New NSW Government protocol to avoid another SO52 avalanche

Ashley Tsacalos, William Dawes and Daniel Cacaj
02 Aug 2023
Time to read: 5 minutes

Standing Order 52 (SO52) embodies the inherent power of the NSW Legislative Council (or, Upper House) to compel members or bodies of the Executive to produce documents to the Upper House. The High Court in Egan v Willis (1998) 195 CLR 424 explained, among other things, that principles of "responsible government" support the existence of the power to call for papers as the material sought is reasonably "necessary" for the Legislative Council to fulfil its functions. SO52s had become the norm in the 57th Parliament as an important tool used by the Legislative Council to hold the Government to account and to promote transparency and accountability.

On 29 June 2023, the Hon John Graham MLC, Special Minister of State, tabled the "Protocol for proactive release of government information to Members of the Legislative Council" (Protocol) in the NSW Legislative Council. Minister Graham noted that, in the previous 57th Parliament, 452 orders were made under SO52 (the highest ever), requiring the production of 4,634 archive boxes of documents. However, in the new Parliament, only three SO52 motions have been passed to date.

The Protocol seeks to provide an alternative to SO52s which still allows the Opposition and members of the cross-bench to obtain access to Government documents. The Protocol may disrupt the existing SO52 process as the Government encourages the Legislative Council to make use of a new way to hold the Executive accountable.

What is the Protocol and how does it differ to the SO52 process?

Among other things, the Protocol seeks to avoid (or minimise) SO52s by allowing for the voluntary provision of information to Members of the Legislative Council (Members) through special requests. Although the aim of the Protocol is to facilitate the release of more relevant and targeted information more quickly and to reduce the amount of irrelevant material produced to Parliament, it does not replace the SO52 mechanism.

The Protocol includes the following:

  • regular briefings for all Members during the first sitting week of a two-week sitting block (usually Wednesday during lunch) in relation to government initiatives, policies, programs and decisions;
  • special briefings on specific issues arranged for one or more Members at the Members' request, which can relate to either public information or confidential information (only Members can attend special briefings involving confidential information); and
  • special requests by Members for the production of documents.

A Member may make a special request for documents relevant to a briefing by sending an email to the Government Whip before the Business Committee Meeting. A Business Committee Meeting is a joint meeting between the Parliamentary Parties and is held on Tuesday evening during a sitting week. A Member may make a special request for a document or documents relevant to either a regular or special briefing. A Member can request that a certain sub-topic be addressed in either a regular or special briefing by sending an email to the Government Whip in advance of the Tuesday evening Business Committee Meeting.

Special requests for documents must be for specific information and must:

  • specify a limited date range;
  • relate to a well-defined subject matter (ie., a government initiative, policy, program or decision);
  • refer to specific documents, where possible, or categories of key documents, such as briefs, reports and documents recording reasons for decisions; and
  • not seek documents concerning ongoing investigate functions of government agencies and independent investigative bodies until such investigations are complete.

The Government Whip then arranges a meeting with the relevant Minister in consultation with the Leader or Deputy Leader of the Government in the Legislative Council to discuss the special request.

The process for responding to special requests is as follows:

  • an initial response should be provided, by way of written or verbal briefing, to the Member within 7 days of the Business Committee Meeting at which the special request was tabled;
  • information contained in a document that is relevant to the request should be tabled as soon as practicable and within 14 days of the date of the request if that day is a sitting day, or on the next available sitting day;
  • Ministers should table key documents (such as briefs, reports and documents recording the reasons for decisions, documents that evidence a decision or key steps in an administrative process, or statement of a policy position or approach to be taken) in response to a request; and
  • where more than 14 days is required to table the information sought, the Member and the Minister should use their best endeavours to agree on the timeframe for tabling.

The following should also be noted:

  • personal information within the meaning of the Privacy and Personal Information Protection Act 1998 (NSW) will not generally be tabled in response to a special request and should be redacted where reasonably practicable;
  • where a document the subject of a special request contains confidential information other than personal information (such as commercial-in-confidence information), the Government will consider whether it is possible to table the information voluntarily, or whether third-party consultation and consent is required;
  • where a Minister is unable to table a document voluntarily for reasons of confidentiality and/or privilege, the Minster will work constructively with the Member to formulate an agreed and targeted request under SO52; and
  • documents which may be tabled in response to a special request must be held by a Minister of a NSW government agency that is subject to Ministerial direction and control, and be lawfully required to be produced in response to an order under SO52.

The above process has been summarised in the flowchart below this article.

Key takeaway

It is not yet known whether the Protocol mechanism will be utilised by the cross-bench and Opposition in lieu of the SO52 process. However, given that this Protocol was developed by the Government with input from the Opposition, we recommend agencies prepare for the eventuality of receiving special requests for document production. Here are a few takeaways that will assist your government agency in understanding the new Protocol:

  • Increased communication with the Minister's Office: Under the Protocol, special requests are directed to the Minister via the Government Whip. It is important that government agencies are maintaining an open line of communication with the Minister's Office through their Department Liaison Officers and relevant Ministerial advisors to get as much notification as possible as to when a special request might be received. Importantly, the Protocol outlines that the Minister can suggest amendments to the scope of the special request and the Minister may seek agreement with the Member to extend a deadline for production. Government departments and agencies are likely to be consulted in relation to such matters. Having a constructive and open relationship with key contacts in the Minister's Office will enable government departments and agencies to respond more effectively to special requests and the confidentiality issues that might arise in production.
  • The frequency of SO52s may decrease: It is not yet known whether the cross-bench and Opposition will rely on the Protocol nor how frequent special requests will be. However, given the difficulty in passing a motion under SO52 due to the numbers on the floor of the Legislative Council, the Opposition Members (and Members of the cross-bench) might seek to rely more heavily on specials requests. Further, a scenario may arise where the Minister refuses to comply with the special request (such as for confidentiality reasons) and instead forces the Member to seek the documents under SO52 in the Legislative Council. Nevertheless, if special requests become a viable and efficient method for the Opposition to seek documents from the Government, we may see SO52s decrease in frequency. It could also lead to more targeted SO52 requests in due course which have been informed by the relevant briefing and/or documents already produced pursuant to a special request.
  • Physical or electronic production: Documents must be produced in hard copy under SO52. However, under the Protocol, it is not clear whether the documents would be produced in hard copy or electronic form to the Member.
  • No dispute resolution process: Unlike SO52 which provides a mechanism to dispute the validity of privilege claims in relation to documents produced, the Protocol does not provide such a dispute resolution mechanism. Instead, the Minister is simply required to work constructively with the Member to formulate an agreed and targeted order for the relevant documents under SO52.

The Protocol provides a new mechanism to hold the Government to account and to promote transparency. Therefore, being aware of this Protocol is important for any NSW Government department and agency as is regularly liaising with the Minister's Office so that early steps can be taken in preparation for providing any necessary assistance in response to any special requests. As a result, a strategy and approach should be developed by all NSW Government legal teams in terms of managing special requests under the Protocol. As with SO52s, departments and agencies should also consider, at an early stage, whether a technological solution may need to be deployed to assist with complying with a special request under the Protocol.

Please reach out if you would like any assistance or support in managing a production under the Protocol or any internal education sessions.

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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.