Want to know how Bridget McKenzie and her office administered the $100m in sports grants that are at the centre of a major scandal? Beyond the great work done by the auditor general, it’s going to be hard to find out.
One of the side benefits of a ministerial reshuffle is that embarrassing documents generated in the minister’s former office get filed away in the national archives, beyond the reach of prying eyes.
Journalists can use freedom of information laws to ask departments and agencies such as Sports Australia for documents, which include emails, texts and even WhatsApp messages. But by all accounts the agency was cut out of the final decision making.
We could also ask the prime minister for documents because he remained prime minister after the election. But we cannot access emails or documents from McKenzie’s office when she was sports minister because she is now minister for agriculture, not sport.
And if she is relegated to the backbench before question time on Wednesday, Labor won’t be able to ask her any questions either.
This limitation of freedom of information laws is frustrating and illogical.
The Guardian sought to test the limits of the FOI laws late last year over the grasslands affair which embroiled two federal ministers, Angus Taylor and Josh Frydenberg.
Taylor, the former minister for cities (now energy and emissions reduction), has said he told the then environment minister (now treasurer), Frydenberg, of his personal and family interest in Jam Land, a company which is the subject of a compliance action by federal authorities for alleged illegal clearing of 30ha of native grasslands.
A brief recap: Taylor owns a shareholding in Jam Land via his family investment company Gufee, as does his brother Richard Taylor, who is a director of Jam Land. Taylor declared Gufee in his pecuniary interest register but not Jam Land, so to find out about Taylor’s interest requires company searches.
Last year Taylor’s shareholding became public when the Guardian revealed that in 2017 he had taken a particular interest in native grasslands laws that protect them because they are critically endangered. He was so concerned he asked Frydenberg for briefings from his bureaucrats.
Taylor insisted this had nothing to do with a compliance action launched a few weeks earlier on a Jam Land property and that his interest in the grasslands listing was piqued by an unnamed Yass farmer who raised concerns.
Bureaucrats, including compliance staff, attended a meeting with Taylor in March 2017. There are no notes.
In fact Taylor says he disclosed his family interest to Frydenberg before the meeting, though the bureaucrats told the Senate they were not told of it by either Taylor or Frydenberg.
“My obligation is to disclose to the parliament and to the prime minister,” Taylor said. “The minister, which was Josh Frydenberg at the time, was also aware, so there was no lack of disclosure and compliance on this.”
Frydenberg backed Taylor’s version of events the next day.
“I became aware when he asked me for a meeting,” Frydenberg told Patricia Karvelas on ABC Radio National.
“He was very upfront. And he said that there was a family company which was subject to a compliance issue. And that he had an indirect interest in that company. But he was seeking a meeting on the technical aspects of the listing and in those circumstances, as is appropriate, there would [not] be any discussion of the compliance issue.”
Given the sensitivity one would think there might be a record of this conversation, but under FOI we cannot gain access to any emails, notes or records of meetings where this disclosure might have been recorded because Frydenberg is no longer environment minister.
When the Guardian requested documents under FOI we were were told it was not a valid request.
“As this request seeks documents that relate to previous portfolio responsibilities, not to the treasurer’s portfolio responsibilities or the business or activities of his portfolio agencies, it is not a valid request under the FOI Act,” Frydenberg’s office said.
“A request for documents relating to a minister’s previous portfolio responsibilities is not a request for an ‘official document of a minister’.”
Taylor’s office said: “The FOI Act applies to documents of an agency and official documents of a minister. There is no right of access under the act to documents held by a parliamentarian in their capacity as a member of parliament.”
Taylor’s staff refused to elaborate, but the argument appears to be that if Taylor discussed grasslands with Frydenberg he did so as the member for Hume and not as a minister.
Therefore any documents, if they exist, are outside the scope of the FOI Act, which covers only “official documents of a minister”.
The Guardian will now appeal to the Australian information commissioner – but don’t hold your breath. The understaffed office is taking close to a year to assign a case officer to FOI appeals, let alone decide them.
Meanwhile, where have the records of former sports minister McKenzie and other former ministers gone?
Can we find out which MPs lobbied her in support of sporting clubs in their electorates? What did McKenzie say in reply? Were there instructions from the prime minister’s office about how she should administer the program? Did she keep Morrison informed?
Theoretically these ministerial records, including portfolio-related emails, tweets, WhatsApp messages, diaries, notes etc, must be sent to the national archives.
A spokesman for the archives said that when a minister leaves office after a change of government or resignation, ministerial records, ie records made or received in connection with the minister’s ministerial responsibilities, must be provided.
General Records Authority 38 (GRA38) says these include appointment diaries, final speeches and media statements, daily itinerary papers, official briefings, portfolio-related correspondence, subject files on portfolio business, official tweets and WhatsApp messages, and records of deliberations on official business.
The spokesman said most ministers do not usually lodge their papers directly with the national archives and they must not destroy, otherwise dispose of, or alter a record when leaving office.
Instead they usually send them to departments for safe keeping and review before they are deposited in the archives. Once delivered the Archives Act says they are generally not accessible for 20 years, and possibly longer if they raise security concerns.
As fascinating as the sports rorts and grasslands saga are, the public will no doubt have forgotten by then.
FOI clearly fails to provide the answers, which is why we need a federal integrity body with wide powers that can ask for documents, interview witnesses and make a call about whether an incident raises issues of ministerial conduct or something more serious.
Without it, a reshuffle provides a perfect escape from the sort of accountability that the public expect.