Whether Kate McMullan provided procedural fairness to the people she found had contravened the Public Service Act 1999

The request was refused by Australian Public Service Commission.

Dear Australian Public Service Commission,

In an article published in The Australian on 8 February 2022, Kate McMullan is quoted as writing to Sia Lagos, the CEO and Principal Registrar of the Federal Court. The quote is reproduced from a report Ms McMullan had prepared after conducting her ill fated PID investigation under the Public Interest Disclosure Act 2013 (ill fated because it is not the subject of a Category 4 investigation by the Commonwealth Ombudsman).

The following is recorded in the article (Untried junior lawyers score key Federal Court appointments):

In late December 2020, Ms McMullan wrote to Ms Lagos to inform her she had found the recruitment process that led to the court promoting the woman had breached the Public Service Act because “all eligible members of the community were not given a reasonable opportunity to apply to perform the relevant duties”.

“(This is) because … if admission as a legal practitioner was not essential for performance of the role, listing it as an essential requirement in the advertisement
may have precluded other members of the community with the same qualifications as (the woman) from applying for the position.

Admission as a legal practitioner is listed as essential for performance of the role, but does not appear to have been considered as part of the selection process,” Ms McMullen wrote.

“(She) … was selected over a field of candidates all of whom did have this work-related quality.”

It has since come to light that the unmeritorious female candidate referred to by Ms McMullan is Caitlin Wu. The Federal Court published a copy of Ms Wu's promotion notice on this website a few weeks ago.

If Ms McMullan did find that there were contraventions of the Public Service Act, then she would have found that the people who selected Ms Wu had contravened the Public Service Act (and, in particular, the APS Employment Principles, which set merit as the primary criterion for engagement or promotion).

Sia Lagos, David Pringle and Andrea Jarratt were the members of the selection panel that selected Caitlin Wu "over a field of candidates all of whom did have this work-related quality", despite Ms Wu not having the essential qualifications required for the role.

I want to know whether Ms McMullan afforded members of the selection panel with procedural fairness before concluding that they had contravened the Public Service Act.

Accordingly, under the FOI Act, I request the following documents:

a) any and all documents evidencing an invitation to Ms Andrea Jarratt to make submissions to Ms McMullan about the adverse findings against her;
b) any and all documents evidencing an invitation to Mr David Pringle to make submissions to Ms McMullan about the adverse findings against him;
c) any and all documents setting out written submission from Andrea Jarratt to Ms McMullan;
d) any and all documents setting out written submission from David Pringle to Ms McMullan;
e) any and all documents evidencing an invitation to Ms Andrea Jarratt for an interview with Ms McMullan in relation to the adverse findings against her;
f) any and all documents evidencing an invitation to Mr David Pringle for an interview with Ms McMullan in relation to the adverse findings against him; and
g) any and all records of interview involving either Ms Jarratt, or Mr Pringle, or both Mr Jarratt and Mr Pringle.

Please provide the documents to me by return email.

Yours faithfully,

Mircea

FOI, Australian Public Service Commission

5 Attachments

OFFICIAL

Dear Applicant

 

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

 

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

 

Regards

 

 

FOI Officer

Legal Services

 

Australian Public Service Commission

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

 

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

 

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

 

 

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FOI, Australian Public Service Commission

8 Attachments

OFFICIAL

Dear Applicant

 

A decision notice is attached.

Regards

 

FOI OFFICER

Legal Services

 

Australian Public Service Commission

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

 

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

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

 

 

 

 

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

 

 

 

 

From: FOI <[email address]>
Sent: Tuesday, 17 May 2022 10:27 AM
To: Mircea <[FOI #8869 email]>
Cc: FOI <[email address]>
Subject: LEX 127 Freedom of Information request - Acknowledgement
[SEC=OFFICIAL]

 

OFFICIAL

Dear Applicant

 

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

 

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

 

Regards

 

 

FOI Officer

Legal Services

 

Australian Public Service Commission

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

 

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

 

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

 

 

 

 

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

 

 

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Dear Ms Strangio,

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

I am writing to request an internal review of Australian Public Service Commission's handling of my FOI request 'Whether Kate McMullan provided procedural fairness to the people she found had contravened the Public Service Act 1999'.

Your response in very problematic.

I know that Sia Lagos, David Pringle and Andrea Jarratt selected Ms Caitlin Wu for the Executive Level 1 NCF Registrar role.

I also know that Ms Kate McMullan made the following findings in her PID report:

"I therefore find on the balance of probabilities that the recruitment process that ultimately led to the FCSA promoting Ms Wu into this position did not comply with the APS Employment Principles under subsection 10A(2) of the PS Act in one or more of the following respects:

a. All eligible members of the community were not given a reasonable opportunity to apply
to perform the relevant duties, because:

i. if admission as a practitioner of the Supreme Court of a State or a Territory, or
the High Court of Australia was not essential for performance of the role,
listing it as an essential requirement in the advertisement may have precluded
other members of the community with the same qualifications as Ms Wu from
applying for the position.

b. An assessment was not made of the relative suitability of the candidates to perform the
relevant duties, using a competitive selection process, because:

i. admission as a practitioner of the Supreme Court of a State or a Territory, or
the High Court of Australia is listed as essential for performance of the role,
but does not appear to have been considered as part of the selection process.

c. The assessment was not based on the relationship between the candidates’ work-related
qualities and the work-related qualities genuinely required to perform the relevant duties,
because:

i. admission as a practitioner of the Supreme Court of a State or a Territory, or
the High Court of Australia was listed as essential for performance of the role,
i.e. as a work-related quality genuinely required to perform the relevant duties.
Ms Wu did not have this work-related quality, and was selected over a field of
candidates all of whom did have this work-related quality.

d. The assessment did not focus on the relative capacity of the candidates to achieve outcomes
related to the relevant duties, because:

i. The position description notes that the position “requires the occupant to
perform statutory legal function, as required … therefore legal qualifications
and admission as a practitioner of the High Court or the Supreme Court of a
State or Territory … is essential”. Ms Wu was not admitted as a practitioner of
the Supreme Court of a State or Territory, or the High Court of Australia but
was selected over a field of candidates all of whom were admitted to practice
in the Supreme Court of a State or Territory, or the High Court of Australia.

I find that the APS Employment Principles were not followed in relation to the
recruitment process that led to the promotion of Ms Wu because either:

a. the role was incorrectly advertised as having an essential requirement, and this
potentially precluded eligible members of the community from applying for the
position; or

b. a candidate who did not meet an essential requirement of the role (and who was not
going to become eligible for some substantial period) was engaged over numerous
candidates who did meet this requirement.

I find that the relevant employment practices of the FCSA were therefore in contravention of
section 10A of the PS Act, and that disclosable conduct, within the meaning of item 1 of the
table in subsection 29(1) of the PID Act, has therefore been engaged in by
[MISSING INFORMATION] on the basis that the relevant employment practice in relation to the
engagement of Ms Wu was conducted in contravention of the PS Act, being a Commonwealth law."

The issue here is that one or more people must have been found by Ms Kate McMullan to have contravened the laws of the Commonwealth and, specifically, the content of section 10A of the Public Service Act 1999. You claim that there are no documents:

a) evidencing an invitation to Ms Andrea Jarratt to make submissions to Ms McMullan about the adverse findings against her;
b) evidencing an invitation to Mr David Pringle to make submissions to Ms McMullan about the adverse findings against him;
c) setting out written submission from Andrea Jarratt to Ms McMullan;
d) setting out written submission from David Pringle to Ms McMullan;
e) evidencing an invitation to Ms Andrea Jarratt for an interview with Ms McMullan in relation to the adverse findings against her;
f) evidencing an invitation to Mr David Pringle for an interview with Ms McMullan in relation to the adverse findings against him; and
g) containing records of interview involving either Ms Jarratt, or Mr Pringle, or both Mr Jarratt and Mr Pringle.

How could this be? How could Ms McMullan not have prepared such documents? Are you suggesting that Ms McMullan failed to provide procedural fairness to Ms Jarratt and to Mr Pringle? Did Ms McMullan refuse to hold Ms Jarratt and Mr Pringle culpable for their decisions? If so, how could she? Would that not be corruption? Would that not be an instance of an acting assistant commissioner of the APSC trying to protect two senior public servants in the Federal Court of Australia? What of the APSC's claims to being "a central agency within the Australian Public Service with a critical leadership role in contributing to the future capability and sustainability of the Service", and ensuring "that the APS is performing effectively and consistently with the APS Values"?

Just what kind of an investigation did Ms McMullan conduct?

As each day passes, it becomes clearer and clearer that the journalists at The Australian received a valid external disclosure under the Public Interest Disclosure Act 2013 because the investigation conducted by Ms McMullan was grossly inadequate.

I will give the APSC another opportunity to search for the documents.

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

Yours faithfully,

Mircea

FOI, Australian Public Service Commission

5 Attachments

OFFICIAL

Dear Applicant

 

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

 

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

 

Regards,

 

FOI OFFICER

Legal Services

 

Australian Public Service Commission

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

 

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

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

 

 

 

 

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

 

 

 

 

 

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FOI, Australian Public Service Commission

7 Attachments

OFFICIAL

Dear Applicant

 

Please find attached a decision notice.

 

Regards,

 

FOI OFFICER

Legal Services

 

Australian Public Service Commission

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

 

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

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

 

 

 

 

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

 

 

 

 

 

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