What are the arguments concerning the production of cabinet documents under standing order 52?
The Council’s powers
The Legislative Council has the power to order the Government to produce documents under the doctrine of ‘reasonable necessity’. This power, including the power to order the production of privileged documents, was confirmed by the Egan cases in the 1990s, and is regulated by standing order 52. A comprehensive discussion of these cases can be found in New South Wales Legislative Council Practice and in Chapter 9 of the recently published Annotated Standing Orders of the Legislative Council.
While the Council regularly uses its power to order the production of documents the limits of this power continue to be tested.
The current debate
This year the key area of contention relates to the non-provision of documents deemed to be Cabinet documents by Government, which to date have routinely not been returned in response to orders for papers.
In accordance with the Government’s practice to not provide documents deemed to be Cabinet documents, in 2018 the House received several returns to orders which stated that there were no documents which were lawfully required to be produced according to the terms of the resolution. (For further details see Orders for Papers Update – June 2018.) This led to much debate in the House regarding possible non-compliance with orders of the House, and the passing of a motion censuring the Leader of the Government in the Legislative Council for non-compliance. During debate the Government argued that the documents were Cabinet documents and therefore beyond the power of the Council to order in the first place. The Government pointed to a number of previous orders for papers that similarly had no documents returned as they were considered protected by cabinet-in-confidence (for example the 2005 order for papers regarding grey nurse sharks) and noted that previous Governments from both sides had not provided or made reference to Cabinet documents when responding to orders for papers.
Notwithstanding its position, on Friday 8 June, the Government produced the documents that had been ordered by the House which they claimed to be cabinet documents, stating that the documents were provided ‘on a voluntary basis’.
In response, on Thursday 21 June the House passed a motion rejecting the statement that the documents ‘were provided voluntarily’. The motion asserted that the House had the power to require Cabinet documents and that the test to determine whether a Cabinet document is captured by an order of the House is, at a minimum, that articulated by Spigelman CJ in Egan v Chadwick. Spigelman CJ found that that only those documents which reveal the internal deliberations of Cabinet are beyond the reach of the Legislative Council and differentiated between ‘true’ Cabinet documents and those which have been shown to Cabinet at some point. This is a view that the independent legal arbiter, the Honourable Keith Mason AC QC, similarly relied on in determining a dispute over a claim of privilege on a document returned to the Sydney Stadiums order for papers earlier in the year.
For a detailed discussion of orders for papers in 2018 read Orders for papers and parliamentary committees: An update from the New South Wales Legislative Council, delivered by Mr David Blunt, Clerk of the Parliaments at the 49th Presiding Officers and Clerks Conference in July 2018.