A government agency threatened a reporter and a newspaper editor with tens of thousands of dollars in fines unless they handed over notes and recordings, the Guardian & Tribune can reveal.
This agency also secretly recorded at least one politician – and sought to use excerpts of the tapes as evidence against him.
The relatively new watchdog demanded the journalists travel significant distances to provide statements it claimed would assist investigations into that politician.
It gave those journalists just days to comply with their demands and threatened legal action should they even discuss it with one another, let alone report the story.
Among notes and recordings demanded under threat of legal action were conversations the reporter and the editor had with the agency’s media advisor.
Those conversations related to the advisor’s bid to have the newspaper retract a story which referenced the agency.
Many Australians would never have heard of this agency. But although it does have an acronym for a name, it does not investigate matters of foreign espionage or domestic terrorism.
It is the Office of the Independent Assessor, or the OIA, and it deals with local politics by overseeing the conduct of councillors.
The Guardian & Tribune has the scoop on this story because the OIA has levelled the threats mentioned above – totalling more than $50,000 – against us.
Only by employing a legal team, appealing to the Human Rights Commission and taking the OIA to the Supreme Court did we force the watchdog to back down and put ourselves in a position to report this story.
The OIA was established in 2018 amid a raft of reforms aimed to clean up councils in Queensland.
Those reforms came after revelations of corruption and bad behaviour in local government, most notably those of Paul Pisasale.
The disgraced former Ipswich mayor was sentenced to seven-and-a-half years prison last year for 33 offences stemming from his time in office. They ranged from fraud to sexual assault.
But although it was conceived in the wake of high-level corruption, the OIA has been inundated with complaints of far more quotidian and, at times, trivial nature.
The story which triggered the OIA’s threats against the Guardian & Tribune was a very local yarn.
Under normal circumstances, it would have been of little interest to anyone outside the Scenic Rim and the Gold Coast.
But the actions of the state watchdog would ratchet this local yarn into a case with the potential to set a precedent to the public’s right to information and freedom of speech in Queensland.
This most recent stand-off between the watchdog and this newspaper began when a councillor was referred to the OIA for comments made in an article published on July 3.
The story was written by this journalist and aired both sides of a heated debate between the mayor of the Scenic Rim Regional Council, Greg Christensen, and the councillor representing Tamborine Mountain, Derek Swanborough.
Cr Swanborough is campaigning to have the mountain break away from the Scenic Rim and join the Gold Coast and it was one of the comments he made defending that position which landed him in the sights of the OIA.
“[Cr Swanborough] said he had spoken with the state’s Independent Assessor, Kathleen Florian, as well as senior policy makers within the Department of Local Government who assured him that he was well within rights to advocate shifting the administrative boundaries of his electorate,” the article read.
The following week a media advisor to the OIA, Nicole Butler, rang the journalist and asked him about that line.
The pair had a cordial working relationship and the media handler did not tell the reporter that the information she sought would later be used as evidence against Cr Swanborough.
After her questions Ms Butler then said the independent assessor, Ms Florian, refuted her reading of Cr Swanborough’s claim and asked for the story to be retracted.
The journalist responded that he would need to first ask the councillor if he felt he had been accurately reported in the article and, if so, whether he stood by his claim.
Mr Hinchliffe made several attempts to reach Cr Swanborough but could not contact him.
The OIA also tried to call the councillor without success and so, the following day, put out a media release purporting to “correct the record”.
The next day the media handler continued to push for a retraction. This time, the councillor answered his phone.
When the journalist and the councillor spoke on July 9, Cr Swanborough stood by what he had previously said. He then elaborated about the meeting he had with Ms Florian when the pair discussed his campaign to change the administrative boundary over his electorate.
In that meeting Cr Swanborough said he gave Ms Florian an update on his campaign and when she made no comment about its appropriateness or otherwise, he understood this as implicit assurance that, in the eyes of the OIA, his actions were above board.
It was a version of events repeated in the Beaudesert Times, which has no affiliation with this newspaper.
Referring to his meeting with the independent assessor, Cr Swanborough is quoted in that paper as saying: “I formed the impression expressed in the [Guardian & Tribune] that due to the cordial discussion and questions asking about the progress of the plebiscite that there was at least an understanding that this was a lawful process defined in the Local Government Act.”
“That was my strong viewpoint when I left the meeting,” Cr Swanborough said in the Times.
"I also advised the Independent Assessor that I had spoken to the Department of Local Government senior policy officer who advised I was within my rights to conduct a private plebiscite on the issue and offered me advice. “
"There was no disagreement. In essence, I was self-referring my conduct to the OIA personally and informally and received no advice or indication it was unlawful, or inappropriate in any way.”
"This seems also to accord with the Independent Assessors press release that alleges to correct the record, saying that she had no opinion on the matter."
In light of his conversation with Cr Swanborough, Mr Hinchliffe advised Ms Butler that the newspaper’s stance on the matter would have to be determined by its editor, Drew Creighton.
Events were about to take a consequential turn.
On July 9, Mr Creighton advised Ms Butler that he would need to speak to Cr Swanborough before considering a retraction which would, in effect, call him a liar.
Before he managed to do so, he received a follow up call from Ms Butler in which she claimed the OIA had spoken to the councillor and that he had provided his consent to correct the record
But when the editor called him, Cr Swanborough flatly denied having made such an agreement.
Mr Creighton then advised Ms Butler that he no longer had confidence in the word of the OIA on the subject and did not intend to take any further action on the matter.
The OIA, however, did not consider the case settled.
On Friday July 23, the reporter and the editor received a call and an email from the OIA’s principal investigator, Nicholas Finn.
Contained in his emails were a series of notices “issued pursuant to the Local Government Act 2009”.
The notices claimed that Mr Finn held “a reasonable belief” that the pair had “information that is reasonably necessary for me to investigate the conduct of a councillor”.
The investigator “required” he be given “any notes, recordings or other record whether electronic, handwritten or in any other form, concerning the conversations that you had with Derek Swanborough” in relation to the story.
He also “required” the same of conversations held with Ms Butler – after the story had been published.
If those notes were not handed over by that Wednesday, Mr Finn’s email warned the reporter and his editor they would be “committing an offence under section 150CI of the Act, punishable by a penalty of up to 50 penalty units”, or $6,892.
The pair faced another fine of $6,892 each if they did not travel to the Brisbane office of the OIA the following Friday to “answer questions during a meeting”.
Both Mr Creighton and Mr Hinchliffe live in the Boonah area, more than one hour’s drive from the capital.
Also attached in the emails was a confidentiality notice issued by the Independent Assessor herself, Kathleen Florian, warning the two men they faced $11,717 in fines if they did not keep quiet about the demands made of them by her investigator.
The OIA, it seemed, had learned from its encounters with the Guardian & Tribune.
Because this was not the first time it had demanded notes from one of our reporters.
The last time the OIA demanded to see the reporting notes of the Guardian & Tribune was with a different journalist but involved an interview with the same councillor.
Brian Bennion wrote an article published in December last year in which Cr Swanborough accused his council of using the conduct complaints system to “gag debate”.
The article was reporting that the OIA had dismissed a complaint made to them against Cr Swanborough for comments he made in the council chambers.
Cr Swanborough was opposing the permanent scrapping of public committee meetings which he said would make the council less open and transparent.
These comments, the complainant alleged, were “an attempt to make mischief and confuse the community as well as the media”.
The councillor told the journalist it was the 16th complaint made against him, something he described as a desperate attempt at silencing him.
“I welcome the day when I can tell all of my residents on Tamborine Mountain what these complaints are and how they were decided,” he said.
“I think they will judge the complainants very harshly.”
But these comments triggered yet another complaint to the OIA and the journalist who reported them soon fielded a call from its investigator, Mr Finn.
Mr Finn asked Mr Bennion if the councillor had mentioned any names when talking about the complainants.
The journalist replied that the councillor did not, and that everything said on the matter had been published in his article.
Mr Finn requested Mr Bennion’s notes to confirm this for himself but the journalist refused.
The investigator responded that if Mr Bennion did not hand over his notes and recordings they could be subpoenaed by a court of law.
When the journalist said he might write a story about the OIA's handling of frivolous and vexatious complaints, the investigator backed down. He later decided to drop the complaint entirely.
But when Mr Finn came calling again last month, he put the newspaper in a more precarious position.
Because this time, due to the confidentiality notice, the Guardian & Tribune could not report what the OIA was up to without risking significant fines.
The newspaper would either have to silently comply with the demands, pay tens of thousands of dollars in fines, or take legal action.
For someone who is not a journalist, it might be hard to understand why a newspaper would choose not to hand over any material under such circumstances.
But consider the implications if we had. Imagine if, every time a complaint was made against a person with whom reporters had spoken, journalists were forced to participate in assessing whether that complaint had any substance by handing over their notes and providing evidence.
Consider journalists did this for unsubstantiated, non-criminal complaints. Now imagine we did so and didn’t tell anyone about it.
Would politicians, sources or whistleblowers ever have confidence to say anything to journalists except government-approved messages? Would the public ever receive any but the sanitised version of events?
Newspapers are already under intense and well-publicised pressure to stay afloat in the age of the internet.
The Guardian & Tribune is an independently-owned, regional newspaper.
Imagine if we spend our most precious resource – time – on travelling to Brisbane every time a frivolous or vexatious complaint was made, not against the reporting of our newspaper, but about comments made by the elected politicians upon whom it is our job to report.
Would we have time to report anything other than what was in official press releases?
Given the precedent that would be set by doing otherwise, the Guardian & Tribune hired Anderson Fredericks Turner principal lawyer Kerri Fredericks and Griffith Chambers barrister Mitch Rawlings and challenged the OIA in the only court which had the jurisdiction: the Supreme Court.
Among other arguments, the newspaper’s legal team contended that the watchdog’s demands violated the Human Rights Act and the implied freedom of political communication.
They also argued that the OIA faced a conflict of interest in investigating a councillor given the watchdog itself was disputing that councillor’s interpretation of events.
Faced with a Supreme Court hearing, rather than the evidence her agency sought, Ms Florian backed down.
On August 2, out of an “abundance of caution” over the perceived conflict of interest, she agreed to hand over the investigation to another lawyer assigned by the Local Government Minister and Deputy Premier Steven Miles.
But that letter also contained a bombshell.
In her letter to Ms Fredericks last Monday, the independent assessor admitted to recording Cr Swanborough on May 31 at the meeting to which he referred to in our article.
Citing sub-sections 43(1) and 43(2)(a) of the Invasion of Privacy Act 1971 (Qld) as justification, she wrote that “circumstances existed where it was considered prudent to electronically record the meeting.”
Ms Florian claimed to have made only one statement in that meeting which related to shifting the council boundary over Tamborine Mountain, which she provided in the letter.
“I’m not interested, we’re not interested in the politics of it, I don’t care whether division one is in the Scenic Rim or if it’s in the Gold Coast,’” she quoted herself as saying.
“All we can do is look at it, complaint by complaint, and deal with them accordingly”.
It was the only transcript from the recording which Ms Florian provided.
Given the “existence of the aforementioned recording”, Ms Florian claimed there was “no dispute about what was said” and, so, offered to “release” Mr Creighton and Mr Hinchliffe from handing over their notes and attending an interview.
But it came with a caveat and a condition. The caveat was that the release was “pending further consideration” by an acting assessor.
The condition was silence.
“Before releasing your clients from further compliance with the confidentiality notice I seek written undertakings from your clients that they will not discuss these conversations with each other or the councillor,” she wrote.
But it was not a condition Ms Florian could long enforce.
Because, on August 5, an acting assessor was given carriage of the case.
And within days Ms Florian’s investigation, and her attempt at keeping it under wraps, came crumbling down.
Local Government Minister Steven Miles appointed Andrew Brown as the OIA’s acting assessor last Thursday.
By Tuesday, he had agreed to drop the investigation into Cr Swanborough, released Mr Creighton and Mr Hinchliffe from the OIA’s demands and have the watchdog pay the more than $1,000 filing fee at the Supreme Court.
The confidentiality notices gagging this newspaper he deemed “nugatory”.
It was an abrupt end to weeks of wrangling and a flurry of legal threats.
And it meant that the demands made behind closed doors were now open to scrutiny.
On Thursday, just before going to press, the Guardian & Tribune could at last reach out to Cr Swanborough to ask him if he was aware that he had been recorded by Ms Florian.
"I certainly did not," was his response.
"And I am very, very surprised that they have gone to this extreme.
“This is quite some revelation to me.”
It was far from the first time the councillor had been recorded by the OIA.
Cr Swanborough said he had lost count of the number of complaints made against him, but said it would be well over 40.
None of the complaints, he said, had been found to constitute misconduct.
During the course of those investigations, the councillor said he had been recorded on several occasions. But the circumstances were very different to those of May 31.
“I have had several meetings with the OIA based on similar notices that you received deeming everything confidential and threatening fines,” Cr Swanborough said.
“The investigators have always, always been transparent and put their dictaphones on the table and said that we are recording this conversation.
“Any sort of professionalism or any sort of courtesy would have been that they should have been upfront in disclosing that they were recording the conversation.”
The councillor said the revelations would complicate his further dealings with the watchdog.
"I'm very, very concerned that this puts the OIA and myself in a very difficult position with respect to handling OIA complaints against me,” he said.
“There is an issue of potential bias now which has entered the situation and I'd like to know how that is going to be handled.”
Asked what he made of the OIA’s demands upon this newspaper and the events that followed, the councillor said he applauded the Guardian & Tribune for “taking a stand on such an important issue”.
"I have always respected the role of the press in a modern society," Cr Swanborough said.
"I believe that the rights of the press are paramount to good government and efficient and effective decision making.”
“Without that scrutiny we leave ourselves open to abuse.”
