Remedies against executive refusal of information
As has been noted in the analysis above, the principal remedy which the Senate may seek against an executive refusal to provide information or documents in response to a requirement of the Senate or a committee is to use its power to impose a penalty of imprisonment or a fine for contempt, in accordance with the Parliamentary Privileges Act 1987 (see Chapter 2, Parliamentary Privilege). As has also been noted, there are practical difficulties involved in the use of this power, particularly the probable inability of the Senate to punish a minister who is a member of the House of Representatives, and the unfairness of imposing a penalty on a public servant who acts on the directions of a minister. A penalty imposed for contempt may be contested in the courts under the Parliamentary Privileges Act (see Chapter 2, Parliamentary Privilege). It is possible, but unlikely, that the courts in such a challenge could determine a claim of public interest immunity (see Egan v Chadwick and others 1999 46 NSWLR 563).
The Senate may impose a range of procedural penalties on a government for a refusal to provide information or documents, ranging from a motion to censure a minister (see above) to a refusal to pass government legislation. The Senate has, however, usually been reluctant to resort to the more drastic of these kinds of measures.
In some cases procedural penalties have been imposed and alternative methods of obtaining the required information, such as committee hearings, have been pursued.
On 12 August 2003 the Senate deferred consideration of two customs and excise tariff bills to give effect to an ethanol subsidy scheme until the government produced documents required by various Senate orders relating to the scheme. The documents were initially not produced and the bills were not passed until documents were subsequently tabled. (12/8/2003, J.2089-90; 1/4/2004, J.3324-5)
A remedy against government refusal was included in an order for documents made on 1 November 2000. It provided that, should the required documents not be produced, the responsible Senate minister would be obliged to make a statement and a debate could then take place. Documents were produced in response to the order. (1/11/2000, J.3462; 2/11/2000, J.3479; 27/11/2000, J.3586)
As has also been noted above, the Senate may seek to impose a political penalty on a government for refusing to cooperate with a Senate inquiry. This, in effect, is what happened in relation to the overseas loans affair in 1975 and the taxation avoidance affair in 1982: the government’s refusal to cooperate with inquiries was made the subject of unrelenting political attack. In both cases, the perception that the governments were concealing their own mistakes and misdeeds probably significantly contributed to their defeat at subsequent general elections. As was suggested in evidence before the Privileges Committee, however, an electoral remedy is uncertain of application, depending as it does on the relative electoral strengths of parties at the time.
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