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Friday, May 10, 2013

Too much tugging over who ministers meet

Queensland is soon to publish lobbying contacts.  

And Queensland Premier Campbell Newman and his Cabinet Ministers already publicly release information about portfolio related meetings and activities from their diaries. Not as fulsome as some might wish but a far sight better than other Australian jurisdictions. No other publishes lobbying contact information. Only one publishes the government leader's diary but the Prime Minister's Public Schedule lists media and public engagements and little else. 

In Canberra, as Anne Davies of Fairfax Media can attest, and Sean Parnell of The Australian knows from experience, and in the other states, access to ministerial diaries is still a freedom of information tug of war. In each case access decisions turn on facts, often the legislative prescription for a minister's document and relevant exemptions. In this day and age it's way short of the standard we should expect, the UK providing one good practice example.


1904 Olympics{PD-US}
 Back to the tug of war.

The Full Court of the Supreme Court of Victoria in Office of the Premier v Herald and Weekly Times Pty Ltd [2013] VSCA 79 recently ruled that the electronic "private diary" of the then Victorian Premier's Chief of Staff was an 'official document of a Minister' and was subject to legally enforceable public rights of access under the Freedom of Information Act 1982 (Vic).

That was a threshold question. The HWT applied in November 2011 for access to the diary entries for the period 1February 2011 to 28 February 2011. It's not over yet despite having won on preliminary points in both VCAT and the Supreme Court. It's back to the Office of the Premier (neither the premier nor the chief of staff involved are there any longer) to decide "whether any exemptions are applicable and also whether any irrelevant or exempt material can be deleted so that the OTP can grant access to the HWT to a redacted copy of the diary' [86]. Oh dear, patience where are you?

The Court upheld the decision of the Victorian Civil and Administrative Tribunal although on three points of construction of the act it took a different view: the diary was a single document not a series of separate documents each containing one entry [52-55]; a document held by a minister is subject to the act only if it is in the actual or constructive possession of a Minister in his or her capacity as a Minister [56-67]; and the words ‘relates to the affairs of an agency’ in the definition of official document of a Minister or official document of the Minister in Section 5 of the act should be interpreted more narrowly. 

On this point Judge Tate (Whelan JJA and Kaye AJA concurring) said:
77 However, I consider that the Tribunal was wrong to construe the phrase ‘relates to the affairs of an agency’ as ‘includ[ing] anything that could be considered the business of government or the exercise by a Minister of his or Ministerial functions’.[79] In my opinion, the phrase is clearly restricted to the business of those entities that fall within the definition of ‘agencies’ and not more generally to the business of government. Moreover, it is restricted to the ‘affairs’ of an agency which must include at least the business and activities of the agency. In addition ‘affairs’ must include an agency’s ‘concerns’ in the sense of the area of governmental responsibility the agency is designed to discharge, or the area of government policy it is designed to implement, in keeping with its function of supporting the Minister with respect to a ministerial portfolio.
78 While the word ‘operations’ does not appear in the phrase there is nothing to preclude the ‘affairs of an agency’ from including its operations, but there is also nothing to support restricting those operations to internal operations. Indeed, the submission ultimately made by the OTP, that a document which relates to the ‘affairs of an agency’ must be one that ‘require[s] the document to relate to acts or actions being done by or within an agency’, to my mind, would extend to the external operations of an agency. In particular, the ‘affairs of an agency’ would include actions taken, including meetings arranged, between an officer of a government department, or other agency, and an external entity (regardless of whether the external entity was also an agency). Such an arrangement is an action taken by the agency. Arrangements made between, on the one hand, officers of a government department, or other agency, and, on the other hand, a ministerial adviser from an external entity, including the OTP, are included within the ‘affairs of an agency’. Documents that bear a direct or indirect relationship to those arrangements are thus included within the documents that ‘relate to the affairs of an agency’.
79 In summary, a document ‘relates to the affairs of an agency’, and thus falls within the second limb of the definition of an ‘official document of a Minister’, if it bears a direct or indirect relationship to the business and activities of an agency, or the agency’s area of governmental responsibility, or to arrangements between government departments or other agencies and external entities, including arrangements between agencies and Ministerial advisers from the Office of the Premier.
As I commented previously argy-bargy on this question would be less if something along the lines of the NSW GIPA act formula was adopted in Victoria and elsewhere (emphasis added):
A reference in this Act to government information held by an agency is, when the agency is a Minister, a reference to government information held by the Minister in the course of the exercise of official functions in, or for any official purpose of, or for the official use of, the office of Minister of the Crown.
  
Overall though, on who ministers meet, way too much argy-bargy.

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