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Chapter 18 - Documents tabled in the Senate
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.
(See Chapter 19, Relations with the Executive Government, under Claims by the
executive of public interest immunity.)
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 (J.1497-8; J.1509).
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” (19/5/1993, J.201-2; 20/5/1993,
J.217-8, 221; 24/5/1993, J.238; 27/5/1993, J.301-3).
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. (24/3/1999, J.612-13)
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 (20/6/2001, J.4358-9). A claim by the government that the order
was beyond the power of the Senate was rejected and later tacitly abandoned
(26/9/2001, J.4976; 27/9/2001, J.4994-5; report of the Finance and Public Administration
References Committee on accountability to the Senate in relation to government
contracts, PP 212/2001, advice from the Clerk of the Senate in that report,
opinion by the Australian Government Solicitor’s Office and comments by the
Clerk on that opinion, published by the committee; report by the
Auditor-General, 18/9/2002, PP 367/2002; further report by the Finance and
Public Administration References Committee, 12/12/2002, PP 610/2002;
reports by Auditor-General, 5/3/2003, PP 23/2003; 11/9/2003, PP 183/2003, and
subsequent reports; order amended 18/6/2003, J.1881-2; 26/6/2003, J.2011-13;
4/12/2003, J.2851).
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 (16/5/1991, J.1049-50; 28/5/1991, J.1053).
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 (31/8/2000, J.3169; 7/9/2000, J.3253).
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. (1/11/2000, J.3462; 2/11/2000, J.3479; 27/11/2000, J.3586)
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.
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. (See also Chapter 19, Relations with the Executive Government,
under Remedies against executive refusal of information.)
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