168  Documents quoted in debate

1. A document relating to public affairs quoted by a minister may be ordered to be laid on the table, unless the minister states that the document is of a confidential nature or should more properly be obtained by address.
2. A document quoted by a senator not a minister may be ordered to be laid on the table.
3. An order under paragraph (1) or (2) may be made by motion without notice moved immediately on the conclusion of the speech of the senator who quoted the document.

Amendment history

Adopted:19 August 1903 as SO 353 (corresponding to paragraph (1)) and SO 354 (corresponding to paragraphs (2) and (3)) but renumbered as SOs 349 and 350 for the first printed edition

1989 revision: Old SOs 363 and 364 combined into one, restructured as three paragraphs and renumbered as SO 168; paragraph (3) separated and generalised to apply to paragraph (1) as well as paragraph (2); language modernised and expression streamlined, for example “Minister of the Crown” modernised to “minister”

Commentary

Senator James Drake (Prot, Qld) (Source: National Library of Australia)

Sandwiched between a short discussion on conferences and a rather longer debate on “strangers”, these standing orders received the briefest of attention in 1903 before being agreed to on the voices. They represented new ideas and were not based on any pre-existing standing orders, although paragraph (1) was apparently a codification of the practice in most states. Senator Drake (Prot, Qld) queried the scope of paragraph (2) when he asked whether a senator who read from a newspaper could be ordered to table it. It was accepted that this could indeed be the case.[1]

The practice of the states was in turn based on House of Commons practice where the rule was that a minister could not quote from a state paper or despatch unless he was prepared to table it. The general principle, which applies also to senators who are not ministers, is that members of parliament are expected to contribute their own views and words to a debate. Their right to use someone else’s words is subject to the right of the Senate to see the whole document from which those words were quoted.[2] The obligation on ministers to table so-called “state papers” is subject to the qualification that ministers may avoid tabling such papers by claiming confidentiality.

Rulings of Presidents and recommendations of the Standing Orders Committee[3] over the years have established the following principles in relation to an order for documents:

• it applies to the whole document;
• it applies only to documents in the possession of senators;
• the Chair has no responsibility to judge the accuracy or correctness of a document tabled.

In the 1938 MS, Edwards noted that paragraph (1) had been very rarely used but that paragraph (2) had been plied to great effect during the travails over the transport workers’ regulations in 1931 (also see SO 86) to enforce the tabling of regulations so that a disallowance motion could then be moved. (Edwards mentions the case of Dignan v Australian Steamships Pty. Ltd., 45 CLR 188, which upheld the validity of the Senate’s disallowance action even though notice of the disallowance motion had not been given, as envisaged by the provisions then in the Acts Interpretation Act 1901.) The tactic used was that the regulation in dispute was quoted by an opposition senator, on conclusion of whose speech, another senator then moved that the document quoted from be laid on the table. Such coordinated deployments of the procedure have been relatively common.