STH EAST QLD - The local government watchdog’s decision to secretly record a Scenic Rim councillor was, likely, lawful.
But it was “unusual, ethically puzzling” and a tactic more suited for investigations into motorbike gangs or drug dealers rather than elected officials.
That’s the view of the University of Queensland’s John Swinson.
The professor of law was responding to a story broken by the Guardian & Tribune on Saturday which revealed the state’s Independent Assessor Kathleen Florian secretly recorded a conversation with the councillor representing Tamborine Mountain, Derek Swanborough.
Ms Florian cited subsections of the Invasion of Privacy Act 1971 (Qld) as justification for recording a meeting with the councillor on May 31 when she claimed “circumstances existed where it was considered prudent to electronically record the meeting.”
Professor Swinson said that argument might hold sway in a court of law, but that the Independent Assessor’s tactic didn’t just raise questions of legality.
“One must consider whether it is ethical and appropriate, not just legal,” he said of the secret recording.
The professor said more information was needed to determine why Ms Florian chose to record the meeting. But it was ethically puzzling, he said, “given it was a councillor who was being recorded.”
“That's an elected official we’re talking about, we're not talking about a bikie, or a drug dealer, we're talking about someone who has been elected by the people who is being secretly recorded,” Professor Swinson said.
The OIA declined to answer questions from this newspaper seeking details.
Cr Swanborough said that the meeting was held at his request and also included Deputy Independent Assessor Charles Kohn.
The councillor said he called the meeting primarily to request the watchdog do something about what he described as a series of “seeming frivolous and vexatious complaints against me that were dismissed yet just kept on coming”.
He said he had lost count of the number of complaints made against him but that they now tallied over 40.
He said none had been found to constitute misconduct.
At the meeting in question, the assessor and the councillor discussed his campaign to have Tamborine Mountain break away from the Scenic Rim Regional Council and join the Gold Coast City Council.
Cr Swanborough left the meeting under the impression that he had an implicit assurance that, in the eyes of the OIA, his actions were above board.
But when Cr Swanborough told this newspaper he had been assured he was within his rights to campaign on the boundary change the OIA denied it, sparking a fresh conduct complaint against him and a chain of events which culminated in the watchdog demanding notes and recordings from the Guardian & Tribune under threat of fines.
This newspaper pushed back and, in the legal wrangling which followed, the Independent Assessor provided us with a letter bearing her name, signature and official letterhead in which she said that she had recorded the councillor.
Cr Swanborough said he had no idea he was being recorded.
Professor Swinson said that, under Queensland law, it was legal for one party in an in-person conversation to secretly record another.
That changes if the conversation was held over the phone or online, or if the recording device was set up by someone who then left the room.
It is unclear who actually recorded Cr Swanborough and by what means.
But Professor Swinson said “higher ethical standards” applied to the people who govern us.
“If you are a government official conducting an interview you would typically ask: 'can I record it' and put the recording device on the table,” he said.
“Governments shouldn't be going around secretly recording people without a warrant.”
