The Andrews government’s bungled release this week of 80,000 pages of documents about Matthew Guy’s rezoning of Phillip Island farmland effectively ditched the rulebook for relations between governments and oppositions in Victoria.
It triggered allegations that Labor had ripped up an age-old precedent of governments not airing the dirty linen of their predecessors. Undoubtedly, the timing of the release was intended to inflict maximum damage on Guy ahead of the November election.
The theatrical tabling of the documents turned sour when it was discovered private information of individuals had been inadvertently, carelessly, released.
Even so, the documents have shed light one of the murkiest of planning sagas in Victoria’s recent history - then planning minister Guy’s 2011 rezoning of farmland at Ventnor on Phillip Island, his subsequent backflip, and the confidential, out-of-court settlement that followed with the purchaser of the land, Carley Nicholls.
Further than that, though, they provide a rare insight into what governments do behind closed doors. In handwritten notes and highly confidential briefs, we see senior MPs, bureaucrats and lawyers plotting and scheming to avert public scrutiny, and spending up big to do so.
From the outset, then planning minister and now Opposition leader Mr Guy was determined to ensure the real Ventnor story was never told.
He had justified the initial rezoning in the name of housing affordability, and the backflip on having listened to community concerns.
In truth neither decision was about good planning and the community, but rather, about the influence of vested but conflicting Liberal Party interests: party members, mates, donors, MPs and former MPs.
The documents tabled this week show how, after he was sued in January 2012, Mr Guy and those around him went into lockdown and embarked on elaborate, expensive strategy to hide the truth from Victorian taxpayers and voters.
Through 2012 and 2013 The Age and the then Labor opposition lodged FOI requests for Ventnor-related documents.
The documents tabled this week reveal hand-wringing by the minister’s office, lawyers and bureaucrats, about how to respond to FOI requests. Top FOI lawyer Jason Pizer QC was brought in to advise the government.
In 2012 the government refused an FOI request from the Labor opposition which had sought details of early versions of departmental advice to Mr Guy about the proposal to rezone the land.
The government refused to release the documents, claiming it would not be in the public interest.
Eventually the department was forced to release the documents after Labor appealed to the
Victorian Civil and Administrative Tribunal (VCAT). Among them was advice that opposed the rezoning, and an email from Mr Guy's ministerial office asking for new advice that supported it.
In early 2014, an FOI request from The Age was also denied when Mr Guy intervened to stop his own department releasing the material requested.
Documents tabled in parliament this week reveal details of the elaborate plan for handling The Age's request, including instructions about what the FOI officer “must” include in his refusal letter.
Months later, a handful of documents was released after The Age also appealed to VCAT.
Threat of exposure in court
The filing of a lawsuit by Carley Nicholls in January 2012 threatened to undermine attempts by Mr Guy and his department to control information about the Ventnor rezoning.
Media queries could be batted away; parliamentary questions sidestepped; FOI requests delayed or obstructed. But it would be much more difficult to avoid the disclosure of documents through the legal process of discovery.
Any departmental and ministerial files, documents and emails obtained by Nicholls’ solicitors could have been aired in open court, used as the basis of questions put to key witnesses under oath. Mr Guy and other senior Liberal figures embroiled in the dispute - including former premier Ted Baillieu and federal frontbencher Greg Hunt - would have been among those witnesses.
“Real concern of discovery,” the Victorian Government Solicitor’s Office noted on one document as early as February 2012, just after Nicholls' writ was filed.
The potential peril was addressed in critical meeting involving Mr Guy and his top lawyers and advisors in March 2013 as the deadline for producing documents loomed.
“Needs to settle. Can’t go to court,” Mr Guy is recorded as saying.
Would not want Minister to take the stand. The more we admit, the less there is to contest.Lawyer's note
Bound up in these concerns was the prospect of the minister having to go “in the box” - testifying and facing cross-examination about his decision-making on Ventnor.
“Would not want Minister to take the stand. The more we admit, the less there is to contest,” says a lawyer’s note from the same meeting.
Departmental lawyers also grew concerned about Mr Guy’s state of mind as the case headed towards trial, discussing his “demeanour” in at least two private meetings.
“[Solicitor] Ben Morris noted that this was the most stressed he has [seen] a Minister about the proceeding. [Barrister] Marita agreed.”
Mr Guy never did go “in the box”. A $2.5 million payout from taxpayer money, plus about $1 million in legal fees, made sure of that. But the discovery process itself proved thorny when it was realised that many documents sought by Ms Nicholls’ solicitors no longer existed.
Among the missing materials were emails to and from Mr Guy, notes from telephone discussions and correspondence from advisors about the Ventnor matter.
It fell to Mr Guy’s then parliamentary liaison officer, Michelle Pavlou, to explain their absence in a sworn affidavit tendered to the Supreme Court.
“In my experience, the Minister deals decisively with emails to minimise the number of emails in his inbox … Once the Minister has forwarded an email for action or replied to the email itself, it is his practice to delete the email from his email system,” Ms Pavlou wrote.
“It is often the case that no file notes or written records are kept of telephone conversations.”
In reaching a negotiated settlement, all of the discovered documents were safely locked away. At
least until Monday this week, when some were tabled as part of Labor’s document dump.
Publicly, Mr Guy would defend the settlement of the Ventnor lawsuit as the best outcome to avoid spending “millions of dollars” more of taxpayer money fighting a lengthy trial where the outcome was uncertain.
But during internal discussions about a potential settlement, the primary concern was protecting Mr Guy’s political future by avoiding a public grilling in court over his decision-making.
“This may be winnable @ law but this is a political fight and it is unwinnable,” Mr Guy is quoted as saying in confidential notes in July 2013.
“This can’t go to court. I shall not be in the job if it goes to [court].”
In at least one instance, senior department figures would refer to a potential settlement as a “stuff-up” payment.
The settlement to Ms Nicholls and the then owner of the land, John Cadogan, ultimately cost Victorian taxpayers more than $3.5 million. Behind the scenes, senior lawyers had advised the government that it should have paid a maximum of $250,000 plus legal costs.
As part of the deal, all parties were bound to “cast iron confidentiality”. Mr Guy had used the legal system and bought silence.
Almost as a soon as Mr Guy considered settling rather than fighting the matter, concerns arose about how a payout would be perceived by oversight agencies.
“Can’t settle b/c no case ... What would the Auditor-General say?” a government solicitor noted in February 2012, just one month after the lawsuit was filed.
Ultimately, avoiding scrutiny from the Ombudsman became the pressing issue for the planning department when an investigation was launched in October 2013 in the aftermath of the $2.5 million settlement.
Have to refuse to hand them over voluntarily. Privilege is good line. If summonsed we will have to comply.A note from a departmental meeting
The Ombudsman’s demands for documentation were met, and countered, by the planning office using an audacious strategy that involved stalling investigators and withholding information until compelled to do so.
At a January 2014 meeting of senior department lawyers, a decision was made to “maintain file integrity” by separating and “refoldering” materials to be kept from the Ombudsman.
Attempts to access these documents would be blocked with a claim of “legal privilege”, even though the department had advice that privilege did not apply in an Ombudsman's investigation.
“Have to refuse to hand them over voluntarily. Privilege is good line,” a note from the meeting said. “If summonsed [then] we will have to comply.”
But even then there were some documents that would never be turned over to the Ombudsman.
As additional protection against full disclosure, Mr Guy sought external legal counsel to mount an argument – independent of the planning department – that he possessed a separate legal privilege by virtue of his position as a government minister.
“The Minister’s legal representatives provided legal advice arguing that the Minister was not ‘the Crown’ and that he was thus entitled to claim privilege over the documents as an individual,” the Ombudsman noted in his March 2014 report.
“While I accept that it was reasonable for the Minister to rely on this advice in the circumstances, I do not agree with the interpretation of the legislation the advice presented.”
The validity of the claim would never be tested, as the Ombudsman chose to keep his requests voluntary rather than force the issue in court. Mr Guy never turned over six documents that were being sought. The planning department withheld an unknown number of others.
It is not clear what those documents were, or if they are buried somewhere inside the 80,000-page archive tabled in parliament on Monday.
Labor has weakened its political case for a proper investigation of Ventnor through its too-smart-by-half handling of these important documents this week.
But politics aside, the detail in these documents are crying out for such an investigation.
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Royce Millar is an investigative journalist with a special interest in public policy and government decision-making.