Katy Gallagher (ACT, Australian Labor Party, Minister for the Public Service) Share this | Hansard source

I wasn't reflecting negatively on you, Senator Bragg. In one sitting day, the number of OPDs lodged was the same as the number agreed to by all Australian parliaments from the onset of the Great Depression in 1929 to the disappearance of former prime minister Harold Holt in 1967 combined. While there is no doubt that the volume of OPDs has dramatically increased over the past three years, this is not the only issue. There are other serious problems with the way the power is currently being exercised by the Senate.

Historically, the scope of OPDs has insisted on specificity or the seeking of a particular document. The Senate is agreeing to OPDs as the first form of research, rather than as a last resort. OPDs are being used as a fishing expedition, with common use of the phrases 'all submissions', 'briefing notes', 'correspondence' et cetera in relation to a bill or an event, regardless of relevance or feasibility. At least 90 OPDs—almost one-third of all those agreed to in the 47th Parliament—contained this form of language. When former senator Davey sought documents relating to the Murray-Darling Basin water buybacks, it was estimated that there would have been one million documents in the Murray-Darling Basin Authority and 850,000 in the Department of Climate Change, Energy, the Environment and Water. Based on the standard FOI assumptions of it taking one person one minute to review each document, it would have taken 8½ years to review all of the documents in the scope of the order agreed to by the Senate. I think they were given eight days.

In terms of timeliness, along the volume and broad scope of OPDs agreed to, the time to comply with the order is often unreasonable and almost impossible. If I refer back to the 1.85 million documents in the Senators Hughes and Davey OPD above, it provided a mere eight days to respond to the order. Whereas FOI and questions on notice have a set time of 30 days to reply, for OPDs the Senate, on average, does not give the government reasonable time to return for compliance with the order.

Again using examples from the 47th Parliament, order No. 83 sought essentially every document created on the TLA (Measures for Consultation) Bill 2022, with three days to return. Order No. 52 required the Assistant Treasurer to return all correspondence on superannuation industry reform within two days. Order No. 479 gave the Minister for Government Services one day—one day—to produce Services Australia data that the senator moving the OPD, by their own admission, acknowledged did not exist. Order No. 251 gave the minister and the department three days to produce every document, including all briefing material, in relation to estimates hearings.

Finally, if the evidence about volume, scope and time isn't enough to convince the Senate that the current approach to OPDs is absurd and bordering on the ridiculous, surely the next example will. In the last parliament, orders Nos 32, 45, 54, 106, 137, 431, 601, 619, 620, 645 and 680 were all orders where the Senate agreed to the production of documents where links were provided to the information already available online either in part or in full. This practice is continuing in the 48th Parliament, with order Nos 7, 11, 13, 47, 48, 110 and 124 all ordered to be produced where, similarly, links were provided to information already available online either in part or in full. Around five per cent of the OPDs agreed to in this parliamentary term fall into this category.

The 47th Parliament saw the largest number of OPDs ever complied with in any three-year period of any government since Federation. Across the 47th and 48th parliaments, the Albanese government has complied fully or substantially with 120 orders, and any honest assessment of compliance should be assessed against the volume, scope and timeframes that I have outlined above, including those who write reports on it.

The government will continue to work with the Senate constructively to comply with OPDs where we are able to and where it's appropriate to do so, but there has to be some acknowledgement that some documents cannot be produced to the parliament in some circumstances. Odgers' sets out the grounds—that the Senate has at times accepted—when it is not in the public interest to release certain documents. These include documents which would prejudice legal proceedings, law enforcement investigations, national security, international relations or relations between the Commonwealth and the states. It has also been generally accepted by the Senate that the deliberations of the executive council and of the cabinet should be conducted in secrecy to preserve the freedom of those deliberations.

There are also so many additional avenues available to senators to seek access to documents and scrutinise the government aside from the use of OPDs. These include requesting the information from a minister, requesting a briefing, both parliamentary and Senate estimates questions on notice, and, indeed, questions without notice every sitting day.

Parliament, its processes and its role in our democracy are respected and valued by this government, but it is just as important to place on the record the facts about how this power is being used and abused. I know the procedure committee is looking at this, and we are open to working constructively to agree on changes that might ensure OPDs are used appropriately and in good faith.

The government understands how the numbers operate in this Senate. But I do think it's important to place this on the record, on the permanent record of this chamber, so that in the long history of this great institution—where one day, hopefully, the use of the power returns to more normal arrangements—it will be known that there were some in this place that sought to protect one of the Senate's most significant powers from abuse.