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

I rise to make some remarks about the use of orders for the production of documents. It's a longstanding power of the Senate and was, until recently, used sparingly for many decades, presumably to preserve its impact. Odgers says:

Orders for production of documents are among the most significant procedures available to the Senate to deal with matters of public interest …

The government respects the powers of parliament to call for documents, but this is a power that needs to be used responsibly and in good faith. Without both of those things—respect for the power and proper use of the power—how the Senate operates will be compromised.

When you look back historically at the Senate and its practice, the use of OPDs in the first decade averaged around 14 times per year. For the next four decades or so, up until the late 1960s, the practice virtually ceased, as questions on notice and regular tabling of documents meant the ordering of documents was no longer required. During the 1970s and 1980s, the use of the power remained rare, with about 10 orders agreed to by the Senate throughout a 20-year period. The use of OPDs did increase during the nineties and early 2000s but remained low compared with how OPDs are being used in the Senate today. For example, across the Keating government, 53 orders were agreed to. In the first Howard government, 48 were agreed to. In 2006, one order was agreed to throughout the year, and none were agreed to in 2007.

It wasn't until the reform of formal motions in 2020 that the use of the order for the production of documents accelerated to levels never seen throughout the Senate's 125-year history. This power is now being used very differently to the historical practice of the Senate, particularly over the past three parliaments. In the last parliamentary term, the 47th Parliament, over the 155 sitting days that that parliament ran, the Senate proposed 435 OPDs of which 336 were agreed to. In just one term, more OPDs were agreed to than in the Rudd, Gillard and Abbott governments combined.

In this term, the number is even higher, with 130 OPDs moved and 109 agreed to by the Senate in just the first 21 sitting days of the 48th Parliament. In fact, more orders have been agreed to in just 21 sitting days—since July—than in the parliaments of the Fisher, Hughes, Bruce, Scullin, Lyons, Page, first Menzies, Fadden, Curtin, Forde, Chifley, second Menzies, Holt, McEwen, Gorton, McMahon, Whitlam, Fraser, Hawke and Keating governments combined. In fact, more OPDs have been agreed to this week than were agreed to in the 53 years between 1928 and 1981. On just one day in this parliament, the number of OPDs lodged by one senator—and I'm looking straight at him—was the same as the number of OPDs agreed to by all parliaments from the onset of the Great Depression in 1929—

Dave Sharma (NSW, Liberal Party, Shadow Assistant Minister for Competition, Charities and Treasury) Share this | Link to this | Hansard source

Senator Bragg?

Andrew Bragg (NSW, Liberal Party, Shadow Minister for Housing and Homelessness) Share this | Link to this | Hansard source

On a point of order, the minister should know that the standing orders require that she not reflect on another member of this place in a negative fashion.

Dave Sharma (NSW, Liberal Party, Shadow Assistant Minister for Competition, Charities and Treasury) Share this | Link to this | Hansard source

Senator Bragg, I do not consider Senator Gallagher to have reflected negatively. Senator Gallagher, you have the call.

Katy Gallagher (ACT, Australian Labor Party, Minister for the Public Service) Share this | Link to 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.