Resistance by government to orders
Refusals by the government to comply with orders for documents are usually based on the argument that to produce the documents would not be in the public interest.
On 10 September 1991 the Senate agreed to an order requiring the government to table a tape recording of conversations between a minister and representatives of conservation groups. On 12 September a letter from the Leader of the Government was tabled, stating that the government would not table the tape recording, but attaching an extract from the transcript of the tape recording. The Senate censured the government for its refusal to table the tape. In the terms of the censure motion it was noted that, unlike previous refusals to provide documents in response to orders of the Senate, this refusal was not based on any claim of executive privilege.
On 19 May 1993, after considerable debate on the tendering process for pay television licences, an order was passed requiring the Minister for Transport and Communications to table relevant documents by noon on the following day. On the next day the minister stated that he was unable to comply with the order because of the voluminous nature of the documents, but that he intended to table documents as soon as possible. He also produced a report by a government-appointed inquiry into the matter. His statement and the report were debated later in the day. On the following sitting day, 24 May, the minister tabled a large collection of documents in response to the order of the Senate. After further consideration of the matter, on 27 May the Senate appointed a select committee to inquire into the pay television tendering process, including “the extent to which the Minister for Transport and Communications discharged his ministerial responsibilities”.
In March 1999 the Leader of the Government in the Senate, Senator Hill, was censured by the Senate for not responding properly to an order for documents relating to the Jabiluka uranium mine. The minister had tabled some documents and listed others which were withheld on stated grounds, but subsequently stated that only “key documents” had been produced.
Frequent claims of commercial confidentiality in relation to government contracts led to the continuing order of the Senate for lists of contracts to the value of $100 000 or more to be published on the Internet with statements of reasons for any confidentiality clauses or claims. A claim by the government that the order was beyond the power of the Senate was rejected and later tacitly abandoned.
On 16 May 1991 a minister raised a point of order to the effect that a motion for an order to require the tabling of certain documents was not in order because the documents in question were advices to government which should not be tabled. The Deputy President ruled that the standing orders do not preclude orders for the tabling of advices to government, and that the motion was in order. The motion was passed and the documents were subsequently tabled.
An order of August 2000 for contracts entered into by Telstra allowed the withholding of “genuinely commercially sensitive” material. Documents were produced in response to the order.
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.
Orders for production of documents are among the most significant procedures available to the Senate to deal with matters of public interest giving rise to questions of ministerial accountability or the accountability of statutory bodies or officers.
It is open to the Senate to treat a refusal to table documents as a contempt of the Senate. In cases of government refusal without due cause, however, the Senate has preferred political remedies. In extreme cases the Senate, to punish the government for not producing a document, could resort to more drastic measures than censure of the government, such as refusing to consider government legislation.