Odgers' Australian Senate Practice Thirteenth Edition

Chapter 18 - Documents tabled in the Senate

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Orders for production of documents

The Senate may make an order for the production of documents. Standing order 164 provides:

  1. Documents may be ordered to be laid on the table, and the Clerk shall communicate to the Leader of the Government in the Senate all orders for documents made by the Senate.
  2. When returned the documents shall be laid on the table by the Clerk.

Orders under this standing order are sometimes known as “orders for returns”, and the documents when produced as “returns to order”.

A motion for the production of documents is moved on notice, although leave of the Senate may be given to move it without notice. The terms of the motion describe the documents and usually specify a day for their production.

Orders for the return of documents are relatively common as the following table shows.

Parliament

Orders

No. of orders complied with

1993 – 1996

53

49

1996 – 1998

48

43

1998 – 2001

56

41

2002 – 2004

89

43

2004 – 2007

21

15

2008 – 2010

63

30

These figures reflect increasing resistance by governments to the orders.[21]

Orders for documents are used by the Senate as a means of obtaining information about matters of concern to the Senate. They usually relate to documents in the control of a minister, but may refer to documents controlled by other persons. Documents called for are often the subject of some political controversy, but may simply relate to useful information not available elsewhere.

Orders for the production of documents may require the production of documents in the possession of a person or body, or the creation and production of documents by the person or body having the information to compile the documents.[22] Some orders require the production by the relevant officers or bodies of statements about particular matters.[23] See also below for orders requiring statutory bodies to produce reports on matters relating to their responsibilities.

Orders for the production of documents may be permanent orders, requiring periodical productions of documents for an indefinite period. Examples of permanent orders include:

  • an order requiring the production of indexed lists of government files;[24]
  • an order made by way of a second reading amendment in respect of the Shipping Grants Legislation Bill 1996 for production of regular reports on international shipping standards;[25]
  • a permanent order, now in SO 139(2), for the production of lists of commencement dates of legislation;[26]
  • an order of 25 March 1999 requiring the Australian Competition and Consumer Commission to produce reports on the practices of health funds;[27]
  • an order of 20 June 2001 requiring departments and agencies to publish on the Internet lists of contracts to the value of $100 000 or more with statements of reasons for any confidentiality clauses or claims;[28]
  • an order of 29 October 2003 requiring the production of statements giving details of government advertising campaigns costing $100 000 or more;[29]
  • an order by way of an amendment to the motion for the adoption of the report of the committee of the whole on the Transport and Communications Legislation Amendment Bill (No. 3) 1993 for regular reports on action taken under the bill;[30]
  • two orders made on 24 June 2008 for the production of regular reports on government appointments and grants by departments and agencies, the timing of the reports linked to the estimates hearings.[31]

The Finance and Public Administration Committee presented in February 2007 a report on the order requiring the Internet listing of contracts, recommending the maintenance and strengthening of the order.[32]

Occasionally the Senate has inserted orders for documents into statutes by way of amendments to bills.[33]

Orders for documents usually specify a time by which the documents are to be produced. The time allowed varies greatly, from days to years. In 1995, by way of an amendment to the motion for the adoption of the report of the committee of the whole on the First Corporate Law Simplification Bill 1995, the Senate made an order requiring the Australian Securities Commission to produce a report on the first two years of operation of certain amendments to the bill. The report was duly produced in 1998.[34]

Several orders for production of documents have related to an order of the Senate, now in SO 74(5), requiring that answers to questions on notice be supplied within 30 days. The order provides that if a Senate minister does not supply an answer within 30 days and does not give an explanation of why the answer has not been provided, a senator may move a motion, without notice, relating to the minister’s failure to provide either an answer or an explanation. On a number of occasions this motion has taken the form of an order for the production of a document, namely, the answer to the question. The government has complied with these orders.[35]

Orders have also been made to require the production of answers to questions placed on notice during committee hearings on estimates.[36]

On a motion being agreed to for the production of documents, the Clerk transmits copies of the resolution to the Leader of the Government in the Senate and to the relevant minister in the Senate. Although the standing order specifies that the Clerk shall table the document, it is now more usual for the responsible minister to do so, in accordance with standing order 166.

Although orders for the return of documents are almost invariably directed to ministers, orders may be made to other persons or organisations.

Orders were formerly addressed to the Auditor-General.[37] Following the passage of the Auditor-General Act 1997, which provides that the Auditor-General is immune from parliamentary as well as executive government direction, the Senate has requested, rather than ordered, the production of reports by the Auditor-General.[38]

On 14 May 2003, the Senate, adopting recommendations in a report of the Foreign Affairs, Defence and Trade References Committee, made requests to the Auditor-General, as well as an order to the government, for reports on Defence Department equipment acquisitions.[39]

Orders have been directed to the Australian Securities Commission;[40] to the Australian Competition and Consumer Commission to produce reports[41] and to the Productivity Commission.[42] The Human Rights and Equal Opportunity Commission responded with a report to a request from the Senate.[43] Telstra responded to an order for documents in 2001.[44]

For a request (rather than an order) directed to a joint committee to produce a document in the possession of the committee, see the question of the scrutiny by the Public Works Cmomittee of the new ASIO headquarters building in Canberra.[45] The resolution took the form of a request because an instruction to a joint committee would otherwise require the agreement of both Houses.

An order passed on 25 June 2009 requested the government to commission the Productivity Commission to produce a report on some aspects of the government’s carbon pollution reduction scheme legislation, and ordered that information already in the possession of the Commission be produced.[46] The information was produced, although the government did not make the reference.

In 2010 a further order directed to the Productivity Commission required it to produce a report on default superannuation funds for the purpose of industrial awards or agreements.[47] A response indicated that the matter had been referred to the Treasurer but, at a subsequent estimates hearing, the Commissioner indicated that the project was on the Commission’s work plan for a subsequent period.[48]

Orders were also directed to the newly established Australian Information Commissioner for the production of assessments of the adequacy of the government's reasons for not complying with orders on aspects of the proposed mining tax and variations to the GST agreements with the states. When, in relation to the mining tax orders, the Information Commissioner indicated his view that he was not empowered by his statute to perform the function asked of him by the Senate (or by the agreements on parliamentary reform), the Senate passed a declaratory resolution on 22 November 2010 drawing attention to its powers under the Constitution and the lack of any legislative constraint on those powers in the Information Commissioner's enabling statute.[49] The matter remains unresolved.

Orders for the production of documents normally require that they be laid before the Senate. Orders for documents may, however, require the provision of documents to committees. An order passed by the Senate on 5 November 1992 required that a report to the government on Medicare fraud be provided to the Standing Committee on Community Affairs that day. On 9 November the committee reported that the document had not been produced to the committee. The Minister for Health, Housing and Community Services had indicated that he was unwilling to produce the document because he did not wish it to be made public. The presentation of a document to a committee does not automatically make it public, but the committee is able to authorise the publication of the document. The Minister representing the Minister for Health, Housing and Community Services in the Senate moved by leave a motion to the effect that the document be provided to the committee but that the committee not publish the document until after 11 December. This motion, representing a compromise on the issue, was agreed to.[50] In 2005 the Australian Competition and Consumer Commission was ordered to produce a report on a confidential basis to a committee. The report was duly produced.[51]

A senator, after question time on any day in the Senate, may seek an explanation of, and initiate a debate on, any failure by a minister to respond to an order for documents within 30 days after the documents are due.[52] In 2009 correspondence tabled from ministers in the Health and Ageing portfolio indicated a misconception about this provision by claiming that it effectively grants a 30 day extension on every order for documents.[53] Repetition of the claim suggested the misconception would continue to be used as an excuse for non-compliance and when this occurred again in 2010, the President wrote to the minister concerned correcting the misinterpretation. The correspondence was tabled in the Senate.[54]

The Senate occasionally passes resolutions calling for the production of documents, such as reports on particular matters. These resolutions which “call for” documents are not technically orders for documents, but governments often respond to them as if they were.[55]


21. See below, under Resistance by government to orders.
22. See SD, 27/9/1993, pp. 1165-6; 9/5/1996, J.139; 5/3/1997, J.1560-1.
23. 28/9/1995, J.3887; 17/10/1995, J.3935; 11/9/1996, J.562; 7/3/2001, J.4050; 8/3/2001, J.4065; 10/3/2005, J.463-4.
24. 30/5/1996, J.279.
25. 29/11/1996, J.1161-2.
26. See Chapter 12, Legislation, under Commencement of legislation.
27. 25/3/1999, J.626; 18/9/2002, J.748-9, 761.
28. 20/6/2001, J.4358-9; 26/9/2001, J.4976; 27/9/2001, J.4994-5; 18/9/2002, J.757; 12/12/2002, J.1344; 4/12/2003, J.2851.
29. 29/10/2003, J.2641; the then government subsequently refused to comply with this order, but the information was pursued through estimates hearings: SD, 12/2/2004, pp. 20168-9; Finance and Public Administration Legislation Committee transcript, 16/2/2004, p. 154ff.
30. 24/3/1994, J.1517.
31. J.589-90.
32. PP 45/2007.
33. Measures to Combat Serious and Organised Crime Bill 2001, 27/8/2001, J.4780; for reports under this provision, see 8/12/2005, J.1748; 6/12/2006, J.3271.
34. 28/9/1995, J.3887; 22/6/1998, J.3969-70.
35. 23/11/1988, J.1144; 28/11/1990, J.485; 21/2/1991, J.785; 14/3/1991, J.875; 17/4/1991, J.951; 16/6/1992, J.2443; 11/5/1995, J.3289; 12/8/1999, J.1489-90; 26/10/2009, J.2564-5; 12/5/2011, J.921.
36. 30/8/1999, J.1592; 31/8/1999, J.1607.
37. 16/12/1992, J.3382; 22/6/1994, J.1830; 22/9/1994, J.2214; 20/10/1994, J.2349; 2/2/1995, J.2850; see also 52nd report of Committee of Privileges, PP 21/1995.
38. 2/11/2000, J.3474; 20/6/2001, J.4358-9; 7/8/2001, J.4595; 27/9/2001, J.4994-5; 29/8/2002, J.706; 4/12/2003, J.2851.
39. 14/5/2003, J.1799-1800; response by Auditor-General, 17/6/2003, J.1865.
40. 28/9/1995, J.3887; 22/6/1998, J.3969-70.
41. 25/3/1999, J.626; 12/4/2000, J.2621; 8/11/2000, J.3523; 8/2/2001, J.3910-1; 24/9/2001, J.4925-6; 27/6/2002, J.527; 18/9/2002, J.748-9, 761; 12/11/2002, J.1025; 30/8/2001, J.4846; 14/5/2002, J.322; 15/10/2002, J.874; 9/12/2002, J.1261; 24/11/2003, J.2689; 25/11/2003, J.2713; 10/3/2005, J.463-4; 11/5/2005, J.621; 14/6/2005, J.655; 30/11/2005, J.1461; 7/12/2005, J.1721; 4/12/2006, J.3227; 13/3/2008, J.228; 11/2/2009, J.1594.
42. 11/8/2009, J.2235.
43. 13/4/2000, J.2631; 11/5/2000, J.2706.
44. 28/8/2001, J.4798; 18/9/2001, J.4866.
45. 20/8/2009, J.2362-3.
46. 25/6/2009, J.2192-3.
47. 16/11/2010, J.301-2.
48. 9/2/2011, J.550; Economics Legislation Committee estimates hearing, 2/6/2011, transcript pp. 94-95.
49. For orders, see 26/10/2010, J.206-8, 23/11/2010, J.395-6; for Information Commissioner’s responses, see 15/11/2010, J.280, 9/2/2011, J.540; declaratory resolutions 22/11/2010, J.367, 10/2/2011, J.572.
50. J.2973, 2996-7, 3000; for further precedents of orders to produce documents to committees, see 22/3/1995, J.3106-7; 26/3/2001, J.4084-5; 3/4/2001, J.4152; 5/4/2001, J.4215.
51. 10/3/2005, J.463-4; 17/3/2005, J.566.
52. SO 164(3).
53. 20/8/2009, J.2372; 23/11/2009, J.2816.
54. 17/6/2010, J.3607.
55. 30/9/1999, J.1803-4; 5/9/2000, J.3203; 6/12/2000, J.3753.

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