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No. 11 - Orders for production of documents
The
power to require the production of information is one of the most significant
powers available to a legislature to enable it to carry out its functions of
scrutinising legislation and the performance of the executive arm of
government.
Source of the power
The
Senate possesses this power through section 49 of the Constitution which
provides that the powers of the Houses of the Commonwealth Parliament are,
until declared by the Parliament, the powers of the UK House of Commons at the
time of the establishment of the Commonwealth.
Those powers undoubtedly included the power to call for documents. In 1987 the Commonwealth Parliament declared
its powers through the Parliamentary Privileges Act, section 5 of which
provided for the continuation of those powers in force under section 49 of the
Constitution (except to the extent varied by that Act).
History and terminology
In
the early days of the Senate, orders for the production of documents were
frequently used as a routine procedure to obtain information from the
government. Orders were directed at
existing documents as well as at information which was specifically compiled in
response to the Senate’s orders. The
latter were frequently called “returns”, giving rise to the term “orders for
returns” (the documents when supplied being “returns to order”) which is
regarded as synonymous with the term “order for production of documents”.
Such
orders were used by the first Senate to obtain a range of information including
copies of government contracts, details of rents for government offices, and
information about government appointments, defence procurements and
intergovernmental agreements. Details
may be found in Business of the Senate
1901-1906, available from the Senate Table Office.
The
procedure fell into disuse after the Senate’s first decade because governments
supplied information as a matter of course, but was revived in the 1970s and
has been much used in recent years, particularly to obtain information about
matters of controversy.
Basic procedure
Standing order 164 provides that documents
may be ordered to be “laid on the table”.
Most orders for production of documents start with a notice of motion,
which is moved and determined during “Discovery of Formal Business” on any
sitting day (see Brief Guide No. 2—Notices of Motion). Sometimes an order for production of
documents is contained in an amendment moved to a motion for a particular stage
in the consideration of a bill (see Brief Guide No. 9—Consideration of Legislation).
An
order for production of documents has the following elements:
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The
“activating” words, “that there be laid
on the table”, are the core of any such order. Alternative phrases, such as “the Senate calls on the Minister to
table...”, do not have the same force, although a minister may choose to respond as if the
resolution were an order for production of documents.
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The
person at whom the order is directed is identified. This is usually a minister but orders
have also been directed to statutory authorities or office holders. If the relevant minister is a member of
the House of Representatives, the order is directed to the Senate minister
representing that portfolio. If the
recipient of the order is not specified, responsibility for acting on the
order lies with the Leader of the Government in the Senate to whom all
such orders are communicated by the Clerk under standing order 164.
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A
deadline for production of documents is specified. This is essential for the order to be
effective. In specifying a
deadline, the volume and nature of the documents requested should be taken
into account. The deadline may be a
specific time and date or contingent on another event occurring; for
example, an Act commencing or a minister receiving a report. For a permanent order, there may be an
annual or biannual deadline.
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Finally,
the documents are identified. They
may be identified by title or by a description of individual (or classes
of) documents. The order may
specify information, rather
than documents, which may require the respondent to create a document (or
return) containing the information.
In some cases, particular information is excluded from the order to
make it clear that the Senate is not requiring publication of, for
example, cabinet submissions or genuinely commercially sensitive information.
What information can the Senate ask for?
There
are no limits on the documents which may be ordered to be tabled. There are no exemptions or exceptions for
cabinet submissions or national security documents or other classes of
documents for which governments have traditionally claimed public interest
immunity (for the meaning of this term, see below). There is also no requirement that a document
be one that is already in existence.
Are there grounds for non-compliance with
orders for documents?
Although
most orders for the production of documents are complied with, ministers
sometimes refuse to produce all or part of the information on a number of
grounds. It is acknowledged that some
information held by government ought not to be disclosed. However, while ministers may make such claims
for non-production of information, it is up to the Senate to determine whether
the claims are appropriate.
Public interest immunity
The
grounds for refusing to produce information are encapsulated in the generic
term “public interest immunity”. Public
interest immunity, in the legal system, is a concept that recognises that it
would be against the public interest for certain documents or information to be
made public. It is the court’s duty to
balance the public interest in non-disclosure against the public interest in
the court having access to sufficient information to enable justice to be done,
and to make determinations accordingly.
The
concept is relevant to the relationship between parliament and the
executive. Where ministers make claims
for non-production of information sought by the Senate, the Senate reserves the
right to determine those claims. The
possibility that publication of a document may disclose cabinet deliberations,
or prejudice national security or law enforcement operations, or adversely
affect Commonwealth-State or international relations may be grounds for a claim
by a minister of public interest immunity.
These grounds may be accepted by the Senate. The Senate has resolved, however, that it
does not accept “confusing the
public debate” or “prejudicing policy consideration” as grounds for public
interest immunity claims or that all advice to ministers is
“cabinet-in-confidence”. For the
background to this resolution, see Odgers’ Australian Senate Practice, 11th edition, pages 468-82.
Other
frequently-mentioned grounds for public interest immunity claims are as
follows.
—commercial confidentiality
As
the level of interaction between governments and the private sector increases,
particularly through contracting out of functions and projects, commercial
confidentiality is being used more and more frequently as a ground for
withholding information from the Senate and its committees. Although there is a broad public interest in
governments being able to carry out their functions efficiently, including
through arrangements with the private sector, commercial confidentiality claims
were generally made to protect the interests of particular companies and
individuals against potential competitors.
The recent tendency, however, has been for claims of commercial
confidentiality to be made in relation to any
information that is vaguely commercial in nature, rather than in respect of
information whose disclosure could harm
the commercial interests of a person.
The Senate has not accepted such a broad interpretation of commercial
confidentiality and made an order on 30 October 2003 for any claim of
commercial confidentiality to be made by a minister and accompanied by a
statement setting out the basis for the claim, including a statement of any
commercial harm that may result from the disclosure of the information. The Senate may then determine whether the
claim is accepted.
—legal professional privilege
Legal
professional privilege is often claimed to avoid disclosure of advice given to
ministers or public servants by the government’s legal advisers, but the Senate
has not accepted that this category of immunity applies to the relationship
between parliament and the executive. It
applies in a very restricted sense in proceedings before the courts to protect
the relationship between legal advisers and their clients.
—sub judice convention
The
sub judice convention relates in a broader sense to legal proceedings. As practised in the Senate, it is a convention
whereby the Senate agrees to limit debate or inquiry to avoid prejudicing
proceedings that are before a court. For
the convention to be invoked, there must be proceedings actually afoot or
charges laid. There must be a real
danger of prejudice to those proceedings by public canvassing of issues in the
Senate, and the danger of prejudice must be weighed against the public interest
in the issues being discussed. Danger of
prejudice is considered greater where proceedings are being heard by a magistrate,
or where a jury is involved. The
preliminary nature of magistrates’ court proceedings and the perception that
juries are less practised at ignoring public commentary about a case than
judges are the reasons for this greater apprehension of danger. For further details, see Odgers’ Australian Senate Practice, 11th
edition, pages 198-203.
The
sub judice convention may be invoked by a minister to avoid disclosing
information relating to legal proceedings but, again, the claim is one to be
determined by the Senate.
What can the Senate do if a minister refuses
to produce information?
It
is clear that the Senate has the power to enforce its orders. (See Senate Committee of Privileges, 49th Report, available from
the Senate Table Office.) The refusal of
a minister to comply with an order of the Senate may ultimately be dealt with
as a contempt of the Senate, with penalties applied in accordance with the Parliamentary Privileges Act 1987. On most occasions, however, ministerial
refusals to produce information are resolved through political means, according
to the circumstances of the case.
There
are many remedies available to senators to pursue information which governments
are reluctant to disclose. These
remedies fall broadly into two categories: punitive remedies and coercive
remedies.
—punitive remedies
Punitive
remedies are those which make it more difficult for ministers to operate in the
Senate and for a government’s legislative program to be achieved. Examples include:
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impeding
the progress of legislation through motions to postpone consideration of
particular bills, including until after the requested information has been
produced, or by taking up time that would otherwise be spent on government
legislation;
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censure
motions;
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motions
restricting the ability of ministers to handle government business;
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motions
depriving ministers of procedural advantages they enjoy under the standing
orders, such as the ability to rearrange business on any day or determine
the order of government business on the Notice Paper;
- motions
to extend question time or other elements in the routine of business.
—coercive
remedies
Coercive
remedies are those which use alternative means of obtaining all or part of the
information to which access has been refused.
Committees often play a major role in such remedies because of the
ability of committee members to question ministers and officials directly, and
because they can take evidence in camera
(in private). Examples include:
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orders
for the information or documents to be produced to a specified committee,
including instructions to the committee about how the information is to be
handled (received in camera, not
published for a specified period etc);
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orders
requiring particular committees to hold hearings and particular witnesses
to attend for the purpose of answering questions about the information or
documents;
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further
orders for production of the documents, perhaps refining the scope of the
demand or excluding certain kinds of information to encourage compliance;
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motions
requiring ministers to make regular explanations to the Senate about the
reasons for non-compliance with the previous order (or orders) and
providing for motions to be moved, without notice, to take note of such
explanations;
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motions
requesting the Auditor-General, or requiring another third party, to
examine the contentious material and report to the Senate on the validity
of the grounds claimed by the minister for non-production.
All
such remedies require the support of a majority of the Senate.
Need assistance?
Advice
on any of the matters covered by this Brief Guide is available from the Clerk
of the Senate extension 3350, the Clerk Assistant (Table) extension 3020 (for
ministers) or the Clerk Assistant (Procedure) extension 3380 (for
non-government senators). The Clerk
Assistant (Procedure) is also available to assist with drafting notices of
motion for orders for documents.
February
2005
This publication is available electronically at http://www.aph.gov.au/senate/pubs/guides/index.htm
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