“The CEO should have consulted with those Justices and then terminated the appointment on the grounds that the process had miscarried.” Legal columnist HUGH SELBY exposes some procedural funny business at the Federal Court of Australia, the circumstances of which he describes as “highly irregular and an embarrassment to the court”.

Earlier this year Michael Murphy, NT Police Commissioner, was dismissed because he had appointed a mate to a senior role in the NT Police. 

There was no suggestion that the mate was not qualified for the role. Mr Murphy’s ostensible, sackable sin was that he had “mismanaged a conflict of interest”. 

Critically for what follows in this article the reasons included: “(Mr Murphy) verbally declared to the other (selection) panel members that there was a friendship, however (sic) did not provide any particulars of the extent of the relationship. (He) also acted as a referee for the candidate in the recruitment process. One of the other panel members acted as a second referee.

“Given the particular circumstances of this matter, (he) failed to manage the conflict of interest and ought to have recused (him)self from the recruitment process. 

“While it may not be improper per se, to act as a referee as well as a panel member, nevertheless doing so has the potential to cause conflicts of interest and can lead to perceptions of bias in the recruitment process…”

To grasp that his “mismanagement” was at the lower end of these sorts of appointment problems, consider how truly serious it would have been if the circumstances were that Mr Murphy had not provided a reference, and did not disclose his friendship with the applicant to the second member (an outsider) of the selection panel, having told the third member (his subordinate) that the mate was to be appointed. 

I am sorry for Mr Murphy. I suspect that by dint of experiences during his long police career he had learned that having trusted colleagues in his immediate team was essential to do the job well. 

I can attest to the capacity of ambitious police to be treacherous to their own. Mr Murphy had a professional colleague, trusted through friendship, and – in his view – well suited for the role. That would have been a relief.

He disclosed that friendship to the other selection panel members. If they wanted more information from him they could have asked.

It’s easy to assert that he should not have been on the selection panel, but that begs the question of how was he to ensure that he got the team that he wanted and needed? 

Those who claim that the “merits” of an applicant to fill an advertised job trump any considerations of an organisation’s dynamics are naïve.

The lesson from his sad experience (and it is truly ironic that his career was ended by a politician from a party where factional allegiance, not merit, determines advancement) is that public service recruitment needs to have procedures that are not one-size-fits-all, but which anticipate circumstances where the unusual is required. 

For example, that certain senior positions be filled only by non-renewable temporary appointments, or that a selection panel has a non-voting ”observer” to ensure proper process where one or more members have “specific” goals that might be seen to sideline fair play.

It may even be necessary, on occasion, to write into the job specifications that an appointment will not be made if the Head forms the view that the “best on paper and interview” applicant is not a good fit.

NT ICAC quotes a former South Australian Commissioner Against Corruption who observed: “The power to recruit someone to a public position, with a salary and other benefits the position confers, is a duty not to be underestimated. 

“When recruitments and other appointments are undermined by nepotism, favouritism or cronyism, the public loses confidence in the integrity of those doing the recruiting. The merit and calibre of those appointments, and ultimately the quality of government services, can also come under question.”

Those incisive observations are central to the critique advanced in this article which is all about certain Registrar appointments (it’s a senior administrative role) in the Federal Court of Australia.

Based on a document trail, there appears to have been a flagrant disregard for the proper selection processes. Sadly, and again relying on a paper trail, those who should have cleaned up the mess and called to account those who caused it seem not to have done so. 

A conflict of interest that matters

If any of us make a decision to our advantage then it is likely that someone else is losing out.

That loser, and any third party observer, is entitled to ask: “Was your decision required to be fair in particular or all respects? If so, was the decision influenced by some factor that was unfair to the loser?”

Mr Murphy desired the “advantage” of his mate being appointed. That entailed, absent proper corrective processes, that other applicants were unfairly disadvantaged. 

Mr Murphy’s overriding task was to select, on the merits, the best candidate  To the extent that he had a prior preference for his mate he had a conflict of interest between the objective selection task and his subjective preference for his mate.

There has been no suggestion that Mr Murphy ignored any of the job criteria in his appraisal of the job applicants.

Had he done so then the reasons for his dismissal would have been much stronger.

Simply put there is a hierarchy in appointment mismanagement:

• Declaring a preference or an interest in a selection process is necessary, but not sufficient to ensure fair process to all applicants;
• Not declaring an interest, or declaring it to only part of the panel, is a serious breach of selection protocols, possibly so serious as to be corrupt;
• Recommending the appointment of an applicant known not to have a necessary qualification is incompetence, corrupt or both;
• Having a strong, positive connection to an applicant, knowing that they are unqualified, but securing their appointment is scandalous; and,
• Failing to inquire and then, if necessary, remedy the results of such an improper appointment, when on notice that it has probably occurred, is a matter for the NACC.

Being a court Registrar

Multiple positions at the Registrar level were advertised in the Federal Court some years ago. It’s an executive-level position and there were a good number of applicants.

Each and every one of them was entitled to expect that their application would be assessed against the advertised criteria and that those criteria would apply equally to all. 

One of the requirements was that an applicant was “admitted as a legal practitioner”. That requires that the person has completed both the academic and practical training requirements.

Admission to practice as a legal practitioner is by way of a court ceremony which includes the taking of an oath to “well and honestly conduct myself in the practice of law as a lawyer”. Oaths matter. If they didn’t then we would dispense with them.

Following that ceremony the new practitioner “signs the roll” and is thereafter within the jurisdiction of the courts/disciplinary tribunal to be held accountable for any unsatisfactory conduct.  

Following admission, the new lawyer works under the close supervision of an experienced lawyer. In private practice that is typically for a period of two years.

That two-year period reflects the reality that the prior academic and practical training is nothing more than the bare foundation to become, over some years, a competent lawyer. 

For that practical reason it is common to see lawyer job vacancies that require a stated minimum number of years of full-time practice experience.

It seems that the Registrar job advertisements did not contain any such minimum years of experience. However, it did say, as the first of the selection criteria, “Experience in litigation and case management in superior courts of Australia.

“Experience in litigation” is crystal clear: it means the work that is required to prepare and run cases in courts and tribunals. It is not an armchair exercise, nor is it one that can be acquired by reading a text. What’s more, the reference to “superior courts” means that applicants need to be familiar with how to run cases in a Supreme Court. Experience at the District/County court or Magistrates/Local Court didn’t cut it.

Good Registrars are vital to court efficiency. They know and understand all the rules of court (nowadays hundreds of pages) and the reasons for practice notes (instructions from the judges to the profession on how certain matters are to be handled). They are the entrance door and the filter to minimise the inevitable errors of commission and omission that are made in the management of documents that are filed by all parties in litigation. 

Acquiring that knowledge and being able both to apply it and explain it to staff and errant lawyers is a skill that takes years, not months, to acquire.

For many litigation lawyers who do not have the advantage of good employer supervision (far too many) the helpful words of advice from a diplomatic but no-nonsense Registrar or Deputy Registrar are what saves them from public humiliation in the courtroom. I know that from experience as one of those lawyers. 

It is also important to know that Registrars perform limited, judicial-like functions. These are prescribed in the legislation. 

For the purposes of this article the following subsection is important. Section 35A(1)(c) permits the court to empower a Registrar, “to make orders in relation to discovery, inspection and production of documents in the possession, power or custody of a party to proceedings in the Court or of any other person”.

For that reason a Registrar – but only when duly appointed – can run the “return of subpoena” list, which is where lawyers for opposing parties argue about what records or parts of records in their client’s possession must be shown to the other side.

Keep in mind that the section does not permit a Registrar to then delegate that power to someone else. A person with a delegated power can only further delegate it when there is an express power to do so.

Equipped with this background about “conflict of interest” and aspects of a court Registrar’s job, you too can now be gobsmacked by what apparently took place in the Federal Court and thereafter in the Australian Public Service Commission (APSC) and the Ombudsman office.

The Registrar appointment process

A number of Registrar jobs were filled during this employment process. The following criticisms are made in only one case and then only of what happened. 

In particular, neither you nor I have any evidence of the motives of the actors, why they did or didn’t do any act, their past performance, or their performance from then until now.

Actual names have been replaced with “colours”. This is done to maintain the focus on the acts, not the actors.

Mr White was the line supervisor of Mr Red, one of his referees and on the selection committee. 

Mr White was later promoted. (He is not in the current personnel listing.) Mr Red, as of last month, worked as a National Registrar, doubtless now very experienced.

Mr Red was working in the Court while completing his law degree and practical training. At the time of his Registrar appointment he was not an admitted legal practitioner.

We learn from Mr Red’s application that while not admitted to practice he, “was delegated responsibility over the set aside bankruptcy and objection to subpoena list”, a statement then repeated on the following page as, “I was tasked with managing the Return of Subpoena list each week” 

It was the following year, that is following his appointment which in turn was followed by his admission to practice as a legal practitioner, that Mr Red was first authorised by the Chief Justice to exercise limited judicial functions as an appointed Registrar. 

Such powers are not retrospective, nor can they be given to a person not admitted to practice as a legal practitioner.

That Mr Red was permitted to run those two lists while unqualified is breathtaking. It requires investigation, if only to ensure that it does not happen again.

Returning to the issue of his appointment, if senior management was determined to appoint Mr Red to the role of Registrar then:

• Mr White should have removed himself from all deliberations;
• The appointment of Mr Red should not have been notified until after he was admitted as a legal practitioner;
• Mr Red should not have been offered a contract before he was admitted to practice, and before his appointment was announced;
• The Chief Justice of the Federal Court (and the Chief Judge of the Federal Circuit Court) should have been consulted, prior to his appointment, about the propriety and look of appointing someone with so little experience to such an important practical legal role.
• The Chief Justice and Chief Judge should have been advised that Mr Red had been exercising powers that he did not have by dint of no instrument of appointment, and no admission to practice.

Why this matters

I suspect that, in the circumstances as they played out, the CEO should have consulted with those Justices and then terminated the appointment on the grounds that the process had miscarried.

The CEO has a power to terminate under the Public Service Act, section 29. However, a reading of that section shows that its drafters did not have these unusual circumstances in mind. It would have been necessary to go to judge-made law to find the grounds to terminate. 

In my view, if the CEO did not know what options s/he had when notified of what had happened (ie. the irregular and wrongful appointment of Mr Red) then s/he should have sought advice from the AGS and/or the APSC.

Even if the CEO did know what s/he should do then it would have been wise to have sought such arms-length advice, the circumstances of Mr Red’s appointment (and before it) being both highly irregular and an embarrassment to the court.

Sadly, there is no report of any such internal action being taken. Instead, much time (several years) has been wasted with efforts to fix and/or suppress the problem by other means. 

A complaint was made to the APSC whose inquirer found that Mr Red’s appointment was okay.

Unless the APSC inquirer sought independent legal advice from experienced litigators (such as a respected senior counsel at the private bar with a busy Superior Court litigation practice) then she was wasting her time – and everybody else’s – from the outset.

Unless she knew and understood the reason for the mandatory requirement of admission to practice and proven experience, then she could never grasp the problem or its enormity: to wit that senior people in the Court admin had behaved improperly by appointing, in defiance of the selection criteria, a newbie to a role that requires long experience.

Pointing to the fact that Mr Red was soon admitted and that’s okay (as the inquirer did) shows a basic lack of knowledge of the requirements of the job.

The problem is not the admission date. The problems are that, given his little experience, his not being admitted to practice and the number of applicants, it is inconceivable that he was the best qualified for the job.

Thereafter, a complaint was made about the APSC decision to the Ombudsman. It took that office over a year to decide that it could not take any action that would cause an agency (such as the APSC) to reinvestigate a public interest disclosure. Whether that finding is right or wrong, there can be no argument that to take over a year to reach it is too long by half.

All up, this saga shows the uselessness of review mechanisms that are not performed by people with the relevant backgrounds/skill set. We have the look of “independent review”, but the reality of a waste of time, money and expectations.

For those who still wonder why an article such as this is necessary: the transparency and accountability on which the APS prides itself failed to prevent or deal with malpractice within the Federal Court.

If any lesson was learned it was that these practices have no downside for those who engage in them.

That makes me all the sorrier for now former NT Police Commissioner Murphy. The public might think that he committed a strict liability sackable offence.

He didn’t. The proof of that is the Federal Court outcomes: no consequences (other than promotion) for those who, on the available papers, ran a process much more egregious than his actions.

However, he did make a serious error: to not appreciate in good time that his enemies were at work, waiting for the chance, any chance.

Recalling the words of the decision maker from NT ICAC at the start of this article there are, apart from the Court and the community, two unequal victims from this saga: the unknown person with the requisite qualifications and experience who should have been appointed to the job, and Mr Red whose career path has been tainted by the acts of others.

Mr Murphy has moved on, which leaves the problem of clarifying for good and all what happened in the Federal Court and why. It may be that there are other documents that demonstrate that the matters set out in this article have been resolved in a manner that prevents any repetition.

If so, marvellous. If not, then this is a matter for the NACC using its public hearing powers.

Postscript

I was alerted to the key facts and issues in this story by an anonymous reader who was rightly alarmed that the appointment mismanagement in the Federal Court had gone unchecked. That reader is adept, persistent and patient with following paper trails. They have an eye for detail. Without those skills this article could not have been written. I thank them.

Former barrister Hugh Selby is a CityNews columnist, principally focused on legal affairs. His free podcasts on “Witness Essentials” and “Advocacy in court: preparation and performance” can be heard on the best known podcast sites.