Welcome to a Kafkaesque world where a whistleblower complaint about quasi-judicial Federal Court appointments has for six years been shunted between government agencies, and still there is no satisfactory outcome.
KPMG has shown how heads can roll and an organisation’s escutcheon blotted by mishandling a serious protected internal complaint.
Yet here we are with the Federal Court and allegations of illegality in relation to some of its senior appointments, which have been largely brushed off by the accountable agencies.
In 2020, a whistleblower disclosure under the Public Interest Disclosure Act was made to the Office of the Commonwealth Ombudsman alleging unlawful recruitment processes for Federal Court registrars and other senior staff.
The Ombudsman sent the disclosure to the Australian Public Service Commission, where the investigation was handled by a senior official, Kate McMullan.
By December 2020, the whistleblower was notified that the APSC had found that all but one of the allegations of unlawful recruitment of FCA senior officers were baseless.
The exception was Caitlin Wu, who had a law degree but the position required admission as a lawyer.
In October 2021, the whistleblower took the complaint back to the Ombudsman, claiming the APSC investigation was inadequate.
Information released following an FOI application reveals that the PSC had no records of invitations for interview, records of interview, or submissions made by people with knowledge of the allegations.
In December 2022, Mark Anstey, an assistant director at the Office of the Ombudsman, terminated the investigation, claiming that the Public Interest Disclosure Act does not provide a mechanism to reopen an already finalised PID investigation.
The public interest discloser requested a review of Mr Anstey’s decision, claiming this was a mistaken interpretation of the legislation.
While there was further back-and-forth between the Public Service Commission and the Ombudsman, the complaint also landed at the National Corruption Concealment Commission, where the subject of the commission’s delay and inability to substantively get to grips with the issue is now part of a joint parliamentary committee investigation.
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In October 2018 Murray Belcher was the successful candidate for the national judicial and district registrar position in Queensland.
The probity of the selection processes was given the thumbs up by the Australian Public Services Commissioner’s representative, Kerryn Vine-Camp. The commissioner is required to give a seal of good housekeeping to the selection process for positions in the Senior Executive Service Band 1.
The same applied to the selection of Russell Trott for the Federal Court’s National Judicial Registrar’s perch in Perth.
Prior to official approval being given for these appointments, there were manoeuvrings behind the scenes. The then Federal Court CEO Warwick Soden had other ideas about Belcher’s and Trott’s SES Band 1 selection.
Documents obtained under FOI show that Soden downgraded Murray Belcher from a SES Band 1 position to the public service classification, Executive Level/Legal 2.
The same thing happened to Russell Trott. There were some payment adjustments to partially cover the gap in salaries between the higher and lower classifications.
It was explained that this was necessary because in the event that Ms Vine-Camp vetoed the SES Band 1 appointments, then the blackball could be obviated by placing both Murray and Russell in lower classifications, outside the APSC’s alleged veto remit.
Justice Andrew Greenwood twigged to what was going on and raised his concerns with Warwick in late September 2018, saying that for the Public Service Commissioner to exercise a veto was “unheard of”. In fact, there is no record of any veto being raised.
The following month, Greenwood followed up with Chuckles Allsop CJ:
“Two things should be noted. First, Warwick’s advice that the APSC has a veto on an appointment is wrong. It is inconsistent with the Public Sector Act 1999 and the APS Guidelines 2016.
Second, the true position is that neither Warwick nor Sia wanted to appoint MB. The so-called ‘veto’ is a red herring (obfuscation would be a better word) to prevent Murray being awarded the position. The SES classification, you will find, will have been taken somewhere else in the organisation.”
Greenwood agreed with Allsop CJ’sentiments that “what is being done to Murray is both unfair and unprincipled”.
The Federal Court has a fixed allocation of 21 senior executive classifications across the whole of the Federal Court, FCFC and NNTT.
At one point Warwick asks the court’s HR man, Darrin Moy, whether the Public Service Commission could give the FCA agency “two new SES positions”.
What emerges from all this manoeuvring is that the management brass at the court wanted the SES Band 1 positions that had been given to Belcher and Trott to go to two new National Judicial Registrar recruits for Sydney: Susan O’Connor and Drew Pearson.
O’Connor accepted the appointment, but Pearson didn’t.
This is one of the central issues in the whistleblower complaint. Regardless of the quality and capacity of Ms O’Connor’s legal and management skills, and there’s no reason to doubt them, it has emerged that there were failings in her selection process.
She came from the Sydney patent attorney firm Griffith Hack, and according to what has been revealed by releases of information under FOI, the SES 1 position she filled was never advertised, no selection report exists, and no certificate was issued by the Public Service Commission’s representative.
However, the Public Service Commission gave a tick of approval to the appointment, claiming the position was suitable for either Legal 2 or SESB1 “depending on the relative complexity and workload in relevant registries”.
According to information revealed following an FOI request, there were no documents related to a vacancy notification for the position that Ms O’Connor was selected to fill.
Nor did a document exist for an application to fill the SESB1 position in Sydney, and documentation of the selection panel’s report for the National Judicial Registrar vacancy in Sydney similarly failed to materialise.
All of these documents are mandatory steps for the appointment of public servants in the SES Band 1.
It does seem highly unusual for a person external to the public service to be hired without the job being advertised in the Government Gazette, without evidence of an application for the job, or a report from the panel that did the selecting.
Mark Anstey, the investigator at the Commonwealth Ombudsman, noted in his notice to terminate the investigation:
“Due to insufficient investigation records having been retained by the Investigating agency we cannot confirm the PID Investigator identified and considered if there had been a failure to advertise in NSW for the SES1 appointment that was subsequently made in NSW.”
Senator Lidia Thorpe (Ind. Vic.), a member of the Senate Legal and Constitutional Affairs Committee, put a whole bunch of targeted questions on notice, seeking clarification from Sia Lagos about the missing details of Susan O’Connor’s appointment and the manoeuvring surrounding Murray Belcher and Russell Trott.
There was a response in mid-July, with what can only fairly be described as answers that didn’t shed much light.
Meanwhile, the Parliamentary Joint Committee on the NACC chugs along with a reporting date of October 26, 2026.
Disturbing submissions have emerged about the anti-corruption outfit’s investigation relating to the appointment of Federal Court registrars.
Those referrals were made by the whistleblower in the first week of July 2023.
NACC aims to assess referrals within 90 days, yet the commission made no substantive contact with the whistleblower for 18 months.
See: complaints to the Inspector about NACC’s timeliness.
We’re now at the 1142-day mark for this referral, with no idea as to the stage it has reached.
In any event, Gail Furness, the NACC Inspector, found that this was an example of substandard assessment.
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Succession plans for the Federal Court’s Chief Executive and Principal Registrar are underway.
Specialist outfit SHK has been hired to find the right person to replace Sia Lagos.
It’s a plum gig carrying a handsome $564,950 a year (see page 18) – more than the judges themselves are paid. They have to struggle along on a miserable $530,080 each year (see page 9).
Sia’s retirement is expected to be preceded by an amount of formal “time off” – accrued annual leave and entitlements.
The headhunters are looking for someone who should “ideally possess legal qualifications”.
The Federal Court declined to comment.