology that Ray B1 has helpfully prepared: https://www.righttoknow.org.au/request/d.... The Federal Court of Australia’s annual reports can be accessed on the Federal Court’s website: www.fedcourt.gov.au/digital-law-library/....

13. David Ryan is listed as a Deputy District Registrar based in the Victoria Registry in the 2015-2016 annual report of the Federal Court of Australia (see page 139 of the 2015-2016 annual report).

14. David Ryan is listed as a Deputy District Registrar based in the Victoria Registry in the 2016-2017 annual report of the Federal Court of Australia (see page 135 of the 2016-2017 annual report).

15. In the period between the publications of the 2016-2017 annual report and the 2017-2018 annual report, there appears to have been a change to Mr Ryan’s title. There was a change to the titles of Court’s deputy district registrars, regardless of the registries in which the deputy district registrars worked. They are held out to the public as “Judicial Registrars”.

16. David Ryan is, along with his colleague Rupert Burns, listed as a Judicial Registrar based in Melbourne in the 2017-2018 annual report of the Federal Court of Australia (see page 136 of the 2017-2018 annual report).

17. David Ryan is listed as a Judicial Registrar based in Melbourne in the 2018-2019 annual report of the Federal Court of Australia (see page 131 of the 2018-2019 annual report). His appointment to the office of deputy district registrar of the Federal Court is also noted on page 131.

18. In the period between the publications of the 2018-2019 annual report and the 2019-2020 annual report, Mr Ryan was elevated to the position of National Judicial Registrar. That is apparent because in the 2019-2020 annual report, David Ryan is listed as a National Judicial Registrar (page 126 of the 2019-2020 annual report). Despite his change in title, his appointment to the office of deputy district registrar of the Federal Court remains unaltered because his appointment to the office of deputy district registrar is noted on page 126 of the 2019-2020 annual report.

19. David Ryan is listed as a National Judicial Registrar based in Melbourne in the 2020-2021 annual report of the Federal Court of Australia (see page 127 of the 2020-2021 annual report). His appointment to the office of deputy district registrar of the Federal Court is also noted on page 127.

20. There is an apparent hierarchy of registrars in the Federal Court. A perusal of the Federal Court’s annual reports from the 2017-2018 financial year show that National Registrars are at the bottom of the hierarchy. National Registrars are outranked by Judicial Registrars, who are, in turn, outranked by National Judicial Registrars, who are, in turn, outranked by Senior National Judicial Registrars.

21. There also appears to be a progression in the classifications of these registrars. National Registrar roles bear EL1 classifications, Judicial Registrar roles bear EL2 classifications, and Senior National Judicial Registrar roles bear SES Band 2 classifications. Interestingly, the National Judicial Registrar roles appear to be broadbanded across the Executive Level 2 and SES Band 1 classifications. This observation is based solely on position descriptions published on the Federal Court’s disclosure log (see PA2925-06/40 – www.fedcourt.gov.au/disclosurelog) because classification evaluation documents have been refused access to on multiple occasions by FOI decision makers on the ground that they do not exist / cannot be found.

22. According to the position descriptions for the Executive Level 2 classified National Judicial Registrar role and the SES Band 1 classified National Judicial Registrar role, National Judicial Registrars, among others things, are required to perform “a leadership role for Judicial Registrars and legal support staff at a local and national level.” This fact more than suggests that that National Judicial Registrars constitute a class of registrars that is distinct to Judicial Registrars and supports the view that National Judicial Registrars outrank Judicial Registrars.

23. In fact, the Judicial Registrar role (PA2925-06/40), which is classified at the Executive Level 2 classification, is separate, and distinct in its requirements, to the National Judicial Registrar role (regardless of the classifications of the National Judicial Registrar role). There is a focus on the more complex nature of the legal work that National Judicial Registrars handle when those duties are compared to the duties that Judicial Registrars handle.

24. The following implications flow from the facts recorded in paragraphs [5] – [23].

25. The “Gazette Notice – Deputy District Registrar” is the vacancy notice for the role that David Ryan first filled in 2016.

26. The Deputy District Registrars of the Federal Court were re-styled “Judicial Registrars” at some point between the publications of the 2016-2017 annual report and the 2017-2018 annual report. David Ryan was a “Judicial Registrar” in the 2017-2018 and 2018-2019 financial years.

27. David Ryan was elevated to the position of National Judicial Registrar sometime in the 2019-2020 financial year.

28. A Judicial Registrar is not a National Judicial Registrar. The latter is a more senior officer, whose work is more complex than the work of a Judicial Registrar and who provides leadership and guidance to the Federal Court’s Judicial Registrars.

29. Aside from the obvious fact that the “Gazette Notice – Deputy District Registrar” is not a vacancy notification for a National Judicial Registrar role in the Federal Court, the “Gazette Notice – Deputy District Registrar” could not be “the vacancy notification for the National Judicial Registrar role in the Federal Court that David Ryan applied for and came to fill” because a selection process for a decision to fill a vacancy meets the terms of Part 3, Division 1, Subdivision B of the Australian Public Service Commissioner’s Directions 2016 (Cth) (Merit based selection processes), and paragraph 10A(1)(c) of the Public Service Act 1999 (Cth) in general, only if the vacancy, or a similar vacancy was notified in the Public Service Gazette within a period of 12 months before the written decision to engage or promote the successful candidate: Australian Public Service Commissioner’s Directions 2016, s 20(1)(c).

30. Plainly, the “Gazette Notice – Deputy District Registrar” was published more than 3.5 years prior to the start of the 2019-2020 financial year, in which financial year David Ryan was elevated to the National Judicial Registrar role; that is a matter of simple arithmetic. If Claire Hammerton Cole is suggesting that a vacancy notification published in November 2015 in the Public Service Gazette is the relevant National Judicial Registrar vacancy notification for the National Judicial Registrar role in the Federal Court that David Ryan applied for and came to fill sometime in the 2019-2020 financial year then Claire Hammerton Cole is readily admitting to a contravention of merit based selection principles in laws of the Commonwealth.

31. I take it that Claire Hammerton Cole is not suggesting that “Gazette Notice – Deputy District Registrar” relates to any other of the named registrars in my FOI request but so as to avoid any doubt that “Gazette Notice – Deputy District Registrar” relates to anybody other than David Ryan:

a) on pages 196 and 197 of Public Service Gazette PS 07 of 2016, there is an engagement notice with an engagement notification identifier of NN 10665794 identifying David Ryan as the person who was selected to fill the vacancy notified in “Gazette Notice – Deputy District Registrar”;
b) in Public Service Gazette 48 of 2007 (published on 6 December 2007), there is an engagement notice with an engagement notification identifier of NN 10374069 identifying Rupert Burns as the person who was selected to fill Vacancy NN 10343075, the vacancy notified for the Executive Level 2 Deputy District Registrar role in the Victoria Registry of the Federal Court in Public Service Gazette PS 24 of 2007;
c) in Public Service Gazette 42 of 2007 (published on 25 October 2007), there is an engagement notice with an engagement notification identifier of NN 10367926 identifying Phillip Allaway as the person who was selected to fill Vacancy NN 10343075, the vacancy notified for the Executive Level 2 Deputy District Registrar role in the Victoria Registry of the Federal Court in Public Service Gazette PS 24 of 2007;
d) the first mention of Matthew Benter as a National Judicial Registrar (or any kind of registrar) in any annual report of the Federal Court is to be found on page 130 of the 2018-2019 annual report of the Federal Court, which means that “Gazette Notice – Deputy District Registrar” would have been published at least 32 months prior to Matthew Benter being first mentioned as a National Judicial Registrar of the Federal Court;
e) the first mention of Matthew Benter as a National Judicial Registrar (or any kind of registrar) in any annual report of the Federal Court is to be found on page 130 of the 2018-2019 annual report of the Federal Court, which would make it highly improbable that a written decision to engage Matthew Benter was made within 12 months of the publication of “Gazette Notice – Deputy District Registrar”;
g) the first mention of Claire Gitsham as a National Judicial Registrar (or any kind of registrar) in any annual report of the Federal Court is to be found on page 130 of the 2018-2019 annual report of the Federal Court, which means that “Gazette Notice – Deputy District Registrar” would have been published at least 32 months prior to Claire Gitsham being first mentioned as a National Judicial Registrar of the Federal Court;
h) the first mention of Claire Gitsham as a National Judicial Registrar (or any kind of registrar) in any annual report of the Federal Court is to be found on page 130 of the 2018-2019 annual report of the Federal Court, which would make it highly improbable that a written decision to engage Claire Gitsham was made within 12 months of the publication of “Gazette Notice – Deputy District Registrar”;
i) the first mention of Tuan Van Le as a National Judicial Registrar in any annual report of the Federal Court of Australia is to be found on page 126 of the 2019-2020 annual report of the Federal Court of Australia, which means that “Gazette Notice – Deputy District Registrar” would have been published at least 42 months prior to Tuan Van Le being first mentioned as a National Judicial Registrar of the Federal Court;
j) the first mention of Tuan Van Le as any kind of registrar in any annual report of the Federal Court of Australia is to be found on page 131 of the 2018-2019 annual report of the Federal Court of Australia (Tuan Van Le is listed as a “Judicial Registrar” and not as a “National Judicial Registrar”), which means that “Gazette Notice – Deputy District Registrar” would have been published at least 32 months prior to Tuan Van Le being first mentioned as a “Judicial Registrar” of the Federal Court, which, plainly is not a “National Judicial Registrar” of the Federal Court of Australia;
k) the first mention of Tuan Van Le as any kind of registrar in any annual report of the Federal Court is to be found on page 131 of the 2018-2019 annual report of the Federal Court (Tuan Van Le is listed as a “Judicial Registrar” and not as a “National Judicial Registrar”), which would make it highly improbable that a written decision to engage Tuan Van Le was made within 12 months of the publication of “Gazette Notice – Deputy District Registrar”;
j) the first mention of Susan O’Connor as a National Judicial Registrar (or any kind of registrar) in any annual report of the Federal Court is to be found on page 130 of the 2018-2019 annual report of the Federal Court, which means that “Gazette Notice – Deputy District Registrar” would have been published at least 32 months prior to Susan O’Connor being first mentioned as a National Judicial Registrar of the Federal Court;
k) the first mention of Susan O’Connor as a National Judicial Registrar (or any kind of registrar) in any annual report of the Federal Court is to be found on page 130 of the 2018-2019 annual report of the Federal Court, which would make it highly improbable that a written decision to engage Susan O’Connor was made within 12 months of the publication of “Gazette Notice – Deputy District Registrar”; and
l) the first mention of Susan O’Connor as a National Judicial Registrar (or any kind of registrar) in any annual report of the Federal Court is to be found on page 130 of the 2018-2019 annual report of the Federal Court, which is not unsurprising because there is a document associated with PA2925-06/9 on the Federal Court of Australia’s FOI disclosure log that provides that Susan O’Connor was recruited from outside the Australian Public Service to fill an ongoing, full time Senior Executive Band 1 classified National Judicial Registrar vacancy, and commenced in that role on 19 November 2018 (see page 4 of the document titled “Request 2”).

32. It follows that “Gazette Notice – Deputy District Registrar” is not the vacancy notification for the National Judicial Registrar role in the Federal Court that any one of Phillip Allaway, Matthew Benter, Rupert Burns, Claire Gitsham, Susan O’Connor, David Ryan or Tuan Van Le applied for and came to fill.

GAZETTE NOTICE – NATIONAL JUDICIAL REGISTRAR & DISTRICT REGISTRAR

33. Claire Hammerton Cole claims that “Gazette Notice – National Judicial Registrar & District Registrar” is a document relevant to my FOI request. For the reasons that follow, it will be demonstrated that it is not a document that falls within the scope of my FOI request.

34 “Gazette Notice – National Judicial Registrar & District Registrar” was published in Public Service Gazette PS 19 of 2018 on 7 May 2018.

35. “Gazette Notice – National Judicial Registrar & District Registrar” is a vacancy notification for three Senior Executive Band 1 classification National Judicial Registrar & District Registrar vacancies.

36. The vacancy notification identifier for “Gazette Notice – National Judicial Registrar & District Registrar” is Vacancy NN 10725159.

37. According to “Gazette Notice – National Judicial Registrar & District Registrar”, the three vacancies are based in Melbourne, Brisbane and Perth.

38. According to “Gazette Notice – National Judicial Registrar & District Registrar”, “[i]n the respective registry, the [National Judicial Registrar & District Registrar] will undertake statutory responsibilities and functions, in particular the leadership role, of the “District Registrar” pursuant to the Federal Court of Australia Act 1976 (Cth).”

39. Subsection 34(3) of the Federal Court of Australia Act 1976 (Cth) provides that the Chief Executive Officer of the Federal Court of Australia “must ensure that at least one registry in each State is staffed appropriately to discharge the functions of a District Registry, with the staff to include a District Registrar in that State.”

40. It follows that there must be a District Registrar resident in each State of the Commonwealth.

The National Judicial Registrar & District Registrar vacancy in Victoria

41. On page 306 of Public Service Gazette PS 43 of 2018, which was published on 25 October 2018, there is a promotion notice with a promotion notification identifier of NN 10736921. Public Service Gazette PS 07 of 2016 can be accessed on Trove – webarchive.nla.gov.au/tep/75984.

42. Promotion notification NN 10736921 identifies the person who was selected to fill Vacancy NN 10725159 (the vacancy set out in “Gazette Notice – National Judicial Registrar & District Registrar”) in Melbourne, Victoria; the person selected to fill Vacancy NN 10725159 in Melbourne, Victoria, is Tim Luxton.

43. Promotion notification NN 10736921, which was published on 25 October 2018, notes that Tim Luxton was promoted from an Executive Level 2 “Deputy District Registrar” role in the Federal Court of Australia to a “Senior Executive Service Band 1” “National Judicial Registrar & District Registrar” role.

44. Tim Luxton’s promotion to the role of “National Judicial Registrar & District Registrar” in Victoria is confirmed by the entry, on page 129 of the 2018-2019 annual report of the Federal Court of Australia, under National Judicial Registrars and District Registrar, which lists Tim Luxton as the “National Judicial Registrar & District Registrar” based in Victoria and identifies his appointment as the “District Registrar (VIC District Registry), Federal Court of Australia.”

The National Judicial Registrar & District Registrar vacancy in Western Australian

45. On 12 March 2022, an access applicant applied to the Federal Court, under the Freedom of Information Act 1982 (Cth), for documents relating to the recruitment of National Judicial Registrar & District Registrar in Western Australia. The access applicant’s request can be accessed on Right to Know at:

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

46. The access applicant, Remy, requested the following documents under the Freedom of Information Act 1982 (Cth):

“a) the vacancy notification, published in the Public Service Gazette or elsewhere, for the National Judicial Registrar & District Registrar vacancy that Mr Trott applied to fill;
b) the selection report produced by the person or persons who undertook the selection process that culminated in Mr Trott being engaged in or promoted to the position of National Judicial Registrar & District Registrar in the Western Australia Registry of the Court; and
c) all classification assessments for the National Judicial Registrar & District Registrar position in the Western Australia Registry of the Court from 1 January 2016 to the date of this request; and
d) any and all promotion notices published in the Public Service Gazette in relation to Mr Trott; and
e) any and all certifications issued by the representative of the Australian Public Service Commissioner for the selection process that culminated in Mr Trott being engaged in or promoted to the position of National Judicial Registrar & District Registrar in the Western Australia Registry of the Court.”

47. On 25 March 2022, Claire Hammerton Cole, the person who has provided you with the Federal Court’s submissions for my FOI request, wrote to Remy noting that the documents that Remy had sought had the personal information of certain individuals on them, and that the individuals in question might reasonably wish to contend that the documents were conditionally exempt. Accordingly, Claire Hammerton Cole determined that “the requirements of section 27A of the FOI Act make it appropriate to extend the period for processing your request by a further period of 30 days in accordance with subsection 15(6) of the FOI Act.”

48. On 11 May 2022, Claire Hammerton Cole provided Remy with an FOI decision, which can be accessed on Right to Know at:

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

49. In the FOI decision that Claire Hammerton Cole provided to Remy on 11 May 2022, Claire Hammerton Cole noted:

a) the vacancy notification, published in the Public Service Gazette or elsewhere, for the National Judicial Registrar & District Registrar vacancy that Mr Trott applied to fill is the “Gazette Notice – National Judicial Registrar & District Registrar”;
b) the selection report produced by the person or persons who undertook the selection process that culminated in Mr Trott being engaged in or promoted to the position of National Judicial Registrar & District Registrar in the Western Australia Registry of the Court would be refused access to on public interest grounds;
c) no classification assessments for the National Judicial Registrar & District Registrar position in the Western Australia Registry of the Court from 1 January 2016 to the date of the request, 11 March 2022, existed / could be found and, as such, access to the requested classification assessment documents was refused;
d) no promotion notices had been published in the Public Service Gazette in relation to Mr Trott’s promotion to the position of National Judicial Registrar & District Registrar in the Western Australia District Registry of the Federal Court of Australia; and
e) the certification issued by the representative of the Australian Public Service Commissioner for the selection process that culminated in Mr Trott being engaged in or promoted to the position of National Judicial Registrar & District Registrar in the Western Australia Registry of the Court was to provided to the access applicant.

50. As noted, the vacancy notification, published in the Public Service Gazette or elsewhere, for the National Judicial Registrar & District Registrar vacancy that Mr Trott applied to fill is the “Gazette Notice – National Judicial Registrar & District Registrar”, which bears a vacancy identifier of Vacancy NN 10725159.

51. The certification issued by the representative of the Australian Public Service Commissioner for the selection process that culminated in Mr Trott being engaged in or promoted to the position of National Judicial Registrar & District Registrar in the Western Australia Registry of the Court can be accessed on the Federal Court of Australia’s freedom of information disclosure log. The certification, issued by Ms Kerryn Vine-Camp, is the third document associated with disclosure PA2925-06/23 on the disclosure log. The disclosure log can be accessed at:

www.fedcourt.gov.au/disclosurelog.

52. According to the certification issued by Kerryn Vine-Camp for the Senior Executive Band 1 classified “National Judicial Registrar & District Registrar, WA” vacancy:

a) “Kerryn Vine-Camp participated as the Australian Public Service Commissioner's representative in all stages of the selection exercise to fill the role of National Judicial Registrar & District Registrar, WA in the Federal Court of Australia”; and
b) “Pursuant to Section 21 of the Australian Public Service Commissioner’s Directions 2016 (Cth) (the Directions), [Kerryn Vine-Camp certified] that the selection process complied with subsection 10A(2) of the Public Service Act 1999 and the requirements of the Directions.”

53. Remy sought internal review of Claire Hammerton Cole’s decision to refuse access to the selection report produced by the person or persons who undertook the selection process that culminated in Mr Trott being engaged in or promoted to the position of National Judicial Registrar & District Registrar in the Western Australia Registry of the Court on 15 May 2022. Remy’s internal review request can be accessed on Right to Know, here:

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

54. On 14 June 2022, Nicola Colbran, National Judicial Registrar & District Registrar of the South Australia District Registry of the Federal Court of Australia, provided Remy with an internal review decision, which can be accessed on Right to Know at:

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

55. In her decision letter of 14 June 2022, Nicola Colbran varied Claire Hammerton Cole’s FOI decision to refuse access to the selection report produced by the person or persons who undertook the selection process that culminated in Mr Trott being engaged in or promoted to the position of National Judicial Registrar & District Registrar in the Western Australia Registry of the Court. Nicola Colbran granted access to a redacted version of the selection report produced by the person or persons who undertook the selection process that culminated in Mr Trott being engaged in or promoted to the position of National Judicial Registrar & District Registrar in the Western Australia Registry of the Court. The selection report produced by the person or persons who undertook the selection process that culminated in Mr Trott being engaged in or promoted to the position of National Judicial Registrar & District Registrar in the Western Australia Registry of the Court can be accessed on the Federal Court of Australia’s freedom of information disclosure log, and is associated with disclosure PA2925-06/47.

56. According to the selection report produced by the person or persons who undertook the selection process that culminated in Mr Trott being engaged in or promoted to the position of National Judicial Registrar & District Registrar in the Western Australia Registry of the Court:

a) the “National Judicial Registrar & District Registrar, WA” vacancy bore an “SES Band 1” classification;
b) the selection panel was constituted by three people;
c) the selection panel was constituted by “Sia Lagos, National Operations Registrar & Principal Judicial Registrar”, “David Pringle, Deputy National Operations Registrar & Principal Judicial Registrar”, and “Andrea Jarratt, Director National Operations”;
d) the selection panel selected Russell Trott as the “Recommended Candidate” for the “National Judicial Registrar & District Registrar, WA” vacancy;
e) Sia Lagos, as the Agency Head’s delegate, endorsed the recommendation of the selection panel to select Russell Trott.

57. Russell Trott’s promotion to the role of “National Judicial Registrar & District Registrar” in Western Australia is confirmed by the entry, on page 129 of the 2018-2019 annual report of the Federal Court of Australia, under National Judicial Registrars and District Registrar, which lists Russell Trott as the “National Judicial Registrar & District Registrar” based in Western Australia and identifies his appointment as the “District Registrar (WA District Registry), Federal Court of Australia.”

The National Judicial Registrar & District Registrar vacancy in Queensland

58. On 2 March 2022, an access applicant applied to the Federal Court, under the Freedom of Information Act 1982 (Cth), for documents relating to the recruitment of National Judicial Registrar & District Registrar in Queensland. The access applicant’s request can be accessed on Right to Know at:

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

59. The access applicant, Remy, requested, among other things, the following documents under the Freedom of Information Act 1982 (Cth):

a) the vacancy notification, published in the Public Service Gazette or elsewhere, for the National Judicial Registrar & District Registrar vacancy that Mr Murray Belcher applied to fill;
b) the selection report produced by the person or persons who undertook the selection process that culminated in Mr Murray Belcher being engaged in or promoted to the position of National Judicial Registrar & District Registrar in the Queensland Registry of the Court;
c) all classification assessments for the National Judicial Registrar & District Registrar position in the Queensland Registry of the Court from 1 January 2018 to 2 March 2022; and
d) any and all certifications issued by the representative of the Australian Public Service Commissioner for the selection process that culminated in Mr Murray Belcher being engaged in or promoted to the position of National Judicial Registrar & District Registrar in the Queensland Registry of the Court.

60. On 4 March 2022, Claire Hammerton Cole, the person who has provided you with the Federal Court’s submissions for my FOI request, wrote to Remy noting that the documents that Remy had sought had the personal information of certain individuals on them, and that the individuals in question might reasonably wish to contend that the documents were conditionally exempt. Accordingly, Claire Hammerton Cole determined that “the requirements of section 27A of the FOI Act make it appropriate to extend the period for processing your request by a further period of 30 days in accordance with subsection 15(6) of the FOI Act.”

61. On 2 May 2022, Claire Hammerton Cole provided Remy with an FOI decision, which can be accessed on Right to Know at:

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

62. In the FOI decision that Claire Hammerton Cole provided to Remy on 2 May 2022, Claire Hammerton Cole noted:

a) the vacancy notification, published in the Public Service Gazette or elsewhere, for the National Judicial Registrar & District Registrar vacancy that Mr Murray Belcher applied to fill is the “Gazette Notice – National Judicial Registrar & District Registrar”, with vacancy identifier Vacancy NN 10725159;
b) the selection report produced by the person or persons who undertook the selection process that culminated in Murray Belcher being engaged in or promoted to the position of National Judicial Registrar & District Registrar in the Queensland District Registry of the Court would be refused access to on public interest grounds;
c) no classification assessments for the National Judicial Registrar & District Registrar position in the Queensland District Registry of the Court from 1 January 2016 to the date of the request, 2 March 2022, existed / could be found and, as such, access to the requested classification assessment documents was refused;
d) the certification issued by the representative of the Australian Public Service Commissioner for the selection process that culminated in Murray Belcher being engaged in or promoted to the position of National Judicial Registrar & District Registrar in the Queensland Registry of the Court was to provided to the access applicant.

63. As noted, the vacancy notification, published in the Public Service Gazette or elsewhere, for the National Judicial Registrar & District Registrar vacancy that Murray Belcher applied to fill is the “Gazette Notice – National Judicial Registrar & District Registrar”, which bears a vacancy identifier of Vacancy NN 10725159.

64. The certification issued by the representative of the Australian Public Service Commissioner for the selection process that culminated in Murray Belcher being engaged in or promoted to the position of National Judicial Registrar & District Registrar in the Queensland Distrct Registry of the Court can be accessed on the Federal Court of Australia’s freedom of information disclosure log. The certification, issued by Ms Kerryn Vine-Camp, is the second document associated with disclosure PA2925-06/23 on the disclosure log. The disclosure log can be accessed at:

www.fedcourt.gov.au/disclosurelog.

65. According to the certification issued by Kerryn Vine-Camp for the Senior Executive Band 1 classified “National Judicial Registrar & District Registrar, QLD” vacancy:

a) “Kerryn Vine-Camp participated as the Australian Public Service Commissioner's representative in all stages of the selection exercise to fill the role of National Judicial Registrar & District Registrar, QLD in the Federal Court of Australia”; and
b) “Pursuant to Section 21 of the Australian Public Service Commissioner’s Directions 2016 (Cth) (the Directions), [Kerryn Vine-Camp certified] that the selection process complied with subsection 10A(2) of the Public Service Act 1999 and the requirements of the Directions.”

66. Remy sought internal review of Claire Hammerton Cole’s decision to refuse access to the selection report produced by the person or persons who undertook the selection process that culminated in Murray Belcher being engaged in or promoted to the position of National Judicial Registrar & District Registrar in the Queensland Registry of the Court on 4 May 2022. Remy’s internal review request can be accessed on Right to Know, here:

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

67. Remy also drew attention to the fact that the selection report produced by the person or persons who undertook the selection process that culminated in Murray Belcher being engaged in or promoted to the position of National Judicial Registrar & District Registrar in the Queensland Registry of the Court has been produced by an official in the Australian Public Service Commission on the Right to Know website and that the decision to refuse to grant access to a document that had been publicised, in part, was without merit. Remy’s comments can be access on Right to Know, here:

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

68. On 3 June 2022, Nicola Colbran, National Judicial Registrar & District Registrar of the South Australia District Registry of the Federal Court of Australia, provided Remy with an internal review decision, which can be accessed on Right to Know at:

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

69. In her decision letter of 3 June 2022, Nicola Colbran varied Claire Hammerton Cole’s FOI decision to refuse access to the selection report produced by the person or persons who undertook the selection process that culminated in Murray Belcher being engaged in or promoted to the position of National Judicial Registrar & District Registrar in the Queensland Registry of the Court. Nicola Colbran granted access to a redacted version of the selection report produced by the person or persons who undertook the selection process that culminated in Murray Belcher being engaged in or promoted to the position of National Judicial Registrar & District Registrar in the Queensland Registry of the Court. The selection report produced by the person or persons who undertook the selection process that culminated in Mr Belcher being engaged in or promoted to the position of National Judicial Registrar & District Registrar in the Queensland Registry of the Court can be accessed on the Federal Court of Australia’s freedom of information disclosure log, and is associated with disclosure PA2925-06/48 (with the title “Selection Report – NJR DR Qld”).

70. According to the selection report produced by the person or persons who undertook the selection process that culminated in Murray Belcher being engaged in or promoted to the position of National Judicial Registrar & District Registrar in the Queensland Registry of the Court:

a) the “National Judicial Registrar & District Registrar, QLD” vacancy bore an “SES Band 1” classification;
b) the selection panel was constituted by three people;
c) the selection panel was constituted by “Sia Lagos, National Operations Registrar & Principal Judicial Registrar”, “David Pringle, Deputy National Operations Registrar & Principal Judicial Registrar”, and “Andrea Jarratt, Director National Operations”;
d) Sia Lagos, as the Agency Head’s delegate, endorsed the recommendation of the selection panel.

71. Murray Belcher’s promotion to the role of “National Judicial Registrar & District Registrar” in Queensland is confirmed by the entry, on page 129 of the 2018-2019 annual report of the Federal Court of Australia, under National Judicial Registrars and District Registrar, which lists Murray Belcher as the “National Judicial Registrar & District Registrar” based in Queensland and identifies his appointment as the “District Registrar (WA District Registry), Federal Court of Australia.”

Conclusion

72. Claire Hammerton Cole claims that “Gazette Notice – National Judicial Registrar & District Registrar” is a document relevant to my FOI request, but it is not because “Gazette Notice – National Judicial Registrar & District Registrar” is, for the reasons set out in paragraphs [33] – [71], the vacancy notification for the vacancies that Tim Luxton, Russell Trott and Murray Belcher filled.

73. In case Claire Hammerton Cole had not noticed, not one of:

a) Phillip Allaway;
b) Matthew Benter;
c) Rupert Burns;
d) Claire Gitsham;
e) Susan O’Connor;
f) David Ryan; or
g) Tuan Van Le

is Tim Luxton, Russell Trott or Murray Belcher.

74. Moreover, as was noted in “Gazette Notice – National Judicial Registrar & District Registrar”, “[i]n the respective registry, the [National Judicial Registrar & District Registrar] will undertake statutory responsibilities and functions, in particular the leadership role, of the “District Registrar” pursuant to the Federal Court of Australia Act 1976 (Cth).”

75. Phillip Allaway, Rupert Burns and David Ryan were appointed to the office of “Deputy District Registrar” according to the annual reports of the Federal Court of Australia, and Matthew Benter, Claire Gitsham, Susan O’Connor and Tuan Van Le were appointed to the office of “Registrar” according to the annual reports of the Federal Court of Australia. If “Gazette Notice – National Judicial Registrar & District Registrar” was the vacancy notice for the National Judicial Registrar role in the Federal Court that each of:

a) Phillip Allaway;
b) Matthew Benter;
c) Rupert Burns;
d) Claire Gitsham;
e) Susan O’Connor;
f) David Ryan; or
g) Tuan Van Le

applied for and came to fill, then one would expect that one or other of:

a) Phillip Allaway;
b) Matthew Benter;
c) Rupert Burns;
d) Claire Gitsham;
e) Susan O’Connor;
f) David Ryan; or
g) Tuan Van Le

would have been appointed to the office of “District Registrar”. According to the annual reports of the Federal Court of Australia, not one of:

a) Phillip Allaway;
b) Matthew Benter;
c) Rupert Burns;
d) Claire Gitsham;
e) Susan O’Connor;
f) David Ryan; or
g) Tuan Van Le

has ever been appointed to the office of “District Registrar” (as to the three offices, other than the office of Chief Executive Officer and Principal Registrar, to which registrars of the Court may be appointed, please refer to paragraphs 18(1)(aa), 18(1)(a) and 18(1)(b) of the Federal Court of Australia Act 1976 (Cth)). Unlike:

a) Phillip Allaway;
b) Matthew Benter;
c) Rupert Burns;
d) Claire Gitsham;
e) Susan O’Connor;
f) David Ryan; or
g) Tuan Van Le,

each of Tim Luxton, Russell Trott and Murray Belcher were appointed to the office of “District Registrar” (see, for example, page 129 of the 2018 – 2019 annual report of the Federal Court of Australia – https://fedcourt.gov.au/digital-law-libr...).

76. The submissions in paragraphs [74] and [75] further support the conclusion that the “Gazette Notice – National Judicial Registrar & District Registrar” is not the vacancy notice for the National Judicial Registrar role in the Federal Court that each of:

a) Phillip Allaway;
b) Matthew Benter;
c) Rupert Burns;
d) Claire Gitsham;
e) Susan O’Connor;
f) David Ryan; or
g) Tuan Van Le

applied for and came to fill.

GAZETTE NOTICE – SENIOR NATIONAL JUDICIAL REGISTRAR

77. Claire Hammerton Cole claims that “Gazette Notice – Senior National Judicial Registrar” is a document relevant to my FOI request. For the reasons that follow, it will be demonstrated that it is not a document that falls within the scope of my FOI request.

78 “Gazette Notice – Senior National Judicial Registrar” was published in Public Service Gazette PS 19 of 2018 on 7 May 2018.

79. The vacancy notification identifier for “Gazette Notice – Senior National Judicial Registrar” is Vacancy NN 10725156.

80. According to “Gazette Notice – Senior National Judicial Registrar”, the Senior National Judicial Registrar vacancy is a Senior Executive Band 2 classified vacancy.

81. According to position description documents associated with PA2925-06/40 on the Federal Court of Australia’s disclosure log (www.fedcourt.gov.au/disclosurelog), the “National Judicial Registrar” roles in the Federal Court of Australia are classified at the Executive Level 2 and Senior Executive Band 1 classifications.

82. According to position description documents associated with PA2925-06/40 on the Federal Court of Australia’s disclosure log (www.fedcourt.gov.au/disclosurelog), the “Senior National Judicial Registrar” role in the Federal Court of Australia is classified at the Senior Executive Band 2 classification.

83. According to the 2018 – 2019, 2019 – 2020 and 2020 – 2021 annual reports of the Federal Court of Australia, not one of:

a) Phillip Allaway;
b) Matthew Benter;
c) Rupert Burns;
d) Claire Gitsham;
e) Susan O’Connor;
f) David Ryan; or
g) Tuan Van Le

is a Senior National Judicial Registrar.

84. According to the annual reports of the Federal Court of Australia, the Senior National Judicial Registrars of the Federal Court of Australia are:

a) Rowan Davis;
b) Paul Farrell;
c) Alison Legge; and
d) Jenni Priestley.

85. “Request 2”, which is associated with PA2925-06/9 on the Federal Court of Australia’s disclosure log (www.fedcourt.gov.au/disclosurelog), is a document that contains:

“lists of information about SES employees who constituded the Federal Court statutory agency (for the purposes of the Public Service Act 1999) in the 2018-2019 financial year.

Category A lists the details of SES employees of the Federal Court statutory agency from 1 July 2018 – 30 June 2019.

Category B lists the details of any SES employees who transferred into the Federal Court statutory agency in the 2018-2019 financial year and were, at the time of transfer, SES employees.

Category C lists the details of any SES employees who were promoted to the SES, with the SES position being part of the Federal Court statutory agency in the 2018-2019 financial year.

Category D lists the details of any SES employees who were recruited to work as part of the Federal Court statutory agency in the 2018-2019 financial year in an SES position.”

86. According to “Request 2”, the only Senior National Judicial Registrar in the Federal Court statutory agency was Paul Farrell. According to “Request 2”, Paul Farrell was recruited to work as part of the Federal Court statutory agency in the 2018-2019 financial year in a full time, ongoing Senior Executive Band 2 classified Senior National Judicial Registrar vacancy, with effect from 30 January 2019.

87. “Request 3”, which is associated with PA2925-06/9 on the Federal Court of Australia’s disclosure log (www.fedcourt.gov.au/disclosurelog), is a document that contains:

“lists of information about SES employees who constituded the Federal Court statutory agency in the 2019-2020 financial year (between 1 July 2019 and 12 June 2020).

Category A lists the details of SES employees who constituted the Federal Court statutory agency from 1 July 2019 to 12 June 2020.

Category B lists the details of any SES employees who transferred into the Federal Court statutory agency between 1 July 2019 and 12 June 2020 year and were, at the time of transfer, SES employees.

Category C lists the details of any SES employees who were promoted to the SES, with the SES position being part of the Federal Court statutory agency between 1 July 2019 and 12 June 2020.

Category D lists the details of any SES employees who were recruited to work as part of the Federal Court statutory agency in an SES position between 1 July 2019 and 12 June 2020.”

88. According to “Request 3”, Paul Farrell is listed as a full time, ongoing Senior Executive Band 2 classified Senior National Judicial Registrar.

89. According to “Request 3”, Rowan Davis transferred into the Federal Court statutory agency on 14 October 2019 from Australian Securities and Investments Commission. Rowan Davis transferred into the Federal Court statutory agency to fill a Senior Executive Band 2 classified, full time, ongoing Senior National Judicial Registrar vacancy.

90. According to “Request 3”, Jennifer Priestley was recruited to work as part of the Federal Court statutory agency in an SES position between 1 July 2019 and 12 June 2020. Jennifer Priestley was recruited to work in the Federal Court statutory agency to fill a Senior Executive Band 2 classified, full time, ongoing Senior National Judicial Registrar vacancy.

91. PA2925-06/13 on the Federal Court of Australia’s disclosure log (www.fedcourt.gov.au/disclosurelog) sets out, among other things, redacted reports of selection committees assembles to consider applications for Senior Executive Service classified vacancies in the Federal Court statutory agency.

92. There are twelve documents that set out record of, or a formal statement of reasons for, a final decision given in exercise of a power to:

a) recruit each ongoing and non-ongoing SES employee from outside the Australian Public Service (APS) from 1 July 2016 to 14 June 2020 into the Federal Court statutory agency;
b) promote each ongoing and non-ongoing APS employee (including an SES employee) from within the APS to an SES position in the Federal Court statutory agency from 1 July 2016 to 14 June 2020; and
c) transfer each ongoing and non-ongoing SES employee from another public service agency to the Federal Court statutory agency from 1 July 2016 to 14 June 2020.

93. The documents titled “Document 5: SAC Report – Senior National Judicial Registrar”, “Document 8: SAC Report – Senior National Judicial Registrar”, and “Document 11: SAC Report – Senior National Judicial Registrar – Federal Criminal Jurisdiction (and accompanying email)”, set out the reports of the selection committees assembled to consider the applications of Jenni Priestley, Paul Farrell and Rowan Davis, respectively, for Senior Executive Band 2 classified Senior National Judicial Registrar vacancies.

94. “Document 5: SAC Report – Senior National Judicial Registrar” is the report of the selection committee that was assembled to consider the applications of applicants who wished to fill a Senior Executive Band 2 classified Senior National Judicial Registrar vacancy in the Federal Court. According to “Document 5: SAC Report – Senior National Judicial Registrar”, the “Gazette Notice Number” for the Senior Executive Band 2 classified Senior National Judicial Registrar vacancy in the Federal Court was “10751036”, and the vacancy “appeared in the Gazette from: 24/05/2019 to 7/06/2019”.

95. The selection committee’s recommendation, such selection committee being constituted by Sia Lagos (convenor), Warwick Soden (member), Paul Farrell (member), and Penny Shakespeare (Australian Public Service Commissioner’s representative), is set out in “Document 5: SAC Report – Senior National Judicial Registrar”. The recommendation provides:

“It is recommended that Jenni Priestley be engaged as an Australian Public Service employee on an ongoing basis. The recommended applicant is to be offered a base salary in accordance with the Federal Court of Australia Enterprise Agreement 2018-2021.”

96. According to “Document 5: SAC Report – Senior National Judicial Registrar”, the person who made the decision to approve the selection committee’s recommendation was Sia Lagos.

97. On page 42 of Public Service Gazette PS 22 of 2019, which was published on 30 May 2019, a vacancy notification was published for an ongoing, full time, Senior Executive Band 2 classified Senior National Judicial Registrar vacancy in the Federal Court of Australia. The vacancy identifier for the ongoing, full time, Senior Executive Band 2 classified Senior National Judicial Registrar vacancy is “Vacancy NN 10751036”. Plainly, then, the vacancy notification published on page 42 of Public Service Gazette PS 22 of 2019 for an ongoing, full time, Senior Executive Band 2 classified Senior National Judicial Registrar vacancy in the Federal Court of Australia is the vacancy notification for the Senior National Judicial Registrar vacancy that Jenni Priestley applied for and came to fill.

98. “Document 11: SAC Report – Senior National Judicial Registrar – Federal Criminal Jurisdiction (and accompanying email)” is the report of the selection committee that was assembled to consider the applications of applicants who wished to fill a Senior Executive Band 2 classified Senior National Judicial Registrar vacancy in the Federal Court. According to “Document 11: SAC Report – Senior National Judicial Registrar – Federal Criminal Jurisdiction (and accompanying email)”, the “Gazette Notice Number” for the Senior Executive Band 2 classified Senior National Judicial Registrar vacancy in the Federal Court was “10752476”, and the vacancy “appeared in the Gazette from: 14/06/2019 to 28/06/2019”.

99. The selection committee’s recommendation, such selection committee being constituted by Sia Lagos (convenor), Warwick Soden (member), Paul Farrell (member), and Penny Shakespeare (Australian Public Service Commissioner’s representative), is set out in “Document 5: SAC Report – Senior National Judicial Registrar”. The recommendation provides:

“It is recommended that [REDACTED] be engaged as an Australian Public Service employee on an ongoing basis. The recommended applicant is to be offered a base salary in accordance with the Federal Court of Australia Enterprise Agreement 2018-2021.”

100. The selection committee also merit listed Rowan Davis as a suitable candidate for the Senior Executive Band 2 classified Senior National Judicial Registrar vacancy.

101. According to “Document 11: SAC Report – Senior National Judicial Registrar – Federal Criminal Jurisdiction (and accompanying email)”, Matt Asquith, Acting Assistant Director, People and Culture, sent an email to staffingpolicy[atsymbol]apsc.gov.au on 10 September 2019 and noted that the candidate who was selected by the selection committee as the most meritorious candidate did not accept the Senior Executive Band 2 classified Senior National Judicial Registrar role and, accordingly, Rowan Davis, as the merit listed candidate, was selected to fill the Senior Executive Band 2 classified Senior National Judicial Registrar vacancy.

102. On page 33 of Public Service Gazette PS 25 of 2019, which was published on 20 June 2019, a vacancy notification was published for an ongoing, full time, Senior Executive Band 2 classified Senior National Judicial Registrar – Federal Criminal Jurisdiction vacancy in the Federal Court of Australia. The vacancy identifier for the ongoing, full time, Senior Executive Band 2 classified Senior National Judicial Registrar vacancy is “Vacancy NN 10752476”. Plainly, then, the vacancy notification published on 33 of Public Service Gazette PS 25 of 2019, which was published on 20 June 2019, for an ongoing, full time, Senior Executive Band 2 classified Senior National Judicial Registrar – Federal Criminal Jurisdiction vacancy in the Federal Court of Australia is the vacancy notification for the Senior National Judicial Registrar vacancy that Rowan Davis applied for and came to fill.

103. That leaves only two other Senior National Judicial Registrars identified in the list in paragraph [84] of these submissions: Paul Farrell and Alison Legge.

104. Alison Legge is first identified as a Senior National Judicial Registrar of the Federal Court on page 125 of the 2020 – 2021 annual report of the Federal Court of Australia. In fact, the first ever mention of Alison Legge in any annual report of the Federal Court of Australia is the 2020 – 2021 annual report of the Federal Court of Australia.

105. Paragraph 20(1)(a) of the Australian Public Service Commissioner’s Directions 2016 (Cth) provides that a selection process for a decision to fill a vacancy meets the requirements for merit based selection processes only if “the vacancy, or a similar vacancy, in the Agency was notified in the Public Service Gazette within a period of 12 months before the written decision to engage or promote the successful applicant …”

106. It is most unlikely that “Gazette Notice – Senior National Judicial Registrar”, which was published in Public Service Gazette PS 19 of 2018 on 7 May 2018, is the vacancy notification for the Senior National Judicial Registrar vacancy that Alison Legge applied for and came to fill because it was published on the Public Service Gazette more than 25 months prior to the start of the 2020-2021 financial year. Chances are that “Gazette Notice – Senior National Judicial Registrar”, which was published in Public Service Gazette PS 19 of 2018 on 7 May 2018, is the vacancy notification for the Senior National Judicial Registrar vacancy that Paul Farrell applied for and came to fill.

107. “Document 8: SAC Report – Senior National Judicial Registrar” is the report of the selection committee that was assembled to consider the applications of applicants who wished to fill a Senior Executive Band 2 classified Senior National Judicial Registrar vacancy in the Federal Court.

108. The selection committee’s recommendation, such selection committee being constituted by Sia Lagos (chairperson), David Pringle (panel member) and Andrea Jarratt (panel member), is set out in “Document 5: SAC Report – Senior National Judicial Registrar”, which was to selection Paul Farrell as the “Recommended Candidate” for a Senior Executive Band 2 classified Senior National Judicial Registrar vacancy in the Federal Court.

109. According to “Document 8: SAC Report – Senior National Judicial Registrar”, the person who made the decision to endorse the selection committee’s recommendation was Sia Lagos.

110. Neither the decision of the selection committee to recommend Paul Farrell as the recommended candidate for the Senior Executive Band 2 classified Senior National Judicial Registrar vacancy in the Federal Court, nor Sia Lagos’ decision to endorse the selection committee’s recommendation, in her capacity as the Agency Head’s delegate, is dated.

111. That being said, Paul Farrell was clearly selected as a Senior Executive Band 2 classified Senior National Judicial Registrar vacancy in the Federal Court before both Jenni Priestley and Rowan Davis were selected as Senior Executive Band 2 classified Senior National Judicial Registrar vacancy in the Federal Court. That is because Paul Farrell was a member of both the selection committees assembled to consider Jenni Priestley’s application for a Senior Executive Band 2 classified Senior National Judicial Registrar vacancy (Vacancy NN 10751036), which is dated 29 July 2019, and Rowan Davis’ application for a Senior Executive Band 2 classified Senior National Judicial Registrar vacancy (Vacancy NN 10752476), which is dated 19 August 2019.

112. It is, for the reasons set out in paragraphs [104] – [106], clearly the case that Paul Farrell was selected as a Senior Executive Band 2 classified Senior National Judicial Registrar vacancy in the Federal Court before Alison Legge was selected as a Senior Executive Band 2 classified Senior National Judicial Registrar vacancy in the Federal Court.

113. Therefore, in all likelihood, “Gazette Notice – Senior National Judicial Registrar”, which was published in Public Service Gazette PS 19 of 2018 on 7 May 2018, and is a vacancy notice for a Senior Executive Band 2 classified vacancy in the Federal Court of Australia, is the vacancy notice for the Senior National Judicial Registrar vacancy that Paul Farrell applied for and came to fill.

114. In case Claire Hammerton Cole missed it, I did not request access to the vacancy notice for the Senior National Judicial Registrar vacancy that Paul Farrell applied for and came to fill. I request access to the vacancy notices for the Senior National Judicial Registrar vacancies that Jenni Priestley or Alison Legge applied for or came to fill. I did not request access to the vacancy notice for the Senior National Judicial Registrar – Federal Criminal Jurisdiction vacancy that Rowan Davis applied for and came to fill. I requested access to the vacancy notices for the National Judicial Registrar roles in the Federal Court that each of:

a) Phillip Allaway;
b) Matthew Benter;
c) Rupert Burns;
d) Claire Gitsham;
e) Susan O’Connor;
f) David Ryan; or
g) Tuan Van Le

applied for and came to fill.

115. Plainly, “Gazette Notice – Senior National Judicial Registrar” is not a document within the scope of my FOI request.

116. Were it the case that:

a) Phillip Allaway;
b) Matthew Benter;
c) Rupert Burns;
d) Claire Gitsham;
e) Susan O’Connor;
f) David Ryan; or
g) Tuan Van Le

had applied for and had been selected to fill a Senior Executive Band 2 classified Senior National Judicial Registrar vacancy, one would expect to find their names in the lists of Senior Executive employees published in “Request 2” or “Request 3”, both of which are associated with PA2925-06/9 on the Federal Court of Australia’s disclosure log (www.fedcourt.gov.au/disclosurelog).

117. It will be recalled that “Request 2” or “Request 3”, both of which are associated with PA2925-06/9 on the Federal Court of Australia’s disclosure log (www.fedcourt.gov.au/disclosurelog) set out the names of Senior Executive Service employees in the Federal Court statutory agency in the periods between 1 July 2018 and 12 June 2020 (see paragraphs [85] – [90] of these submissions).

118. For the reasons set out in paragraph [31] of these submissions, all of:

a) Phillip Allaway;
b) Matthew Benter;
c) Rupert Burns;
d) Claire Gitsham;
e) Susan O’Connor;
f) David Ryan; or
g) Tuan Van Le

were registrars of the Federal Court in the 2018 – 2019, 2019 – 2020 and 2020 – 2021 financial years. Phillip Allaway and Rupert Burns had been Deputy District Registrars since 2007, David Ryan had been a Deputy District Registrar since 2016, Tuan Van Le had been listed as a “Judicial Registrar” in the 2018 – 2019 annual report of the Federal Court, and Matthew Benter, Claire Gitsham and Susan O’Connor are listed as “National Judicial Registrars” in the 2018 – 2019 annual report of the Federal Court.

119. Not one of:

a) Phillip Allaway;
b) Matthew Benter;
c) Rupert Burns;
d) Claire Gitsham;
e) Susan O’Connor;
f) David Ryan; or
g) Tuan Van Le

is listed as a Senior Executive Service Band 2 classified employee in the Federal Court statutory agency in “Request 2” or “Request 3”.

120. Not one of:

a) Phillip Allaway;
b) Matthew Benter;
c) Rupert Burns;
d) Claire Gitsham;
e) Susan O’Connor;
f) David Ryan; or
g) Tuan Van Le

is listed as a Senior National Judicial Registrar in “Request 2” or “Request 3”.

121. Indeed, the only person among:

a) Phillip Allaway;
b) Matthew Benter;
c) Rupert Burns;
d) Claire Gitsham;
e) Susan O’Connor;
f) David Ryan; or
g) Tuan Van Le

who gets a mention in “Request 2” or “Request 3” is Susan O’Connor. Susan O’Connor is listed in both documents as full time, ongoing National Judicial Registrar based in New South Wales, who bears a Senior Executive Band 1 classification. Susan O’Connor is listed as a Senior Executive Band 1 classified National Judicial Registrar who commenced working in the Federal Court on 19 November 2018 on a full time, ongoing basis.

122. Presumably, then:

a) Phillip Allaway;
b) Matthew Benter;
c) Rupert Burns;
d) Claire Gitsham;
e) David Ryan; or
f) Tuan Van Le

are came to fill Executive Level 2 classified National Judicial Registrar vacancies, given that the Federal Court’s own position description documents suggest that the National Judicial Registrar role bears both Executive Level 2 and Senior Executive Band 1 classifications.

123. The presumption is also supported by an article published in The Australian – Federal Court boss warned on job rule sidestep (https://www.theaustralian.com.au/busines...) in which Kate McMullan of the Australian Public Service Commission is quoted as noting that the National Judicial Registrar role was the subject of 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 or workload.”

124. The authors of the article note that management figures in the Federal Court had allocated Executive Level 2 classifications to several National Judicial Registrars, and had used individual flexibility arrangements to bump up the pay of the Executive Level 2 classified National Judicial Registrars to get around the cap on Senior Executive Service employees that could constitute the Federal Court statutory Agency. Indeed, Scott Tredwell, the Federal Court’s General Counsel and the person whose internal review decision is currently under review, is quoted, in an email sent to Sia Lagos:

“I have some concerns regarding our proposed statements in respect of the SES cap and our use of Individual Flexibility Agreements to, in effect, get around the cap … I am also wondering how our response sits as against the Public Service Classification Rules 2000, particularly Rules 6 to 10.”

125. Aside from the facts that:

a) I did not request access to the vacancy notice for the Senior National Judicial Registrar vacancies that certain people applied for and came to fill; and
b) the Senior National Judicial Registrar role is different to the National Judicial Registrar role; and
c) the Senior National Judicial Registrar vacancies in the Federal Court bear Senior Executive Band 2 classifications, while the National Judicial Registrar vacancies bear, according to position descriptions published on the Federal Court of Australia freedom of information disclosure log, Senior Executive Band 1 or Executive Level 2 classifications,

for the reasons set out in paragraphs [77] – [124] of these submissions, “Gazette Notice – Senior National Judicial Registrar” is not the vacancy notice for the National Judicial Registrar vacancy in the Federal Court that each of:

a) Phillip Allaway;
b) Matthew Benter;
c) Rupert Burns;
d) Claire Gitsham;
e) Susan O’Connor;
f) David Ryan; or
g) Tuan Van Le

applied for and came to fill. For the reasons set out in paragraphs [106] – [113] of these submissions, “Gazette Notice – Senior National Judicial Registrar” is more likely than not the vacancy notice for the Senior National Judicial Registrar vacancy in the Federal Court that Paul Farrell applied for and came to fill.

GAZETTE NOTICE – JUDICIAL REGISTRAR

126. Claire Hammerton Cole claims that “Gazette Notice – Judicial Registrar” is a document relevant to my FOI request. For the reasons that follow, it will be demonstrated that it is not a document that falls within the scope of my FOI request.

127. As noted in paragraph [81] of these submissions, position description documents for the “National Judicial Registrar” roles in the Federal Court of Australia are associated with PA2925-06/40 on the Federal Court of Australia’s disclosure log (www.fedcourt.gov.au/disclosurelog).

128. According to the position description documents for both the Executive Level 2 classified National Judicial Registrar role and the Senior Executive Band 1 Classified National Judicial Registrar role, National Judicial Registrars “[perform] a leadership role for Judicial Registrars and legal support staff at a local and national level …”

129. Thus, the National Judicial Registrar role is separate and distinct to the Judicial Registrar role.

130. The Federal Court of Australia’s annual reports also attest to the distinction drawn between National Judicial Registrars and Judicial Registrars. A perusal of the 2018 – 2019 (see appendix 4), 2019 – 2020 (see appendix 4), 2020 – 2021 (see appendix 4), and 2021 – 2022 (see appendix 4) annual reports of the Federal Court demonstrates that a distinction is drawn between the Federal Court’s “Judicial Registrars” and the Federal Court’s “National Judicial Registrars”. Indeed, a distinction is drawn between “National Judicial Registrars” and “National Judicial Registrars & District Registrars”, and between “National Judicial Registrars” and “Senior National Judicial Registrars”.

131. The list of registrars on the Federal Court of Australia’s website (https://fedcourt.gov.au/about/registrars...) also attests to the distinction between “National Judicial Registrars” and “Judicial Registrars”.

132. In case Claire Hammerton Cole had not noticed, I did not request access to the vacancy notice for the Judicial Registrar role in the Federal Court that identified individuals applied for and came to fill. I asked for access to the vacancy notices for the National Judicial Registrar roles that each of:

a) Phillip Allaway;
b) Matthew Benter;
c) Rupert Burns;
d) Claire Gitsham;
e) Susan O’Connor;
f) David Ryan; or
g) Tuan Van Le

applied for and came to fill.

133. Plainly “Gazette Notice – Judicial Registrar” is not a document that I requested access to.

134. Plainly, “Gazette Notice – Judicial Registrar” is not a document relevant to my FOI request.

PART 2

135. Claire Hammerton Cole states, in paragraph [1] of her submission of 6 October 2022, that “the requirements of subsection 24A(1) have been met in that the Court to ‘all reasonable steps’ to find documents within the scope of the FOI request …”

136. In paragraph [10] – [17] of her submission of 6 October 2022, Claire Hammerton Cole addresses searches conducted in respect of FOI requests made by others. It is difficult to make sense of Claire Hammerton Cole’s point in these paragraphs, and her submissions in these paragraphs are, at best, fluff.

137. Each FOI request must be construed according to the terms of the request. Determining the scope and relevance of documents for the FOI request that I made by reference to the terms of an FOI request made by another person is pointless unless there is a substantive identity between the terms employed in my FOI request and the FOI requests of “L Marsten” and/or “Jake S”.

138. Indeed, Claire Hammerton Cole appears to concede, in paragraphs [12] and [14] that the terms of my FOI request are not substantively identical to the terms of the FOI requests made by “L Marsten”. Accordingly, it would be pure folly to rely on searches conducted for the FOI request made by “L Marsten” to respond to the terms of my FOI request, which is plainly differently worded.

139. To the extent that Claire Hammerton Cole is submitting that it was appropriate to rely on searches conducted for FOI requests the terms of which did not share substantive identity with the terms of my FOI request, Claire Hammerton Cole’s submissions should be dismissed as misguided and plainly wrong.

140. In paragraph [19] of her submissions of 6 October 2022, Claire Hammerton Cole states:

“The Court further submits that the various claims made by the applicant in their Information Commissioner review are misconceived: namely, the applicant’s claim that the documents provided to them do not meet the terms of their request, and the applicant’s claim that the Court’s decision in a separate FOI request is inconsistent with the documents that have been provided in this matter.”

141. For the reasons set out in paragraphs [5] – [134] of my submissions, paragraph [19] of Claire Hammerton Cole’s submissions are false. Advancing non-sense emphatically does not transform non-sense into sense.

142. In paragraph [21] of her submissions of 6 October 2022, Claire Hammerton Cole states:

“The Court maintains its position that it is not up to the FOI applicant to determine what documents do and do not fall within the scope of their FOI request. That question is to be determined by the requisite decision-maker who has the appropriate delegation under s 23 of the FOI Act, following all reasonable steps taken to search for documents and an assessment of each of those documents as to whether they are within the scope of the request.”

143. The submission in paragraph [21] of Claire Hammerton Cole’s submissions of 6 October 2022 is bewildering.

144. To the extent that Claire Hammerton Cole is submitting that I have challenged her authority, as the original FOI decision maker, or the authority of Scott Tredwell, as the internal review decision maker, to make the relevant decisions, that submission is garbage; I have done no such thing.

145. To the extent that Claire Hammerton Cole is submitting that because she and Scott Tredwell had authority to make decisions in respect of my FOI request under the Freedom of Information Act 1982, I am precluded from drawing attention to errors of fact or law to the attention of a reviewing officer, then Claire Hammerton Cole has misapprehended the entire concept of (merits) review. Indeed, if this is the meaning Claire Hammerton Cole’s submission, then Claire Hammerton Cole has elided the concept of the lawful authority to decide with the concept of the correctness of a decision.

146. Just because a person has authority to make a decision, it does not follow that the decision cannot be challenged. If that were the case, then once a decision maker’s jurisdiction had been enlivened, then any decision, right or wrong, would exhaust the matter. In other words, the only relevant question would be “does the person have authority to decide?”, and the correctness or otherwise of the person’s decision would be irrelevant. Indeed, the need for reasons would be pointless because, right or wrong, the making of a decision (whether it is made rationally or capriciously, or without any regard to evidence, or without any regard to reality) would end the matter. If that is what Claire Hammerton Cole, a Registrar of the Federal Court of Australia, is advancing in paragraph [21] of her submissions, then that is just embarrassing.

147. For the reasons provided in paragraphs [135] – [146] of my submissions, Claire Hammerton Cole’s submissions of 6 October 2022 do not amount to much and, accordingly, little weight should be ascribed to the them.

CONCLUDING REMARKS

148. As I have already done on Right to Know (see https://www.righttoknow.org.au/request/v...), it is worth noting that Nicola Colbran, National Judicial Registrar & District Registrar, made a decision in respect of an identically worded FOI request that was submitted to the Federal Court of Australia by Aiofe: https://www.righttoknow.org.au/request/m...).

149. On 1 May 2022, under the Freedom of Information Act 1982, Aiofe requested, among other things:

a) the vacancy notification for the National Judicial Registrar role that Phillip Allaway applied for and was selected to fill;
b) the vacancy notification for the National Judicial Registrar role that Matthew Benter applied for and was selected to fill;
c) the vacancy notification for the National Judicial Registrar role that Rupert Burns applied for and was selected to fill;
d) the vacancy notification for the National Judicial Registrar role that Claire Gitsham applied for and was selected to fill;
e) the vacancy notification for the National Judicial Registrar role that Susan O’Connor applied for and was selected to fill;
f) the vacancy notification for the National Judicial Registrar role that David Ryan applied for and was selected to fill; and
g) the vacancy notification for the National Judicial Registrar role that Tuan Van Le applied for and was selected to fill.

150. Aiofe’s request can be accessed on Right to Know, here:

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

151. I have reason to believe that Aiofe’s request was based on my FOI request.

152. In respect of the request that Aiofe has made for access to:

a) the vacancy notification for the National Judicial Registrar role that Phillip Allaway applied for and was selected to fill;
b) the vacancy notification for the National Judicial Registrar role that Matthew Benter applied for and was selected to fill;
c) the vacancy notification for the National Judicial Registrar role that Rupert Burns applied for and was selected to fill;
d) the vacancy notification for the National Judicial Registrar role that Claire Gitsham applied for and was selected to fill;
e) the vacancy notification for the National Judicial Registrar role that Susan O’Connor applied for and was selected to fill;
f) the vacancy notification for the National Judicial Registrar role that David Ryan applied for and was selected to fill; and
g) the vacancy notification for the National Judicial Registrar role that Tuan Van Le applied for and was selected to fill,

on 29 August 2022, Nicola Colbran made the following finding:

“The decision dated 30 June 2022 identified four documents within the scope of your request. However, I am of the view that the documents identified are not within scope as they do not relate to both the role the person applied for and that they were selected to fill. I am satisfied that all reasonable steps have been taken to find the documents you have requested, but the documents cannot be found or do not exist (see s 24A(1) of the FOI Act). I therefore refuse your access request.”

153. Nicola Colbran’s reasons for decision can be accessed on Right to Know, here:

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

154. What is more, Nicola Colbran set aside an FOI decision made by Claire Hammerton Cole on 30 June 2022 (https://www.righttoknow.org.au/request/m...), in which Claire Hammerton Cole advanced the claim that the documents that fell within the scope of Aiofe’s FOI request of 1 May 2022 were:

a) “Gazette Notice – Senior National Judicial Registrar”;
b) “Gazette Notice – National Judicial Registrar & District Registrar”;
c) “Gazette Notice – Judicial Registrar”; and
d) “Gazette Notice – Deputy District Registrar”,

or, in other words, the same documents that Claire Hammerton Cole and Scott Tredwell obstinately claim are the documents that I requested under the Freedom of Information Act on 28 April 2022.

155. Plainly, Nicola Colbran formed the view that Claire Hammerton Cole’s decision could not be supported on the facts and set that aspect of it aside and, in its place, determined that the documents requested “cannot be found or do not exist.” So much for Claire Hammerton Cole’s submission (in paragraph [19] of her submissions of 6 October 2022) that my claim that “the Court’s decision in a separate FOI request is inconsistent with the documents that have been provided in this matter” is "misconceived".

156. As I have stated, and as is self-evident, the Federal Court cannot have diametrically opposed decisions on two identically worded FOI requests.

157. For the reasons provided in these submissions:

a) “Gazette Notice – Senior National Judicial Registrar”;
b) “Gazette Notice – National Judicial Registrar & District Registrar”;
c) “Gazette Notice – Judicial Registrar”; and
d) “Gazette Notice – Deputy District Registrar”

are not the documents that I requested in my FOI request. They do not fall within the scope of my request. That much should be clear to even the most obstinate Federal Court registrars.

158. If the Federal Court has the documents that I requested, then the Federal Court should make a decision in respect of granting access to the document requested.

159. If the Federal Court does not have the documents that I requested, then the Federal Court should, as Nicola Colbran did, make a decision refusing access to the requested documents. Of course, that would beg the question how seven people were selected to fill vacancies in the course of merit based selection processes for which no vacancy notices were published in the Public Service Gazette (interestingly, Nicola Colbran also found that not one of:

a) Phillip Allaway;
b) Matthew Benter;
c) Rupert Burns;
d) Claire Gitsham;
e) Susan O’Connor;
f) David Ryan; or
g) Tuan Van Le

submitted a job application for the National Judicial Registrar role he or she was selected to fill – how could they have? There were no vacancy notices).

160. There is something rotten going on at the Federal Court of Australia.

Yours sincerely,

Allan

Marcus left an annotation ()

Hi Allan,

It might interest you (and others) to know that Claire Hammerton Cole, the person whose submissions you responded to, made a decision in response to a request that I made on 7 May 2022 that was set aside for being wrong.

On 7 May 2022, I requested access to the following documents:

a) the position description for the National Judicial Registrar role that Claire Gitsham applied for and succeeded in being selected to fill;
b) the classification evaluation for the National Judicial Registrar role that Claire Gitsham applied for and succeeded in being selected to fill;
c) the vacancy notice for the National Judicial Registrar role, published in the Public Service Gazette or elsewhere, that Claire Gitsham applied for and succeeded in being selected to fill;
d) the position description for the National Judicial Registrar role that Matthew Benter applied for and succeeded in being selected to fill;
e) the classification evaluation for the National Judicial Registrar role that Matthew Benter applied for and succeeded in being selected to fill; and
f) the vacancy notice for the National Judicial Registrar role, published in the Public Service Gazette or elsewhere, that Matthew Benter applied for and succeeded in being selected to fill.

Claire Hammerton Cole provided me with a decision letter in which she claimed:

"As a result of the searches undertaken, five (5) documents were identified as falling within the scope of your request, including gazette notices and position descriptions. The searches undertaken did not identify any classification evaluations.

• Gazette Notice – National Judicial Registrar & District Registrar;
• Gazette Notice – Judicial Registrar;
• Position Description – National Judicial Registrar & District Registrar;
• Position Description – National Judicial Registrar;
• Position Description – Judicial Registrar."

(https://www.righttoknow.org.au/request/p...)

On 8 June 2022, I requested an internal review of Claire Hammerton Cole's decision: https://www.righttoknow.org.au/request/p....

In my internal review, I said:

"I am writing to request an internal review of Federal Court of Australia's handling of my FOI request 'Position descriptions, vacancy notices and classification evaluations for the National Judicial Registrar roles that Claire Gitsham and Matthew Benter were successfully selected to fill'.

I would like a complete review of your decision.

The documents you claim to have provided in response to my request are not the documents that I requested. I did not ask for any Executive Level 2 "Judicial Registrar" position descriptions. I did not ask for an Executive Level 2 "Judicial Registrar" Gazette Notice. I did not ask for the Gazette notice for an SES Band 1 "National Judicial Registrar & District Registrar" roles, each of which, I might add, were filled by Tim Luxton, Murray Belcher and Russell Trott, respectively. I did not ask for the position description for an SES Band 1 "National Judicial Registrar & District Registrar" roles, each of which, I might add, were filled by Tim Luxton, Murray Belcher and Russell Trott, respectively.

What kind of idiot do you take me for?

I also want access to the classification evaluations for the National Judicial Registrar roles that Claire Gitsham and Matthew Benter each applied for and succeeded in being selected to fill."

On 8 July 2022, Nicola Colbran provided me with an internal review decision: https://www.righttoknow.org.au/request/p....

In that internal review decision, she said:

"I have reviewed the decision of 6 June 2022 in relation to the documents described in items (a) to (f) of the FOI request. That decision identified documents within the scope of your request. However, I am of the view that the documents identified are not within scope. I am satisfied that all reasonable steps have been taken to find the documents you have requested, but the documents cannot be found or do not exist (see s 24A(1) of the FOI Act). I therefore refuse your access request."

Much like in your case, Claire Hammerton Cole provided me with documents that were clearly not documents within the scope of my request. As it turns out, there was no:

a) position description for the National Judicial Registrar role that Claire Gitsham applied for and succeeded in being selected to fill;
b) classification evaluation for the National Judicial Registrar role that Claire Gitsham applied for and succeeded in being selected to fill;
c) vacancy notice for the National Judicial Registrar role, published in the Public Service Gazette or elsewhere, that Claire Gitsham applied for and succeeded in being selected to fill;
d) position description for the National Judicial Registrar role that Matthew Benter applied for and succeeded in being selected to fill;
e) classification evaluation for the National Judicial Registrar role that Matthew Benter applied for and succeeded in being selected to fill; and
f) vacancy notice for the National Judicial Registrar role, published in the Public Service Gazette or elsewhere, that Matthew Benter applied for and succeeded in being selected to fill.

You have obviously done your homework and managed to track down who the vacancy notices apply to or most probably apply to. For your information, whatever it is that Claire Hammerton Cole is saying applies to your request, does not apply to Claire Gitsham or Matthew Benter.

Send me and email if you want to have a discussion about your IC review.

Regards,

Marcus

Dear Mr English,

Yet another example of Claire Hammerton Cole’s false assertions about vacancy notices relating to Matthew Benter and Claire Gitsham, National Judicial Registrars in the Federal Court, has been drawn to my attention (see https://www.righttoknow.org.au/request/v...).

On 7 May 2022, Marcus requested the following documents from the Federal Court of Australia under the FOI Act:

a) the position description for the National Judicial Registrar role that Claire Gitsham applied for and succeeded in being selected to fill;
b) the classification evaluation for the National Judicial Registrar role that Claire Gitsham applied for and succeeded in being selected to fill;
c) the vacancy notice for the National Judicial Registrar role, published in the Public Service Gazette or elsewhere, that Claire Gitsham applied for and succeeded in being selected to fill;
d) the position description for the National Judicial Registrar role that Matthew Benter applied for and succeeded in being selected to fill;
e) the classification evaluation for the National Judicial Registrar role that Matthew Benter applied for and succeeded in being selected to fill; and
f) the vacancy notice for the National Judicial Registrar role, published in the Public Service Gazette or elsewhere, that Matthew Benter applied for and succeeded in being selected to fill.

(see https://www.righttoknow.org.au/request/p...).

Notice the similarity in the wording of our FOI requests. I would go so far as to say they are substantially identical.

In a letter of decision that Claire Hammerton Cole provided to Marcus on 6 June 2022, Claire Hammerton Cole stated:

"As a result of the searches undertaken, five (5) documents were identified as falling within the scope of your request, including gazette notices and position descriptions. The searches undertaken did not identify any classification evaluations.

• Gazette Notice – National Judicial Registrar & District Registrar;
• Gazette Notice – Judicial Registrar;
• Position Description – National Judicial Registrar & District Registrar;
• Position Description – National Judicial Registrar;
• Position Description – Judicial Registrar."

(https://www.righttoknow.org.au/request/p...).

Notice how Claire Hammerton Cole did, in much the same way as she did in respect of my FOI request, pass off the “ Gazette Notice – National Judicial Registrar & District Registrar” and “Gazette Notice – Judicial Registrar” vacancy notices as the:

a) the vacancy notice for the National Judicial Registrar role, published in the Public Service Gazette or elsewhere, that Claire Gitsham applied for and succeeded in being selected to fill;
b) the vacancy notice for the National Judicial Registrar role, published in the Public Service Gazette or elsewhere, that Matthew Benter applied for and succeeded in being selected to fill.

For the reasons that I provided in paragraphs [33] – [76] of my submissions, the “Gazette Notice – National Judicial Registrar & District Registrar” cannot be the vacancy notice for the National Judicial Registrar role, published in the Public Service Gazette or elsewhere, that either Claire Gitsham or Matthew Benter applied for and succeeded in being selected to fill because:

a) Tim Luxton;
b) Murray Belcher; and
c) Russell Trott

applied for and came to fill the Senior Executive Band 1 classified National Judicial Registrar & District Registrar vacancies in Melbourne, Brisbane and Perth, respectively.

Moreover, if Matthew Benter and Claire Gitsham had filled the Senior Executive Band 1 classified National Judicial Registrar & District Registrar vacancies, then they would be:

a) listed as having been appointed to the office of District Registrar in the annual reports of the Federal Court (see paragraphs [44], [57], [71] and [75] of my submissions); and
b) listed as Senior Executive Service employees of the Federal Court in the documents with the titles “Request 2” and “Request 3” (see paragraphs [85] – [90] and [114] – [121] of my submissions).

They are not.

For the reasons that I provided in paragraphs [126] – [134] of my submissions, the “Gazette Notice – Judicial Registrar” cannot be the vacancy notice for the National Judicial Registrar role, published in the Public Service Gazette or elsewhere, that either Claire Gitsham or Matthew Benter applied for and succeeded in being selected to fill.

On 8 June 2022, Marcus requested an internal review of Claire Hammerton Cole’s FOI decision, I which he stated:

"I am writing to request an internal review of Federal Court of Australia's handling of my FOI request 'Position descriptions, vacancy notices and classification evaluations for the National Judicial Registrar roles that Claire Gitsham and Matthew Benter were successfully selected to fill'.

I would like a complete review of your decision.

The documents you claim to have provided in response to my request are not the documents that I requested. I did not ask for any Executive Level 2 "Judicial Registrar" position descriptions. I did not ask for an Executive Level 2 "Judicial Registrar" Gazette Notice. I did not ask for the Gazette notice for an SES Band 1 "National Judicial Registrar & District Registrar" roles, each of which, I might add, were filled by Tim Luxton, Murray Belcher and Russell Trott, respectively. I did not ask for the position description for an SES Band 1 "National Judicial Registrar & District Registrar" roles, each of which, I might add, were filled by Tim Luxton, Murray Belcher and Russell Trott, respectively.

What kind of idiot do you take me for?

I also want access to the classification evaluations for the National Judicial Registrar roles that Claire Gitsham and Matthew Benter each applied for and succeeded in being selected to fill."

(https://www.righttoknow.org.au/request/p...).

On 8 July 2022, Nicola Colbran, the National Judicial Registrar & District Registrar in South Australia provided Marcus with her internal review decision. In that internal review decision, Nicola Colbran stated:

"I have reviewed the decision of 6 June 2022 in relation to the documents described in items (a) to (f) of the FOI request. That decision identified documents within the scope of your request. However, I am of the view that the documents identified are not within scope. I am satisfied that all reasonable steps have been taken to find the documents you have requested, but the documents cannot be found or do not exist (see s 24A(1) of the FOI Act). I therefore refuse your access request."

(https://www.righttoknow.org.au/request/p...).

Again, Nicola Colbran found that Claire Hammerton Cole’s claims that the:

• Gazette Notice – National Judicial Registrar & District Registrar;
• Gazette Notice – Judicial Registrar,

are the vacancy notices for the National Judicial Registrar role, published in the Public Service Gazette or elsewhere, that Claire Gitsham / Matthew Benter applied for and succeeded in being selected to fill are false. In fact, Nicola Colbran went further than that and stated that there were no documents that fell within the scope of the request. In other words, the vacancy notices for the National Judicial Registrar role, published in the Public Service Gazette or elsewhere, that Claire Gitsham / Matthew Benter applied for and succeeded in being selected to fill do not exist (it is practically impossible to claim that a document published in the Public Service Gazette cannot be found – the Public Service Gazette is publicly accessible to all the world - www.apsjobs.gov.au/s/all-gazette-issues). Basically, Nicola Colbran has conceded that Claire Gitsham and Matthew Benter did not apply for the National Judicial Registrar vacancies that they succeeded in filling AND that there was no notification about the existence of the vacancies that they succeeded in filling (how could they have applied for vacancies that were not notified to the Australian community?).

Yours sincerely,

Allan

Dear Mr English,

The purpose of this email is to provide you with a few additional comments, which support certain statements in my submissions of 27 October 2022 (see https://www.righttoknow.org.au/request/v...).

In paragraph [15] of my submissions of 27 October 2022, I stated:

“In the period between the publications of the 2016-2017 annual report and the 2017-2018 annual report, there appears to have been a change to Mr Ryan’s title. There was a change to the titles of Court’s deputy district registrars, regardless of the registries in which the deputy district registrars worked. They are held out to the public as ‘Judicial Registrars’.”

This submission is supported by a publication, dated 22 May 2018, on the website of the Federal Court of Australia: www.fedcourt.gov.au/news-and-events/22-m....

In that publication of 22 May 2018, Sia Lagos identified new titles for the following registrar roles:

a) the person with the title of “National Operations Registrar” would take on the title of “Principal Judicial Registrar & National Operations Registrar”;
b) the person with the title of “Deputy National Operations Registrar” would take on title of “Deputy Principal Judicial Registrar & Deputy National Operations Registrar”;
c) the people who held the offices of of “District Registrar”, which is an office of registrar under the Federal Court of Australia Act 1976 (Cth) (see ss 18N(1)(a) and 34(3)), would take on the title of “National Judicial Registrar & District Registrar”;
d) the person with the title of “National Appeals Registrar” would take on the title of “National Judicial Registrar – Appeals”;
e) the person with the title on “National Native Title Registrar” would take on the title of “National Judicial Registrar – Native Title”;
f) the people who held the offices of “Deputy District Registrar”, which is an office of registrar under s 18N(1)(b) of the Federal Court of Australia Act 1976 (Cth), would take on the title of “Judicial Registrar”;
g) the persons with the title of “Native Title Registrar” would take on the title of “Judicial Registrar – Native Title”; and
h) the persons with the title of “NCF Registrar” would take on the title of “National Registrar”.

I also noted in paragraph [75] of my submissions of 27 October 2022 that:

“If ‘Gazette Notice – National Judicial Registrar & District Registrar’ was the vacancy notice for the National Judicial Registrar role in the Federal Court that each of:

a) Phillip Allaway;
b) Matthew Benter;
c) Rupert Burns;
d) Claire Gitsham;
e) Susan O’Connor;
f) David Ryan; or
g) Tuan Van Le

applied for and came to fill, then one would expect that one or other of:

a) Phillip Allaway;
b) Matthew Benter;
c) Rupert Burns;
d) Claire Gitsham;
e) Susan O’Connor;
f) David Ryan; or
g) Tuan Van Le

would have been appointed to the office of ‘District Registrar’. According to the annual reports of the Federal Court of Australia, not one of:

a) Phillip Allaway;
b) Matthew Benter;
c) Rupert Burns;
d) Claire Gitsham;
e) Susan O’Connor;
f) David Ryan; or
g) Tuan Van Le

has ever been appointed to the office of ‘District Registrar’ (as to the three offices, other than the office of Chief Executive Officer and Principal Registrar, to which registrars of the Court may be appointed, please refer to paragraphs 18(1)(aa), 18(1)(a) and 18(1)(b) of the Federal Court of Australia Act 1976 (Cth)). Unlike:

a) Phillip Allaway;
b) Matthew Benter;
c) Rupert Burns;
d) Claire Gitsham;
e) Susan O’Connor;
f) David Ryan; or
g) Tuan Van Le,

each of Tim Luxton, Russell Trott and Murray Belcher were appointed to the office of ‘District Registrar’ (see, for example, page 129 of the 2018 – 2019 annual report of the Federal Court of Australia – https://fedcourt.gov.au/digital-law-libr...).

The contents of the publication of 22 May 2018, which can be accessed at www.fedcourt.gov.au/news-and-events/22-m..., further supports the submission in paragraph [75].

Yours sincerely,

Allan

Allan left an annotation ()

PUBLICATION ON FEDERAL COURT WEBSITE: https://fedcourt.gov.au/news-and-events/...

Registrars and Registrar Titles

22 May 2018

Since 2015, under the National Court Framework (NCF), the Federal Court has been progressively undertaking fundamental reforms as to the way it operates. The key purpose of the NCF is to reinvigorate the Court's approach to case management by further modernising the Court's operations so that the Court is better placed to meet the demands of litigants and can operate as a truly national and international Court.

The NCF reforms have been successfully implemented in respect of the judicial work of the Court, including organising and managing the Court's work by reference to nine National Practice Areas (NPAs), the introduction of national direct-to-chambers duty judge arrangements and ensuring nationally consistent and simplified practice through a suite of new national practice notes, including the Central Practice Note. The reforms are now being extended to apply to the important legal work undertaken by registrars of the Court, including how that work is allocated and managed nationally.

Registrars of the Federal Court carry out a range of critical functions, including supporting judges by conducting mediations as part of effective Court-annexed ADR processes; undertaking challenging and often complex case management in support of judges (such as discovery disputes, return of subpoena matters and conferences of experts) and by presiding in Court and making judicial determinations over a wide variety of matters, primarily in the field of insolvency law.

In addition, under the NCF reforms, registrars will support National and Registry Coordinating Judges with the judicial management of each NPA, including the development of new, or the enhancement of existing, NPA user groups. Registrars will also continue to provide direct support to the lawyers and litigants through their duty registrar work and liaison with the profession.

New registrar titles, commensurate with the important roles performed by registrars, will apply from Monday, 28 May 2018. The new titles, for the following registrar roles, are outlined below:

OLD TITLE: National Operations Registrar
NEW TITLE: Principal Judicial Registrar & National Operations Registrar

OLD TITLE: Deputy National Operations Registrar
NEW TITLE: Deputy Principal Judicial Registrar & Deputy National Operations Registrar

OLD TITLE: District Registrar
NEW TITLE: National Judicial Registrar & District Registrar

OLD TITLE: National Appeals Registrar
NEW TITLE: National Judicial Registrar – Appeals

OLD TITLE: National Native Title Registrar
NEW TITLE: National Judicial Registrar – Native Title

OLD TITLE: Deputy District Registrar
NEW TITLE: Judicial Registrar

OLD TITLE: Native Title Registrar
NEW TITLE: Judicial Registrar – Native Title

OLD TITLE: NCF Registrar
NEW TITLE: National Registrar

It should be noted that, notwithstanding the importance of the new titles, there is no formal change (in a statutory sense) to the status of a registrar of the Federal Court or Federal Circuit Court, and parties can continue to refer to registrars in Court in the usual way (i.e. using the title “Registrar”).

Similarly, certain formalities, such as the form of a registrar’s order, will remain unchanged. It should also be noted that the registrars of the Federal Court are also registrars of the Federal Circuit Court (general federal law). However, the change to registrar titles applies within the Federal Court only, and there is no such change presently proposed with respect to the title of registrars in the Federal Circuit Court (general federal law).

If you have any queries regarding the above, please contact the Court via email (query[atsymbol]fedcourt.gov.au).

Sia Lagos
National Operations Registrar

OAIC - FOI DR,

Dear Mr Lark
Thank you for your further submissions. I apologise for the delay acknowledging your email.
Your matter is currently awaiting further assessment by a review adviser. Once your matter has been assessed we will write to you to discuss the next steps.
Kind regards
 Carl English
Intake and Early Resolution Team
Freedom of Information Regulatory Group
Office of the Australian Information Commissioner
GPO Box 5288 Sydney NSW 2001  |  oaic.gov.au
1300 363 992  |  [email address]

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