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.

Queensland lobbying rules require public disclosure of contacts

Lobbying rules have proved problematic for the Newman government in Queensland with two ministers resigning during the first 12 months over inappropriate contact and disclosure failings.

But Queensland can take a bow when it comes to scope, reporting of lobbying activity and transparency as a result of changes that took effect from 1 May 2013. Changes to the rules extend regulated lobbying activity beyond ministers and public officials to lobbying the Leader and Deputy Leader of the Opposition and staff; and require monthly reports to the Integrity Commissioner by registered lobbyists detailing lobbying activity including the client, lobbying contacts and the general purpose of the contact, and importantly, the publication of this information on the commissioner's website.

Not the proactive publication of details like we see in the UK Who Ministers are Meeting 
but a stark contrast to other Australian jurisdictions where registration and observance of a code of conduct is all that is required.

A Queensland parliamentary committee, while not happy that both client name and purpose of the meeting are to be published, has recommended extending the scheme to include paid in-house lobbyists of both corporations and associations, and a comprehensive review of the Integrity Act.

The changes this week flow from the Right to Information and Integrity (Openness and Transparency) Amendment Act 2012.

"From next year, Queenslanders will have the most open, accountable and transparent government ever seen across this nation"

So sayeth Attorney General Bleijie in Parliament on 27 November in introducing the Right to Information and Integrity (Openness and Transparency) Amendment Bill 2012. The bill passed on an urgency motion (debate on the bill itself is in the Hansard 29 November at 3012), received assent yesterday 11 December (Act 45/12) and will commence on a date to be proclaimed.

The changes relate to the RTI act disclosure logs and the the Integrity Act - the latter regarding lobbying, with an Australian first in extending the scope to parliamentary opposition leaders, and requiring lobbyists to keep records of contacts and provide information to the Integrity Commissioner.

The legislation was so urgent apparently that as the Explanatory Note ( see under Right to information.....) states:

 "The community has not been consulted on the Bill. The Acting Information Commissioner was provided with a draft of the amendments to the Right to Information Act 2009 . The Integrity Commissioner was consulted, and provided input into, the proposed amendments to the Integrity Act 2009." 

(I can see a difference in wording here that may be significant.)

Leaving the "best ever" claim to one side - and Opposition leader Palaszczuk claimed the bill weakens the existing integrity laws - journalists and media organisations will be disappointed. I've heard some are pushing the Hawke review in Canberra arguing for five days for exclusive use of documents released in response to a Commonwealth Freedom of Information request. Queensland where they have had up to now at least 24 hours before released information is posted on the disclosure log is cited as a less than perfect precedent.

I guess there have been "I'm mad as hell" shouts in light of the fact that the Queensland 24 hour exclusive period has been scotched as a result of the amendments. This provision in the repealed s 78 "However, nothing about the document (including a copy of the document) may be put on a disclosure log until at least 24 hours after the applicant accesses the document" isn't in the substituted section 78, 78A and 78B The new formulation is to post released documents on the log "as soon as practicable" after release to the applicant.

Rumbling in media circles won't be limited to the lack of opportunity to defend the 24 hours period or argue for longer. Another aspect of the new system likely to give rise to media angst is that details of what information is sought are to be posted on the log as soon as practicable after a valid application has been received by an agency and before any decision on release has been made. 

Here are the relevant extracts from the Explanatory Note (emphasis added)

Paper pile of polly perks Strike Two

Today's Fairfax revelations from that joint project to shine some light on gifts and hospitality given to federal parliamentarians include that 70 have failed to disclose complimentary premium Foxtel or Austar packages to their electorate offices from the Australian Subscription Television and Radio Association (ASTRA), and only 32 disclosed a gift by Commercial Radio Australia of digital radios given to all 226. Micro detail perhaps, but nice to see the UTS journalism students involved take a bow today: Lawrence Bull, Nathan Coates, Paolo Hooke, Frances Mao, Lillian Radulova and Nina Young.

(Update In the Senate on 12 September Senator Faulkner drew attention to a number of errors in the published version of his declaration of interests some of which were said to be errors in transcription and others false entries.)

Those non-disclosures sit alongside yesterday's reports of declared gifts previously hidden in piles of handwritten paper, as summarised in The Age that Israel and Israeli lobby groups wooed politicians with 44 fully or partly funded trips in the past two years, followed by Taiwan (16 trips) and the Tibetan government-in-exile (five). Courtesy of Qantas the leading corporate ''benefactor''

all 226  enjoy free membership of the Chairman's Lounge and Qantas has provided more than 200 free flight upgrades - of 289 recorded in total - worth hundreds of thousands of dollars. Gina Rinehart's Hancock Prospecting was the second-biggest provider of trips at a time when the mining tax was a hot issue. Billionaire Andrew Forrest's Fortescue Metals Group is another ''generous'' miner. Technology company Huawei, which was excluded from National Broadband Network tendering because of security concerns, has taken Coalition frontbenchers Julie Bishop, Andrew Robb and Bronwyn Bishop on tours to China. Two members of a Senate committee considering a white paper that will determine billions in defence spending, Mark Bishop and David Johnston, accepted a charter flight from England and accommodation from French shipbuilder DCNS to inspect its factory. As members of the parliamentary diabetes support group, Judi Moylan and Mal Washer accepted a trip to the World Diabetes Leadership Forum in Copenhagen paid by drug company Novo Nordisk.

In editorials today both The Age and the SMH remind our representatives of the standards we should expect of those in public life. As The Age in MPs should slam the door shut on influence peddling puts it:

Let's be clear about the conflicts of interest here. Were such benefits given to members of a company board, public committee or a councillor at the lowest tier of government, they would have to declare them and excuse themselves from decisions affecting the provider. MPs do not excuse themselves from parliamentary debates, committee deliberations and votes, so must observe a higher standard. They ought not accept travel, accommodation or gifts that create a risk, real or perceived, of compromising their decisions as public representatives. If the givers' intentions are not to influence political decision-makers by undemocratic means, what other motive is there?

And apart from the probity issues, information about who gets to chew an influential ear about what is most times itself a matter of significant public interest but not something our laws require to be made public.

The Sydney Morning Herald in A shadow darkens on one side of the digital divide concludes on a theme familiar to readers here:

The Herald/UTS project should not, in truth, be necessary. Filling in documents of such public importance by hand, and submitting and publishing them only in that form, is no longer adequate. Indeed, it looks like a passive form of obstructionism. They should be filed online, and made available automatically for all to see.