164  Order for the production of documents

1. Documents may be ordered to be laid on the table, and the Clerk shall communicate to the Leader of the Government in the Senate all orders for documents made by the Senate.
2. When returned the documents shall be laid on the table by the Clerk.
3. If a minister does not comply with an order for the production of documents, directed to the minister, within 30 days after the date specified for compliance with the order, and does not, within that period, provide to the Senate an explanation of why the order has not been complied with which the Senate resolves is satisfactory:
   1. at the conclusion of question time on each and any day after that period, a senator may ask the relevant minister for such an explanation; and
   2. the senator may, at the conclusion of the explanation, move without notice – That the Senate take note of the explanation; or
   3. in the event that the minister does not provide an explanation, the senator may, without notice, move a motion in relation to the minister’s failure to provide either an answer or an explanation.

Amendment history

Adopted: 19 August 1903 as SO 348 (corresponding to paragraphs (1) and (2)) but renumbered as SO 344 for the first printed edition

Amended: 9 November 2005, J.1380–81 (paragraph (3) added to provide a mechanism for following up non-compliance)

1989 revision: Old SO 358 restructured as two paragraphs and renumbered as SO 164; terminology modernised and clarified

Commentary

Section 49 of the Constitution empowers the Senate to order the production of documents relating to public affairs.[1] SO 164 was originally modelled on the standing orders of the Victorian and South Australian legislative assemblies. Considered a strong lever for scrutinising government activities, the practice of ordering the production of documents is common. For discussion of contemporary practice and examples see Odgers’ Australian Senate Practice, 12^th edition, pp.441 –46.

The power to order the production of documents was exercised by the Senate from its earliest years. Orders were made for documents already in existence as well as for information which was compiled in documents created for the purpose. Over the period 1901 –1908 the average number of orders for documents agreed to each year was 16.6.[2] For the equivalent period at the beginning of the 21 ^st century, the annual average shows very little difference at 17.8.[3] Use of orders for production of documents fell away after the first decade of the Senate’s operations and did not begin to revive until the “VIP planes affair” of 1967–68 brought them back into use as a mechanism for holding governments to account (see SOs 85 and 86).

In earlier years it was common practice for some returns to order to be laid on the table of the Parliamentary Library where senators could examine the documents, after which the documents were returned to their place of origin. The rationale for this now disused practice was that documents generally did not exist in multiple copies, many documents were working files and reproducing them was laborious. As explained by Edwards in the 1938 MS, this practice also avoided the difficulty presented by SO 44 which made tabled documents the property of the Senate and their removal difficult.

Documents tabled in response to the order for production od documents relating to the VIP planes affair

Today’s technology allows easy and efficient reproduction of documents, and tabling copies from originals is accepted and commonplace. Indeed, President Baker ruled that it ought not to be insisted that original documents be tabled when copies were available.[4]

According to Edwards, SO 164 was commonly used as an adjunct to questions seeking information. An order for the production of documents in this sense conveys the view that a Senate majority considers any resistive stance from the executive to be subordinate to the public interest in having documents disclosed. Where detailed information was required, early governments also preferred orders for production of documents to questions because of the resource implications of compiling the information. An order was an indication that a majority of senators had an interest in the information to be compiled – not merely a lone senator!

The amendment to SO 164 in 2005 to include paragraph (3) derived from remedies or proposed remedies associated with individual orders for production of documents, as well as from the similar arrangement applying to unanswered questions on notice in SO 74(5).[5] The key elements are the requirement for a minister to provide an explanation for non-compliance and the right of a senator to move a motion without notice in relation to the explanation or failure to provide it. Although harsher penalties exist, political remedies are generally preferred.[6] When lacking a majority in the Senate, a government faces disruption to its legislative program if it is not forthcoming with information, thus providing a strong incentive to comply. In 2009 and 2010, a minister claimed (in indicating that the required information would be provided at a future date) that this provision in effect granted a 30–day extension for compliance because sanctions were “not enlivened” until this time. The President made a statement on 17 June 2010 correcting the minister's interpretation:

Paragraph (3) of standing order 164 provides a procedure for any senator to seek an explanation from the relevant minister for non-compliance with the order once 30 days have elapsed after the deadline set by the order. It does not limit any other remedy or sanction that a senator may choose to initiate under the procedures of the Senate. It is of no application to the person to whom the order is directed and, in particular, does not provide an implicit extension of time for a minister to respond to the order.[7]