Thursday, 14 August 2025
Committees
Procedure Committee
Committees
Procedure Committee
Reference
That this house requires the Procedure Committee to inquire into, consider and report on the following proposed sessional order relating to production of documents by 18 November 2025:
X. Variation of scope of order for the production of documents
After standing order 10.01 insert:
(1) The Secretary, Department of Premier and Cabinet, may write to the Clerk at any time up to and including the seventh day prior to the date for the return of documents and request that the scope of an order be varied.
(2) A request to vary the scope of an order for the production of documents must include –
(a) reasons why the timeframe for the production of the documents cannot be met; and/or
(b) reasons why the terms of the order are likely to result in the production of a large number of documents reasonably believed to be irrelevant to the intent of the order for documents.
(3) The Clerk will provide the request and any accompanying documents to the President and the member who moved the original order for documents. The Clerk will advise all members and publish notification that a request has been received.
(4) When a request under this Sessional Order is received –
(a) the original order and the date for return of documents is suspended; and
(b) if agreement is not reached within 14 calendar days, the original order stands and the documents ordered are to be produced to the House by the original due date, or if that date has passed, within a further seven calendar days.
(5) When an agreement is reached between the member and the Secretary, Department of Premier and Cabinet, and is certified by the President, the Clerk will advise all members and publish the terms of the agreement.
(6) On the next sitting day the President will report the agreement to the House and table all relevant documents.
(7) The President will then propose the question to the House “That the varied terms of the order be agreed to”. This question may not be amended or debated except for the member who moved the original order and a Minister may make a statement of up to 5 minutes each.
(8) If the question is resolved in the negative, the original order remains in force.
Thank you for the opportunity to deal with the motion in my name about variation of scope of orders for the production of documents and ultimately a referral for the Procedure Committee to inquire into, consider and report on some changes to sessional orders, which deals with some of the conversations that we have been having – or not having really – on how we can better collectively deal with documents requests. Hopefully we get some agreement today. This is something that I have had on the table for some time, the opportunity to explore improvements for document processes. The Procedure Committee obviously is an appropriate vessel to have proper, considered discussion and determine suitable outcomes. I happen to be a member of the Procedure Committee – I have been for a long time – and Ms Terpstra is an eager member on the Procedure Committee, so we are looking forward to some of these discussions.
What the Procedure Committee does a lot more effectively than the conversations that we have had in here, whether it is question time or not, is give the opportunity to sit down, go through the process of what is happening now and look at the bottlenecks and what the issues are. I am often on my feet explaining that the volume of documents is just drowning public servants. Not only is it the time to identify them, but then the numbers of documents and having to go through them in relation to whether there is an appropriate reason to withhold them. There very often is, and it is not because you necessarily want to withhold the documents. But if they contain private information or commercial-in-confidence matters and the like, they are actually really important for the functioning of government to be protected. But that is timely – it takes time – and that is where we have got a bit of a problem in people saying that they want documents. As we have indicated, we do not actually object to any of those requests, but they are causing a bit of a backlog. There are some requests that are just so voluminous that actually the advice is that you would have to recruit 20 new people just to do one of the requests. I will not go on too much about the concerns that I have already previously put on the public record. I do think that the Procedure Committee is a good opportunity to flesh some of this out. We have got the ability for clerks to give us advice on some other jurisdictions and the like. It is something that we have been looking at just from my office as well. So I think it would be a good opportunity to have those conversations.
I do just want to put something on the record about executive privilege. It is often thrown around as though it is something that we use as a shield. There have been instances where we have got advice about executive privilege for documents that it would have been helpful and in the interests of government, from a political perspective, to release, and we have got advice that said it was executive privilege and we could not. So I put that in the context of it not being something that is just applied because we want it to be applied; it is actually the advice we get from the departments. I do not sit there and do the initial run-through of the documents; that is not my job. It is the advice of the departments through DPC to give us that advice, and that is very often what happens in these instances. Documents that contain confidential information which reveals directly or indirectly the deliberative processes of cabinet are very often appropriate to be withheld or indeed redacted. Documents that contain confidential information which reveal high-level confidential deliberative processes of the executive government whose release would be contrary to the public interest is another often important principle that we cannot just throw out the door. But I do acknowledge that we are trying to balance that with accountability and transparency.
There is a conflict in the way that this chamber is trying to deal with documents, because we have got competing interests that do not necessarily have to be competing. I think there are ways to make sure that we can respond in a more timely manner, because we can get to the crux of what people are actually after. Therefore I would prefer not to be accused of being secret. That is not what is happening here. It is literally a process and procedure that, without creating an entire new department that deals with documents, is just not, in my view, in the taxpayers interest to continue along.
I do look forward to productive discussions around the topic. As I said, I am a member of that committee, and I think there are a lot of people in the chamber that have got views on this. There are obviously a limited amount of members on the committee, but I think for those that wish to have some input we should consider a way of potentially having that brought through. I think there is a vacancy on the crossbench. I am sure that that will be fought out between – no, I think you have already nominated someone. There we go. So I think there will be an opportunity that interested opposition members can funnel their ideas through. I think, Mr Davis, you are a member – are you a member?
David Davis: I’m not, but I will be.
Jaclyn SYMES: Okay. Mr Davis is coming on. In all honesty –
David Davis: I have been on it many times over the years.
Jaclyn SYMES: I know. That is why I thought you were on it, because we have been on the same committee. With respect, Mr Davis has got more experience than a lot of people in this space in terms of FOI and documents and tenure, so I think the contribution that Mr Davis will have will be valuable in that committee. I actually think we can be quite collaborative here. Will everyone get what they want? That is probably unlikely, but I think we are going to be in a much better position than we currently are.
David DAVIS (Southern Metropolitan) (15:04): I just want to pick up where the Leader of the Government finished. We will support this referral and work sensibly and collaboratively on this matter. I do want to begin, though, by saying that many points that are raised by the Leader of the Government on this matter are tangential to some of the main issues. The main issues are that the government does not provide the information in a timely way. Sometimes requests are large – I accept that – and that can be a problem. I do not deny that for one second. Some are tiny – single documents – and can be provided and are not, and the time period is huge. So the first thing is: sure, there are issues here, and sure, the chamber can engage in a dialogue with the Department of Premier and Cabinet and we can have some reform there. I do not disagree with that. But the fact is that the government has not provided many documents when they could have.
Ms Lovell gave a very good example in the chamber yesterday of New South Wales – Albury–Wodonga documents, health service documents, a joint health service between the states administered by Victoria. There was a New South Wales Legislative Council documents motion, and they gave them the documents, but here they did not. And you are asking: how does that work? The standing orders here are modelled on New South Wales, so one of the things the committee could do is actually go to New South Wales, to the Legislative Council, and have a good talk to the clerks, have a good talk to the arbiter and have a good talk to the MPs on both sides. It was a Liberal government there until relatively recently, and they provided documents and allowed arbiters to administer decisions on documents for a number of years. My point here is: it is fair enough what the Leader of the Government is saying, but it is tangential to the real problem we have got here. There is a failure to allow some arbitration of these matters by an independent, esteemed person, and we would leave that to the clerks to pick someone – a former judge, whatever. So it is tangential. I would say lots of reform can happen, but the central thing is the government needs to actually provide the documents.
I am going to point to some things the leader said about advice. Bureaucrats inherently are conservative in their advice on these matters. There are some good things in that, but when it comes to transparency and accountability, that can be problematic. There is advice coming from bureaucrats, and I accept that sometimes that advice says, ‘Don’t release it.’ But actually government can make a different decision on many occasions – a thoughtful, different decision. I just think the shield of ‘It’s advice from bureaucrats’ is not quite enough. In the end it is a government decision, and it is a government decision to, in most cases here, block the information.
I am going to use again the most recent example of documents that were provided in part, the Hastings offshore wind documents sought through the chamber in February 2024. We got them just a couple of weeks ago. One big tranche of documents contained a few redactions; I do not have any quibbles with that. But my question is: why did it take that long? There were 38 documents or something. It was just not a huge number of documents. And then there is another tranche that we cannot have. We look at that, and I can see that some may well be cabinet documents. I am not unalive to the issue of cabinet and other executive privilege. I think that is –
Jaclyn Symes: But to get to the 38 they had to weed out so many more. It is not as though it is just the 38.
David DAVIS: Well, no, there is a list of ones that were released, about 38, but there is another list that was not released.
Jaclyn Symes: That is why it took so long, because of all the ones that had to be on the list. That is the problem.
David DAVIS: I do not think that is right. No, there are two lists. One list was provided. It just could not have taken that long to provide those documents – it just could not, in any realistic world. The decision to withhold another tranche of documents is another debate, and I would argue that executive privilege –
Jaclyn Symes: It was the one documents request.
David DAVIS: It is, but it is split in half because you have treated one lot of documents – you have said you can have it, but –
Jaclyn Symes: We are going to pick this up in the Procedure Committee.
David DAVIS: ‘Yes, you can have it,’ the government has said –
The ACTING PRESIDENT (Gaelle Broad): Order! I just remind the members to go through the Chair. It is not a conversation.
David DAVIS: The response from the Leader of the Government in this case was, ‘You can have one tranche of these documents, but you cannot have the other one because of executive privilege.’ There are two questions: how you treat the executive privilege ones – the claims – some of which will no doubt be reasonable and some of which, in my view, are patently not. But then there is the tranche that they released. My question is: from February last year through to about a month ago, how is that possible? These are documents you have released, so I just cannot see that it takes that long. We can do it more quickly, I think, honestly. Time, obstruction, failure to arbitrate – these are the issues. I accept there is advice from bureaucrats. I do not know that we can always take bureaucrats as gospel. New South Wales does it better. My advice to the committee is that we go and have a look at New South Wales.
David LIMBRICK (South-Eastern Metropolitan) (15:10): The Libertarians will also be supporting this referral. I would like to correct a couple of things, though. Maybe she forgot our conversation, but the minister has been saying that no-one had a conversation with her about these scope things. Maybe she does not recall that I had a rather informal conversation with Minister Symes saying that I was very supportive of any mechanism to change the scope of a documents order.
But there are actually a couple of issues here, and they are both being conflated a lot. There is the first issue, which is around scope, and I am confident we can come up with a solution there. I think that this approach will help solve that problem. The other problem is around claims of executive privilege. I, like everyone else I think, acknowledge that executive privilege is a real thing and is not always used to shield the government from accountability or transparency, but the range of things on which executive privilege has been claimed – in particular the example that was brought up yesterday, which is probably the best example, which was in relation to the Commonwealth Games documents motion –
David Davis: 353.
David LIMBRICK: Yes. The documents were identified, and executive privilege was claimed on pretty much everything. I do not accept that that is the case, and I would have challenged that. We did not get the opportunity to challenge that because the government is not following the standing orders of Parliament and giving it to the arbiter and going through that process. What they are meant to do is hand it over to the Clerk, who then gives it to the mover of the motion. Then they can decide whether or not they want to challenge it. Actually the tensions in that process I think are rather good, because the mover of the motion does not want to challenge the claims of executive privilege and go through an arbiter unnecessarily, because they will look like a bit of a clown I think if they do that. So actually there are natural tensions in that process, and as has been pointed out, that process works quite well in New South Wales. I was ready and willing to go through that arbiter process on the Commonwealth Games thing, and I am disappointed that the government did not follow those rules. But this referral will not really address that at all, so I think that is still a problem that many here see as an issue.
On the issue of scope as well, there have been some documents motions which, as Mr Davis pointed out, were for single documents or obviously very small amounts. The most comical example of that was when I used a short-form documents motion to request a report by Better Regulation Victoria about tobacco regulation. Rather foolishly of me I did not realise that that report had already been leaked to a newspaper and had been published and was in the public domain already. And yet I still got a letter saying that it had taken awhile to put together, and they never gave it to me. As it turns out, I did not need the government to give it to me. I just went to the Age website and downloaded it myself and read it. That is a sort of comical example, but clearly that single document would not have taken a lot of manpower in the public service to produce. Clearly the government just did not want to produce it for whatever reason. I do not know; I cannot read the government’s mind, but it is hard to take it seriously when you get examples like that.
I also do have some sympathy for the idea from the government’s point of view that some of these things are a waste of resources if they are very large amounts – the scope negotiation will fix that. But I would also say that part of that is on the government, because when you do these documents motions and you know that you are just going to get a letter saying ‘It’s taking a while’ and then that is the last you hear of it, you do not really take the scope that seriously and zero in on exactly what you want, because you sort of think that the government is not going to do anything anyway. I think if the government had been more diligent in producing these documents, then people moving these motions probably would take more care in narrowly targeting what they are asking for rather than going for this big trawler-net sort of approach. Those are my views on it. I will be supporting this referral, and I hope that the Procedure Committee does some good work here.
Sarah MANSFIELD (Western Victoria) (15:15): The Greens will be supporting this motion as well, and we welcome it. As I said yesterday, I think we are very open to having a discussion around some of these issues that have been raised a number of times by the government as being barriers to producing documents, in particular the scope and timing. So if we need a formalised process – something outlined specifically in the sessional or standing orders that outlines the steps that the government can go through to have a negotiation about the scope and timing – so be it. I feel like ideally we could do that anyway, but if we need that spelt out, we are very willing to have a discussion about that.
We recognise, as Mr Limbrick has said and as Mr Davis said, that some of the requests do result, for whatever reason, in very large volumes of documents – and they are not actually the documents we want either. We do not want every email and every minor little detail on something. There are usually some key documents that we are after with these requests, and having a process where we can have that dialogue to work out how we get exactly what we want and keep that as narrow as necessary is very welcome. So we are happy to resolve that. The government has repeatedly cited this as the key barrier to producing documents, so I would hope that if we resolve this, we will make some progress on seeing documents.
I think I share some of the concerns that have been raised by my colleagues, though, about a number of instances where the scope and timing I very much doubt are the issue. Sometimes it is a single document or a document that may have been sitting around for years, so we know that it exists. It is sitting there and it is one document, so addressing scope and timing is not always the barrier, I think. But let us go through this process.
Further, and this touches on some comments that were made yesterday in this chamber by government members, there were some assertions that the Greens and those on the crossbench and potentially the opposition do not believe in claims of executive privilege. As Mr Limbrick has very well outlined, that is absolutely not the case. We support the government’s right to claim executive privilege. That has never been something we have disputed. There are questions sometimes about whether the application is always appropriate, but we have never been able to test it, and that is the bit that is missing. The government have every right to claim privilege on whatever they like based on whatever advice they want. That is absolutely their prerogative; we have never argued with that. What we do argue with is the failure to follow the standing orders.
Standing order 10.03 has a very well outlined process: if privilege is claimed, those documents go to the mover of the motion. If they wish to contest that claim of privilege based on what they have seen, an independent legal arbiter is appointed and a decision is made about whether privilege applies or not. As has been said a number of times, that is the process that is followed in New South Wales. On numerous occasions the arbiter decides that, no, privilege does not actually apply, and documents are released. On the contrary, at other times that claim of privilege is upheld. It is a process that seems to work well. I think, again, maybe if we address this issue around scope and timing, there will be fewer documents that we have to deal with through this process. Maybe that will go some way to dealing with the government’s concerns around following those steps. I do not actually think the Procedure Committee needs to deal with that issue, because the standing orders are fine on that. The standing orders themselves are not the problem, it is the failure to follow them on that issue, and I do not think there is anything the Procedure Committee can do about that. We just need to see those steps followed.
But hopefully if we address this issue around scope and timing and we can all get in a room and have a proper discussion about it – and I agree with Minister Symes about this – having a discussion outside of the chamber so we can work through it in a collaborative way is the best way to deal with some of these issues. I really look forward to being able to resolve them and come up with a process that everyone can agree on, and that will hopefully mean I will not have to give many more speeches on this subject for the rest of the term.
David ETTERSHANK (Western Metropolitan) (15:19): I will keep my comments very brief, other than to endorse the comments from Mr Limbrick. I think he sums it up very well that there is a mechanism – there is a scope, if you like – and then there is, for want of a better term, goodwill and a commitment to transparency. We welcome this initiative from the Treasurer. We think it is terrific. Let us give it a go, and we will just see whether the spirit of transparency travels with the change to the standing orders. We commend it, and we will be supporting the bill.
Motion agreed to.