167 Publication of tabled documents
The publication of each document laid on the table of the Senate is authorised by this standing order.
Adopted: 19 February 1988, J.504 as SO 362 (in substitution for an earlier SO on a related matter)
1989 revision: Old SO 362 renumbered as SO 167
In one of only two changes to the standing orders between November 1981 and the 1989 revision (the other being the adoption of SO 24 establishing the Scrutiny of Bills Committee), the Senate replaced an older version of SO 167 with the present version as a direct consequence of the passage of the Parliamentary Privileges Act 1987.
The earlier version was as follows:
362. All papers and Documents laid upon the Table of the Senate shall be considered public. Papers not ordered to be printed may be inspected at the Office of the Senate at any time by Senators, and, with the permission of the President, by other persons, and copies thereof or extracts therefrom may be made.
When the Standing Orders Committee examined this standing order in November 1987 it provided a comprehensive account of the issues raised by the standing order in that earlier form. It was taken to mean that tabled documents were public documents and, as a matter of practice, they had been made freely available to members of the public, as well as to senators. The House of Representatives, with a similarly worded standing order, had not made tabled papers freely available.
Sections 2 and 4 of the Parliamentary Papers Act 1908 provided absolute privilege for publication of a tabled document where it was authorised by the House concerned. The privilege also existed independently under s.49 of the Constitution. In the absence of an authorising order, however, there was no absolute privilege for the publication of a tabled document. While the old form of the standing order might be taken as authority for the publication of every tabled paper, the wording was not at all clear. Consequently, a court might find the President or officers of the Senate liable to civil remedies or criminal penalties for the publication of a tabled paper by distributing a copy of it from the Table Office.
The Standing Orders Committee’s report also went into the history of s.11 of the Parliamentary Privileges Act 1987 which provides absolute privilege to the publication of a tabled paper by an officer of a House to members of that House. The report noted that the question of general publication of tabled papers (that is, to anyone other than a member) was left by the Act to be resolved by each House. Section 16 of the Act provides, among other things, that the publication of a document pursuant to an order of a House or a committee is a proceeding in parliament and therefore covered by absolute privilege.
In the absence of any such order, the publication of a tabled paper to anyone other than a member of a House was not absolutely privileged. If the existing practice of making tabled papers freely available were to continue, a clearer standing order was required. If access were to be restricted, a new standing order would also be required. The committee recommended that existing practices continue and that the current form of SO 167 replace the earlier form.
The report was considered and adopted on 19 February 1988.