The power to order documents, both in existence and created for the purpose, is one of the most significant methods of parliamentary inquiry and has deep historical roots. See, for example, orders made by the United Kingdom House of Commons in February 1699 requiring the production of lists of persons collecting taxes on salt, beer, ale and other liquors.

The Senate often uses this power to require ministers to produce documents about public affairs, which can then be scrutinised and may uncover further avenues of inquiry. This contributes to effective parliamentary oversight—but of course, governments do not always provide documents enthusiastically.

How do these orders work?

On 6 September 2022 Senator Faruqi proposed an order for the production of documents on Australian Research Council funding schemes (photo: Auspic)

The Senate inherited its inquiry powers (including the power to order documents) from the House of Commons via section 49 of the Australian Constitution.

An order for documents typically begins as a notice of motion lodged by a senator, which is then agreed (or negatived) by the Senate. Orders therefore reflect the majority will of the Senate, unlike other inquiry methods that can be pursued by a lone senator (such as questions on notice).

Orders usually require that documents be 'laid on the table', which means formally presented to the Senate and published accordingly. Alternatively, the Senate can order that documents be provided to a committee, which may choose to accept them confidentially. An unusual order in February 2021 required the Department of Defence to provide documents to the Parliamentary Budget Office, which would use that information to produce an expenditure forecast.

In the last parliament the Senate agreed to 172 orders for documents, spanning topics that reflected the political issues of the day. The Senate has already made 20 orders since the new parliament commenced in late July.

Compliance

Governments sometimes refuse to provide documents ordered by the Senate, usually on the basis that providing them would not be in the public interest.

The Senate has long taken the view that there is no category of documents that is immune from production. While recognising that some documents should not be disclosed, the Senate has repeatedly insisted that claims to withhold documents in the public interest are merely that—claims—to be determined by the Senate (not the government). As former Clerk of the Senate, Dr Rosemary Laing, explains, 'it cannot be reasonably argued that the supervised body is able to set the terms of the supervision or that the supervising body must accept those terms.' A series of resolutions beginning in 1975 emphasise this, including a 2009 resolution setting out the procedure ministers should follow if claiming public interest immunity.

Possible remedies

If a minister has not complied with an order within 30 days of the deadline, standing order 164(3) enables senators to seek an explanation from the minister and then debate that explanation (or the minister's failure to provide one).

Sometimes, disputes can be resolved via compromise. In late 2018, following repeated Senate orders, the Commissioner of Taxation agreed to provide documents to the Economics Legislation Committee on the basis that the committee would treat them confidentially.

If a minister continually refuses to provide documents, the Senate may pursue the matter through political or procedural means, which may include:

• unrelenting political attack
• censure motions
• obtaining the information through committee hearings
• delaying the consideration of certain legislation until the documents are provided.

A continuing issue

The Senate's use of orders for documents has waxed and waned since 1901, but it already seems they will be a regular feature in the new Parliament.

In August 2022 the Senate ordered the government to provide 'a statement outlining' certain statistics relating to COVID-19 vaccines. The government's response challenged the validity of the order and said 'The Government does not accept that a minister can be compelled to make a statement through an order for production of documents.' This is at odds with the view endorsed by the Senate Privileges Committee that 'such orders also cover documents created for the purpose (a "return to order") from information available to the person to whom the order is directed' (see PIB 363).

Indeed, many past orders required the creation of documents. One well known example requires each minister to provide 'a letter of advice' every six months confirming that departments they administer have published a list of their new files, to assist people making freedom of information requests.

It remains to be seen how the Senate will respond to such claims in the future.

More information

To learn more about Senate orders for production of documents, see:

• 'This Is a Procedure on Which We Should Not Lightly Embark': Orders for the Production of Documents in the Australian Senate, 1901 to 1988.
• Occasional Note, February 2011—Orders for the production of documents: origins and development of the power
• Guide to Senate Procedure No. 12: Orders for production of documents.
• Standing order 164 in the Annotated Standing Orders.
• 'Orders for documents and public interest immunity' in Procedural Information Bulletin No. 358.
• Discussion in Odgers' Australian Senate Practice.