Former state archivist claims Palaszczuk government ordered him to falsify annual reports

Queensland’s former state archivist has come out swinging against members of the “toxic” Queensland Government, who he claims are profiling him and his family in the wake of his allegations he was told falsify reports to hide “bad news”.

Former State Archivist Mike Summerell said some “scumbags” inside the “toxic” Queensland government were trying to besmirch his reputation.

In a blistering social media post, he said someone was doing background checks on him and his family.

“Honestly some people are such scumbags!!!,” he wrote.

“Quit trying to profile and background me so you can paint me as some LNP zealot with a personal grudge.

“If you start attacking my family and attempting to impact the life I have after I escaped the toxic environment that is the Queensland Labour Party in government…which I know you are doing because the people you are calling are telling me - you truly will have made a huge mistake.

“The more you attack me the more determined I become …and I get a little bit angrier each time.

“I really had no desire to be a part of your dirty little world but I felt compelled to do so because people deserve better than you..a lot better.

“News flash for you - I have been a Labour Green voter my entire adult life.

“In the last NZ election - as I have no vote in Australia - I voted for Jacinda as my local MP and Green as party vote.

“I vehemently dislike the environmental position of the LNP…but oddly compared to you their integrity position would seal my vote for the first time ever.

“I am no LNP zealot. Stop looking.”

He added: “I am not a politician I have no interest in your dirty little world…. I am simply someone trying to do the right thing.’’

The damning post comes as the ousted state archivist accused the Palaszczuk government of misleading Parliament by falsifying his annual reports to hide “bad news”.

In a dramatic new twist in the integrity scandal, Summerell claimed he was “summoned” to the Tower of Power in William Street and “explicitly” ordered to remove any mention of Transport Minister Mark Bailey and the Mangocube scandal.

“I was summoned to 1 William St to a meeting with the Director-General of Department of Housing and Public Works where I was informed that the previous perceived independence of the State Archivist which had been in place since the passing of the public records in 2002 was no longer valid,” he said.

SCROLL DOWN TO READ THE FULL STATEMENT

“I responded to that with a lengthy paper outlining how this was completely inconsistent with previous legal advice, the purpose of the act, the intent of the act and practices across Australia and New Zealand. My response was ignored.”

Summerell claimed Works Minister Mick de Brenni ignored advice from the little-known Public Records Review Committee to reinstate the independence of the state archivist.

“The Minister ignored this request,’’ he said.

Queensland’s former state archivist Mike Summerell.

Next he requested advice from the Crown law Office on whether any laws had been broken.

“I as State archivist requested Crown law legal advice on two key aspects of this as I felt the position was fundamentally incorrect.

“I asked for clarification that I could be directed on the content of my annual report and in investigations I undertook in regard to potential breaches of the Act. My view was that the Act gave me independence in investigations – indeed any interference in my investigations was in fact a breach of the Act.

“In addition the intent of the Act was clearly that the annual report was intended to be an independent report to Parliament. “My requests for legal advice on these matters were never progressed, they never recieved them. The department stopped them progressing.”

He added: “It became a feature of the next three years, in that in the vast majority of cases any request for Crown law legal advice that was made by me was never progressed – in particular requests that related to my independence, interpretation of the act, investigations or potential prosecutions.”

Public Works Minister Mick de Brenni. Picture: Dan Peled

Summerell said he was told his independence was limited, and that the Minister and chief executive of the department had powers to intervene. They pointed to an obscure clause in the Act.

He rejects that.

“Prior to 2018 this was simply interpreted as funding and resources … it is a pretty standard clause. It is in fact the only time the Chief Executive is ever mentioned in the Act.

“But in 2018 that clause was used to ensure I lost essentially all independence.’’

Mr Summerell said official interference became a “major problem” in carrying out his duties.

“In 2017/2018 after drafting my draft annual report I was pressured to remove essentially any content which could be perceived negatively. Explicitly, removal of anything that referred to the Bailey investigations, its findings, its recommendations, its costs, potential improvements to the public records act, the standard of government record-keeping – essentially all the things the Act suggests I report on. It became a completely misleading document. … and intentionally so.”

Because of the interference Mr Summerell said his 2017/18 report was “grossly misleading report on the state of record-keeping in Queensland and in particular the administration of the Act …”.

He added: “My independence had been taken away and I had been directed to produce a piece of PR essentially, not a report to Parliament on the administration of the Public Records Act. “I considered this annual report a major failure of my time as state archivist.

“The Bailey (Mangocube) review was the most significant investigation ever undertaken by any Queensland state archivist, it had discovered major issues, it had used significant resources and it resulted in significant recommendations in relation to noncompliance with the act …. and I was told to remove all reference to it.’’

In his statement Summerell claims it was the first time in history the annual report a State Archivist had been obstructed. And it happened again in his 2018-19 report.

“In 2018/19 I knew this was going to happen again. I drafted a version of the report where I spoke my mind on the state of government record-keeping etc.

“I was directed again to remove essentially any content that could be perceived negatively. This time I refused.

“I have no doubt that the changes made to my statements in the annual reports of those years were driven by political interest being placed above the public interest … or indeed, the law and democracy itself.”

Premier Annastacia Palaszczuk. Picture: John Gass

Mr Summerell’s bombshell statement today follows his call for an independent inquiry proposed by the Integrity Commissioner Nikola Stepanov.

Dr Stepanov said her independence, too, was challenged by an overbearing bureaucracy that raided her office seizing her computer.

Mr Summerell singled out Mr de Brenni for strong criticism.

He said Mr de Brenni told him: “Your job is to make me look good,” but accepts those comments were made in jest.

Mr Summerell added: “I think too many public servants actually took that as a direction to live by.

“They saw their job to make the annual report make the government look good … or certainly not bad …

“If it wasn’t to do what the legislation required it to do … and they couldn’t care less.”

Annoyed at the interference, Mr Summerell “escalated” his concerns in November 2019 to the little-known Public Records Review Committee set up to advise the State Archivist and the Minister in the Public Records Act.

Transport Minister Mark Bailey. Picture: Dan Peled

“Their advice clearly stated that I should not be directed to exclude content from the annual report if I considered it relevant to the administration of the Act,” he said.

“For two years I sought this advice and was stopped from obtaining it.

“When I obtained it, my view that they had no right to direct me to exclude content was correct.

“For two years I was directed to create misleading annual reports to parliament by DHPW senior officials with as far as I am concerned only one objective – don’t say anything that could be embarrassing or damaging to the government.

“The misleading of parliament is a huge integrity issue. I don’t believe at all that my experiences were unique … but I can only comment on my own experience.”

Mr Summerell said this advice allowed him to submit a 2019-20 report “subject to no interference”.

He also accused the State Government of attempting to bury his reports by releasing them in busy news periods when they would be unlikely to be reported.

“Even though I had to complete it in October of the relevant year, the Minster would always look to release in my view at a time where it would get lost and no one (would) notice it …. and to be frank nobody noticed the exclusions that occurred in 2017/18 and 2018/19. It was tabled at a time deliberately it seems so MP’s were too busy with other things.

“So much for checks and balances … but then perhaps the premier means the checks and balances that control integrity agencies, not checks and balances for Ministers and senior bureaucrats.”

Sensationally, Mr Summerell alleges the Palaszczuk government even blocked the reform recommendations that came out of the Crime and Corruption Commission investigation into Transport Minister Mark Bailey’s private email account.

“All the major initiatives we sought to put in place to improve record-keeping from 2017 onwards were stopped or never progressed. The review of the Public Records Act, the most significant recommendation of the Bailey review (was) stopped in 2018 by Minister de brenni after it was started by Minister (Leeanne) Enoch in 2015.

“All urgent amendments to the act never progressed …

“The act has enormous deficiencies which make it unfit for purpose. We communicated that constantly for four years.

“How bad is it? It is totally useless.”

He said it became clear in his mind that there were no consequences for ministers who potentially breached the Act.

“Really to summarise the Public Records Act: you can really breach at will there are no consequences if you do.

“And guess what: The Minister responsible for this act saw this as so unimportant that he stopped the review of the Public Records Act when all these issues were provided to him.’’

“Anyone would think that they were happy to have an ineffectual integrity watchdog and legislation that was useless.

“They don’t take transparency, accountability and integrity seriously.”

Mr Summerell said a review of the Public Records Act was well overdue.

“It is no longer fit for purpose.’’

He said the Palaszczuk government “sought to stop us doing our job and hid the facts of how bad things were.’’

“People need to know how little respect this government has for the integrity of the public record, transparency and accountability. Checks and balances don’t work if the government of the day deliberately seeks to avoid them’’

The Premier’s office has been approached for a comment.

FULL STATEMENT BY FORMER STATE ARCHIVIST MIKE SUMMERELL

“The Section 56 of the Public Records Act states the following

(1) Within 4 months after the end of each financial year, the archivist must give to the Minister a report on the administration of this Act during the year.

(2) Without limiting subsection (1), the report may include details of the extent to which public authorities are complying with the Act, including, for example, instances of noncompliance, if any, and measures taken, or the archivist recommends be taken, to prevent, or reduce, noncompliance with the Act.

(3) The Minister must table a copy of the report in the Legislative Assembly within 14 sitting days after the Minister receives it.

The Premier very recently stated the importance of checks and balances in the democracy in Queensland. “We believe in the checks and balances that are put in place as part of our democracy.”

31/1/22 - CCC review announcement

In the passing of Public Records Act 2002 one of the key “checks and balances” is the annual report of the State Archivist - it was stated as one of main resources to ensure the independence of the state archivist. as well as the effectiveness of government record-keeping.

Clearly if the Annual report isn’t an independent report to Parliament on the administration of the Public Records Act, that is a significant issue in itself.

Even more so, if it also is in fact a deliberately misleading report to Parliament and deliberately crafted to tell a misleading story for political gain…. or more accurately to avoid political “bad news”.

In Feb 2018, after the events that occurred following the Bailey report where I went to the Integrity Commissioner to ensure I could present a full and unchanged report on the Bailey matter, I was summoned to 1 William St to a meeting with the DG of DHPW where I was informed that the previous perceived independence of the state archivist which had been in place since the passing of the public records in 2002 was no longer valid.

She had obtained legal advice which stated I had no independence other than in disposal decisions and was subject to the direction and control of the DG (her) and the Minister in all other areas.

I responded to that with a lengthy paper outlining how this was completely inconsistent with previous legal advice, the purpose of the act, the intent of the act and practices across Australia and NZ. My response was ignored.

Following this the PRRC. (Public Records Review Committee) which exists to advise me and the Minister on the administration of the public records act wrote to the Minister asking him to restate the independence of the state archivist in regard to his statutory functions. The Minister ignored this request.

I as State archivist requested Crown Law legal advice on two key aspects of this as I felt the position was fundamentally incorrect.

I asked for clarification that I could be directed on the content of my annual report and in investigations I undertook in regard to potential breaches of the Act.

My view was that the Act gave me independence in investigations - indeed any interference in my investigations was in fact a breach of the Act.

In addition the intent of the Act was clearly that the annual report was intended to be an independent report to Parliament.

My requests for legal advice on these matters were never progressed. In DHPW I was required to ask DHPW to obtain Crown Law advice for me…. if they chose not to progress that request I could not get independent legal advice.

It became a feature of the next 3 years, in that in the vast majority of cases any request for Crown Law legal advice that was made by me was never progressed - in particular requests that related to my independence, interpretation of the act, investigations or potential prosecutions

The Act itself caused this issue in many ways s25-27 detail in great length the powers and functions of the archivist. S23 Control of the Archives however states -”

Subject to the Minister and the chief executive, the archivist is to control the archives.”

Prior to 2018 this was simply interpreted as funding and resources indeed that is how it is interpreted in most similar entities - it is a pretty standard clause.

It is in fact the only time the Chief Executive is ever mentioned in the Act. They are never mentioned again.

But in 2018 that clause was used to ensure I lost essentially all independence - from that point on I had no independence in the annual report, the development of policy and guidance, and in investigations - I was subject to the direction of the DG, the department and the Minister in all these areas…. and to be fair it is a potentially valid interpretation the clause is awful…though I never felt it would cover investigations and the annual report or indeed guidance that I would issue in any circumstance.

That seemed totally ridiculous.

Direction would not have been a problem if the direction I was given was consistent with the Public Records Act, my statutory duties and the code of conduct - sadly in many cases the direction

I received was in my opinion in conflict with one of more of these areas on many occasions.

In regard to the Annual report - these matters first became a major problem when I sought to issue my 2017/2018 Annual report - prior to this I had issued annual reports in 2015/16 and 2016/17 with no interference at all. In 2017/2018 after drafting my draft annual report I was pressured to remove essentially any content which could be perceived negatively.

Explicitly removal of anything that referred to the Bailey investigations, its findings, its recommendations its costs, potential improvements to the public records act, the standard of government record-keeping - essentially all the things the Act suggests I report on. It became a completely misleading document. …and intentionally so.

I expressed dismay at this interference and made it clear I considered it a breach of the Act and given the nature of the material being removed a potential breach of the code of conduct. No one had ever interfered with the independence of the State Archivist in the drafting of his or her annual report to parliament in our knowledge.

There was an extensive email trail highlighting my concerns, but in the end all that content was removed. I made some minor allusions to these issues as a compromise I feel, but with the looming decision of the renewal of my contract for a further 2 years I am ashamed to say it was a powerful mechanism to control my pushback and I think I succumbed to that pressure…to my great shame.

As I highlighted in a recent article I faced the dilemma of doing the right thing vs career & family and I consider I chose career….as do many others faced with this dilemma it seems.

The 2017/18 report is a grossly misleading report on the state of record-keeping in Queensland and in particular the administration of the Act and the distortion was deliberating created.

My independence had been taken away and I had been directed to produce a piece of PR essentially, not a report to Parliament on the administration of the public records act. I considered this annual report a major failure of my time as state archivist.

The Bailey review was the most significant investigation ever undertaken by any Queensland state archivist, it had discovered major issues, it had used significant resources and it resulted in significant recommendations in relation to non compliance with the act…..and I was told to remove all reference to it.

I was also told to remove all reference to the poor standard of government record-keeping in general…..you said it last year…you don’t need to say it again.

In 2018/19 I knew this was going to happen again.

I drafted a version of the report where I spoke my mind on the state of government record-keeping etc.

I was directed again to remove essentially any content that could be perceived negatively. This time I refused - I refused to make any changes to my statement at all.

But in 2018/19 there is no statement by me at all in the final version of the annual report that was tabled.

I have attached the 1st version and the final version to highlight what I had said and which was removed.

The Act doesn’t say I must provide a statement so it was removed and I was content in some ways in that I would prefer to say nothing that include a completely misleading statement by me.

I have no doubt that the changes made to my statements in the annual reports of those years were driven by political interest being placed above the public interest…or indeed, the law and democracy itself. Minister de brenni (I think jokingly) said to me on one occasion “your job is to make me look good”….I think too many public servants actually took that as a direction to live by…. they saw their job to make the annual report make the government look good…or certainly not bad…it wasn’t to do what the legislation required it to do…and they couldn’t care less.

I escalated the matter to the PRRC, I raised multiple issues in regard to many instances of interference and obstruction I experienced in a meeting of the PRRC in Nov 2019.

As a result of that meeting they asked for the legal advice on my independence in the drafting of the annual report on my behalf.

In May 2020 the department eventually provided that advice.

The advice clearly stated that I should not be directed to exclude content from the annual report if I considered it relevant to the administration of the Act.

To quote a summary of it -

“ …. we do not consider that the Minister or Director-General can or should direct that any particular matters related to the administration of the PR (Public Records Act) should be excluded from the Annual report. If the Minister or Director-General were to provide a direction not to report on particular compliance issues during the year that might give rise to a perception of protecting some public authorities over others”.

“In our view, great care should be taken in directing a public servant to exclude matters in a report required to be provided under any legislation and tabled in Parliament.

The Minister or Director-General can ensure that the matters reported are relevant topics or issues for the Annual Report, but should not direct particular instances of non compliance or recommendations regarding action to be taken to be excluded from the report.”

For 2 years I sought this advice and was stopped from obtaining it.

When I obtained it, my view that they had no right to direct me to exclude content was correct.

For 2 years I was directed to create misleading annual reports to parliament by DHPW senior officials with as far as I am concerned only one objective - don’t say anything that could be embarrassing or damaging to the government.

The misleading of parliament is a huge integrity issue. I don’t believe at all that my experiences were unique…but I can only comment on my own experience.

I had a key role in the integrity of the public record which has a key role in ensuring the transparency and accountability of government and I was essentially directed to mislead parliament as to the state of government record-keeping in Queensland.

For 2 years I was denied access to legal advice to challenge the direction I was given.

In the 2019/20 report I was again subject to no interference and I could largely say what I wanted. It was released after I left office.

One of the other notable things that occurred post 2018 was the timing of the release of my annual report.

Even though I had to complete it in Oct of the relevant year, the Minster would always look to release in my view at a time where it would get lost and no one notice it…. and to be frank nobody noticed the exclusions that occurred in 2017/18 and 2018/19. It was tabled at a time deliberately it seems so MP’s were too busy with other things.

So much for checks and balances…but then perhaps the premier means the checks and balances that control integrity agencies not checks and balances for Ministers and senior bureaucrats.

Why was this important - in 2015 QSA last took a biannual survey of government record-keeping standards in it - 85% of public sector agencies didn’t meet what we would have seen as a minimum standard of record-keeping practice.

We were never allowed to undertake the 2017 survey - we asked but it was potential bad news so that request never went anywhere either - it was 4 years late when I left office….it had made it to the Minsters office a few times over the years but never came out.

Our view backed by everything we were seeing was the standard of record-keeping was markedly worse than in 2015 and becoming increasingly so.

All the major initiatives we sought to put in place to improve record-keeping from 2017 onwards were stopped or never progressed- the review of the Public records act - the most significant recommendation of the bailey review - stopped in 2018 by Minister de brenni after it was started by Minister Enoch in 2015, all urgent amendments to the act never progressed, the bi annual record-keeping survey stopped.

The act has enormous deficiencies which make it unfit for purpose and we communicated that constantly for 4 years.

How bad is it…it is totally useless.. e.g.

It is an offence to dispose of public records without authority - but nobody has the power under the act to prosecute you

It is an offence to dispose of public record without authority…. but if you don’t make them at all there are no penalties - so don’t make records - it is breach of the act but there are no penalties for it.

You are required to make and keep public records and you are required to “have regard” to the policies we issue…essentially that means our guidance is optional…even critical guidance is optional

Really to summarise the public records act - you can really breach at will there are no consequences if you do…. and guess what the Minister responsible for this act saw this as so unimportant that he stopped the review of the public records act when all these issues were provided to him following the Bailey review and again refused to address these multiple times after.

To be fair senior officials didn’t even bother progressing the urgent amendments to him.. Anyone would think that they were happy to have an ineffectual integrity watchdog and legislation that was useless…. but that would mean they don’t take transparency, accountability and integrity seriously wouldn’t it?..that can’t be true.

So how bad is it?

Public records form the cornerstone of government accountability. Good records support effective business practice and improve government accountability and efficiency as records provide unique evidence and context of the actions and decisions taken by government over time. Records are central to the government’s ability to efficiently and effectively provide goods and services, protect the community, and demonstrate delivery on its commitments.

Successful open government relies on sound record-keeping practices to support public accountability and transparency. Under the Act, Queensland public authorities are required to manage public records responsibly to ensure that information is complete, reliable, accessible, and usable for as long as they are needed.

Through an examination of 202 reports tabled between 2013 and 2020 by the Queensland Audit Office, the Queensland Ombudsman, the Office of the Information Commissioner and the Crime and Corruption Commission, Record-keeping issues were identified in 82 of the 202 reports. Specific issues include:

ineffective record-keeping practices (e.g. procedures; policies; workplace culture)

decentralised records management systems

systems and technology limitations (e.g. maintenance; security, capability, automation)

inadequate record-keeping training / awareness

falsified / fabricated records.

Forty-two Acts of Parliament were acknowledged as having been impacted in some ways due to record-keeping issues in the 2019/20 period.

There have been high profile cases where the failure to make and keep public records has been identified as a significant issue. In March 2020, a coronial inquest was conducted into the death of 22-month old Mason Jet Lee in 2016.

The Coroner’s report published in June 2020 details numerous incidents involving poor record-keeping which contributed to the eventual death of the toddler.

In 2017 QSA undertook its first ever investigation for potential breach of the Public Records Act…since then in my time as State Archivist there were at least 16 investigations and we found multiple breaches and they resulted in absolutely no prosecutions or censures…as stated above legal advice requests to look to pursue prosecutions were never progressed and the key legal advice we frequently we needed in certain investigations was never progressed…so between the deficiencies of the act and the lack of support when we looking to enforce the act…not a surprise really.

The time for a review of the Public Records Act is now well overdue and needs to include an independent and fully supported state archivist. It is no longer fit for purpose and its consequences are becoming very clear…. but this government rather this fix these issues enhance the effectiveness of my role did the opposite.

It sought to stop us doing our job and hid the facts of how bad things were in multiple annual reports…for no other reason that it wasn’t in their interest to draw attention to a bad news story…. sorry it was in the public interest that you did and you failed to do so…. people need to know how little respect this government has for the integrity of the public record, transparency and accountability. Checks and balances don’t work if the government of the day deliberately seeks to avoid them.