Wednesday, 18 October 2023

Business of the house

Sessional orders

David DAVIS (Southern Metropolitan) (16:46): I am pleased to move motion 207, which is a sensible, practical sessional order – a modest change to the procedures and practices of the chamber. I move:

That, until the end of the session, unless otherwise ordered by the Council, the following sessional orders be adopted, to come into operation on the next sitting week:

X. Production of documents – short form documents motions with debate

After Standing Order 10.01(3) insert –

and for those who wish to follow this, they can look at their standing orders at page 39, chapter 10, ‘Production of documents’ –

(4) A motion under this Standing Order (other than a motion that imposes a sanction) may be treated by the Council as a short form documents motion with debate. The following short form documents motion with debate procedures will apply –

(a) a member must advise of the intention for the motion to be treated by the Council as a short form documents motion with debate at the time of giving notice under Standing Order 6.01;

(b) a maximum of two motions under this Sessional Order may be debated each day that general business is scheduled to occur;

(c) if additional notices above the number permitted for debate each sitting day are given for short form documents motions with debate, they will be listed on subsequent sitting days in the order that notice was given;

(d) a motion proposed to be debated under this Sessional Order will take precedence at the time prescribed for general business, as follows –

(i) where the House has resolved that certain general business take precedence, no short form documents motions with debate will be called until a member has moved the second reading of any bills for which precedence has been ordered and it has been adjourned pursuant to Standing Order 14.06;

(ii) where the House has not resolved any general business that will take precedence, any short form documents motions with debate will be listed as the first item/s in general business;

(e) the following time limits will apply to a short form documents motion with debate –

(i) the mover of the motion may speak only once for up to six minutes;

(ii) any other member may speak for up to five minutes;

(iii) the total time for consideration of the motion will be up to 20 minutes; and

(f) at the conclusion of debate or after 20 minutes of debate (whichever occurs first), the President will put all questions necessary to dispose of the motion and any amendments.

As I say, this is a very modest proposal. It will introduce a new procedure here to have those short-form documents motions. I hasten to add that in earlier times documents were often debated for very short periods of time – often less than 10 minutes. I think the record is in the order of 5 or 6 minutes for a motion to be dealt with.

Often the mover of the motion would put their case for the documents motion succinctly and then would explain why the public interest was served by this. Sometimes the government or another party may make a short contribution, but often the documents motions were dealt with in succinct, practical, pragmatic style. I note that there is a codified practice here for the provision of documents in this way, and there is also under this section the ability for documents to be tabled in a structured way with an index, and it deals with claims made by government of executive privilege. I note at 10.04 there is the opportunity for the appointment of an independent legal arbiter: that has never been done in this chamber, although in other jurisdictions this is a well-established practice, particularly in New South Wales. I can inform the house that the document production procedures in this house were in fact written by me and others in the period after 2006, and we relied on many of the arrangements in New South Wales as a model to use.

Of course the provision of documents, or the request for documents of the chamber, is an ancient power – the house having the powers of the House of Commons in 1856, the power to call for documents and persons. It is a well-tested power. Indeed in regard to the New South Wales precedents, which have been all the way to the High Court, the Egan case in particular lays out the limits and strengths of the powers. I think the conclusion is that probably the chamber here has greater powers than the New South Wales Legislative Council from which the Egan case emanated, and that was tested all the way to the High Court of the land. The QC in that case Bret Walker was requested by this chamber to give a legal opinion on the powers of the chamber with respect to documents and persons, particularly documents, after the new sessional orders were then put in place in that period, and those legal opinions are actually available to members if they wish to see them. There are two of them: one with respect to the gaming committee and one with respect to the general powers of the chamber. Bret Walker, an eminent barrister – KC I think is what we would call it now, not QC – is a person of great knowledge and experience. He laid out the parameters and the arrangements by which privileges could be claimed over documents and the matters which would legitimately give rise to such privilege claims and those that would not. So it is a comprehensive set of opinions and people ought to feel free to read those, because I think it would inform many in the chamber.

I have just asked the clerks, in particular Annemarie, to lay out some times on the production of documents here. The shortest in this recent period, in the last few years – and this goes back to the 59th Parliament – was one on 10 May, production of documents, John Woodman, and that debate went for 9 minutes. The others in that Parliament: 46, 43, 29. But in this Parliament, there has been a trend to see these time lines creeping up significantly – up to 1 hour and 19 minutes, 1 hour and 39 minutes and such like. Noting the earlier periods where quite short debate times were all that was necessary, I think that a 20-minute debate is a reasonable period of time. The limiting of the number of short-form documents motions to two in any general business session is a reasonable approach to adopt.

As I have laid out, there is a very simple set of steps here. The member who is moving that motion would, when they are reading it out, advise that they want the documents motion – and they would still be able to do a longer form motion – and would seek a short-form motion, and that would be alerted to the house at the time when it is moved. Then the shorter time periods would apply, and the motion would be put. The standard rules about how the government responds would apply, and the rest of the chapter 10 production of documents rules would be unchanged in that respect.

So it is a very modest motion, as I say. It seeks to streamline the approach there to enable the house to move through somewhat more in the way that it did traditionally. I think people used to aim for 10-minute sessions, but 20 minutes seems very reasonable. It enables people to have time to put on the public record the arguments for or against, or why the release of a particular document or set of documents is in the public interest – or indeed if people are opposing a motion, why it is not. So that is the purpose of this modest sessional order change.

Ryan BATCHELOR (Southern Metropolitan) (16:56): I am very pleased to make a contribution with respect to Mr Davis’s proposed motion to amend the sessional orders to change the procedures – or introduce new procedures, I suppose it is fair to say, rather than change existing procedures. I would not want to mischaracterise the proposal before us. It would add an additional form of debate in the chamber to consider an expedited or shorter form – as it has been described here – mechanism to do debates on documents motions in the house.

Mr Davis is correct in his assessment and characterisation of the historical powers that the chamber has with respect to requesting either people or documents be provided to the house in order to satisfy us as members of Parliament about matters that we think are within the public interest, and that is a topic and a central feature of the important role that Parliament plays in holding executive government accountable. No matter who sits where on what side of this chamber, it is a principle that we all should agree with, because it is a fundamental role of the Parliament to act as part of our democratic institutions to hold executive government appropriately accountable. No-one is disputing that. I think the question before us today is: what is the appropriate way for the procedure of requests for the production of documents to be considered by the chamber?

It is fair to say I am relatively new to this place, so I am learning much about its ways of doing business, its idiosyncrasies and its charms. Is that all right, President? Not unparliamentary in any way?

Harriet Shing interjected.

Ryan BATCHELOR: ‘Quirks’ might be a bit too pejorative from where I am coming from; ‘charms’ is probably more appropriate. But also one of the things I am learning is that we are fond of establishing mechanisms to assess how we should do things, and one of them obviously is the Procedure Committee of this place, which has in its remit the delightful task of discussing matters of procedure.

Harriet Shing: It is content-rich.

Ryan BATCHELOR: An absolutely content-rich place, I am sure.

Given the fact that this chamber took the important decision to establish such a committee, I probably feel like it is beholden upon the chamber to have matters seeking to amend our standing and sessional orders and to change the procedures of the house be considered by and come from that committee as recommendations. It is not clear in the contribution that Mr Davis has made today or more broadly whether that normal, standard practice has been followed in this instance. As someone who I know is a stickler for the adherence to good practice in this house, I am sure it is just a mere oversight on Mr Davis’s part that that is not the way this particular motion has come forward. I would have thought that it may have benefited from a more fulsome discussion in the Procedure Committee prior to his moving it in the chamber in this way.

David Davis: It’s not a standing order, it’s just a sessional order.

Ryan BATCHELOR: I am still thinking that it might be something that could benefit from an approach that is one where these matters can be discussed and people can sit and deliberate on whether they would add value to the standing and sessional orders. That has not been done, and that is probably a good enough reason to suggest that we should not be supporting the motion before the chamber today.

The proposal itself would introduce two new procedures: what is described as a short-form documents motion, where a member can propose to have the motion debated for a maximum of 20 minutes; and then an alternative version, I suspect, called a short-form documents motion without debate, where matters can be put –

David Davis: That’s not the notice here.

Ryan BATCHELOR: Isn’t it?

David Davis: No, it’s only the first one.

Ryan BATCHELOR: Okay. This is just the first of the two. I will keep myself to the first: to say that we have got 20 minutes for debate on a documents motion and that is it. Mr Davis was saying that the practice in the past was for debates in this chamber to be shorter than they currently are as a justification for saying that 20 minutes is enough time for members from the opposition, government and the various interests of the crossbench to participate in a debate and that the mover can speak for 6 minutes and everyone else can get up to 5. So in a 20-minute debate you effectively get four opportunities to speak, which is not, I think, enough to represent the interests of everyone in this place. What we would be doing by supporting this is potentially disenfranchising some members from participating in the debate if they either believed or did not believe that the Council, the chamber, should be exercising one of its significant powers, which is to compel the production of documents from the executive.

By establishing the historical importance of having such a power, as Mr Davis did in his contribution, we think it should be beholden upon him in the way that he proposes that power get exercised and the time limits and the constraints that are placed upon it in the terms of the motion before us today that the proposed procedure respects the significance of that power. By placing a time limit on the debate, by constraining members’ ability to contribute by placing such a time limit of 20 minutes on that debate, it does not do that. It may be in a circumstance where people are asked to come into the chamber as the bells are rung and vote on a motion that they have not been given the opportunity to put their perspective on. I am not sure that that is the sort of environment that we want to be creating in this place.

I have nowhere near as much experience in the chamber as Mr Davis, but in the short time that I have been here we have clearly been a place where we have seen people be able to have their say. It is not just one from the government, one from the opposition and then the motion gets voted on, or in the case of the proposal here, one mover and then everyone takes their allotted time, which is 5 minutes – not a lot of time to make a contribution on the exercise of a significant historical power. They may not be able to have their voice heard in a debate, and then they would be expected to come in and vote on the motion.

There are clearly some procedural aspects of the proposal that have not been properly thought through that do require probably more consideration than that which has been given in the way that this proposal has been put forward to us today. Given some of the difficulties that we have seen from Mr Davis today – getting things out in the right kind of way, asking the right kinds of questions – we probably think that there might be a bit of complexity in here that we need to have a bit more of a look at. It should be properly considered. It is not something that the government will be supporting in its current form in this way. We think that the standing orders of the house provide for production of documents motions to be considered and debated, and they often are, so there is really in our view no case for this motion today, and I am happy to have spoken in opposition to it.

Michael GALEA (South-Eastern Metropolitan) (17:06): I rise to speak on this motion and will not be supporting it. We have seen a variety of motions put forward by those opposite, many by Mr Davis himself in this shorter slot that we have at the end of general business on Wednesdays. I have to confess that I was very much looking forward to having further debate on bringing the SBS to Dandenong. I am waiting for the day, Mr Davis, that we can discuss that.

David Davis: I want to bring that on. We’ll try and bring that back. I’m keen to get it back.

Michael GALEA: I will hold you to that. I am very excited to talk about bringing the SBS to Victoria. We sometimes do agree; it is nice for people to see. Perhaps my colleague Mr Tarlamis in particular will agree with me that there is no better place in Australia for the SBS to be than in Dandenong, so we will continue to prosecute this campaign most vigorously.

The motion we have before us today is motion 207 in regard to the standing orders. I will acknowledge from the outset the contribution from my colleague Mr Batchelor. I think he has very well articulated the reasons why I as well will not be supporting it. To briefly go into what this motion would seek, firstly, I understand, and I will be corrected as well, that this is just the with-debate motion; this is not the without-debate motion. Is that correct? It is just the 20-minute one, so the motion for 20 minutes. In Mr Davis’s contribution he referred to the opportunity for members to succinctly talk about these issues. I hope in good spirit Mr Davis will understand why I have some trepidation about anything that has been described as succinct by him, as I would not necessarily ascribe that word to him in this chamber.

I appreciate, as said, the opportunity to address this. I will pick up where I believe Mr Batchelor left off – that the opportunity for all to have their say in this place is something that is very important. One of the quirks that we have – surely not quirky members but the quirkiness of the house that we are in ‍– is that we do all have the opportunity. I mean, this is not, after all, the Legislative Assembly. Who would want to be there?

I will also pick up on an interjection that Mr Davis put forward during Mr Batchelor’s contribution, which was to say, ‘It’s not a standing order; it’s just a sessional order.’ Now, standing order or sessional order, whichever it is, I do not think that changes the seriousness with which we need to approach this, and I would caution against a cavalier or slapdash approach to changing the sessional orders in this manner, even if it is not changing the standing orders as well.

I would say the sessional orders for all intents and purposes, at least until late 2026, will be what we are operating under in this place. So I do urge some caution there, and I do think as well it is important that people in this chamber, as I mentioned, do have their say thoroughly. I do not know whether the forecast will be for a 5-minute debate per member, which would allow four people. I sort of said it in jest earlier, but it would be 30-second debates if every member in the chamber wanted to have their say, but that is part of the reason why I do not quite see how this would be workable. We have a procedure already under the standing and sessional orders for us to have these debates on documents motions, and we have had many of them. We have had many of them this year. We have had some that I believe have gone through and some others that have not gone through, which is all part and parcel of the rigour with which we engage ourselves in this chamber. If that were to be changed, for that to be taken away, I do not immediately see the value.

I also do not immediately see the value of this motion in terms of our priorities. I know those of us on this side often like to aerate our views on various local projects and local initiatives. I obviously like to talk about the Topirum primary school that we are building in Clyde North right now. I like to talk about the level crossings that we are removing, making the Pakenham, Cranbourne and Frankston lines level crossing free by the end of the decade. I like to talk about all sorts of things. I also talk about a certain heritage tree in Beaconsfield quite a bit as well. But these are all things that have come to me from the local community that community members have spoken to me about, in some cases very passionately, and this is what is so beautiful about this place, this chamber in particular, I might add – that we do have the time to fully prosecute the arguments and the debates. Whether it be for something that is of statewide significance – we have had many of those in the last few weeks of sitting as well – or whether it be something that is really important to a particular part of one of the local communities that we represent, that is what makes this place quirky, yes, but also beautiful.

I am not quite sure if we are seeing that same representation from the community – I am not sure how many people have been approaching their members of this place saying, ‘I think we need a new way of doing documents motions in the Legislative Council.’ In my South-Eastern Metropolitan Region I am quite confident that no-one has said that to me, and I could reasonably say that people have not raised that with Mr Tarlamis, Ms Payne, Mr Limbrick and Mrs Hermans as well. I will happily be corrected if anyone in the South-Eastern Metropolitan Region has raised this as a priority for them in this Parliament.

I do not represent the Southern Metropolitan Region, and I will be the first to admit that. Their needs may well be very different, and they may well have raised that with Mr Davis. Frankly I still suspect not, but I think it reinforces the point that on this side of the chamber we do like to engage. We obviously legislate and deal with bills from our side and on Wednesdays indeed motions and bills from members of the opposition and members from the crossbench as well. We have seen today, as with every sitting Wednesday, another mixed array of motions that we have dealt with. I think ‘mixed’ is quite a mild way of putting it, and again that is the beauty of this place. We deal with matters of state, matters of importance to our regions and matters of importance to our state, and I think that is what we should be focusing on.

It is for those reasons too that I think we should absolutely be bringing on debate on bringing the SBS to Victoria, because I know for my region that is something that people really do want to see – some proper representation from our second national public broadcaster that represents multicultural Australia from the heartland of multicultural Australia, and that is the south-eastern suburbs.

Business interrupted pursuant to sessional orders.