DOCUMENTS
Senator WONG (South Australia—Minister for Foreign Affairs and Leader of the Government in the Senate) (15:03): I would just make this point, and I make it for you, for the chamber staff and for others: it is a courtesy and it is a convention, but we have courtesies and conventions in this place that have enabled parties to work cooperatively even when we disagree and even when there are accountability mechanisms being put in place.
So I would say to you that this place works a lot better if people do avail themselves of the usual courtesies and the usual conventions. If you indicate to people that you are going to ask a question, I can say to you we genuinely try and ascertain an answer or at least understand why the question hasn't been responded to so we can deal with it. I would suggest that, notwithstanding whatever the strict reading of the standing orders is, it would be useful in this place if some of these conventions could be observed.
Senator PAYMAN: I move: That, in light of the Minister's not being present to provide an answer or an explanation, the Senate: (a) notes that the Minister representing the Minister— Senator PAYMAN: I move: That, in light of the Minister's failure to provide either an answer or an explanation, the Senate: (a) notes that the Minister representing the Minister for Communications has failed to produce documents ordered by the Senate to be laid on the table relating to the Minister for Communications' travel to New York in September 2025; (b) further notes that, in the response to order for the production of documents no. 321 (OPD 321), the Minister for Communications chose to interpret the wording— Senator PAYMAN: I'm reading the motion.
It's being circulated as we speak. We've given it to the chamber staff. I move: That, in light of the Minister's failure to provide either an answer or an explanation, the Senate" (a) notes that the Minister representing the Minister for Communications has failed to produce documents ordered by the Senate to be laid on the table relating to the Minister for Communications' travel to New York in September 2025; (b) further notes that, in the response to order for the production of documents no. 321 (OPD 321), the Minister for Communications chose to interpret the wording of OPD 321 differently to previous orders and subsequently did not produce documents that would otherwise have been produced; (c) rejects the claims made in the explanation provided to the Senate on 9 September 2026 in relation to this matter as unacceptable and, at points, factually incorrect; and (d) orders the Minister representing the Minister for Communications to table documents between any two of the entities listed in OPD 321 that are otherwise in scope of the order, by no later than 5 pm on Monday, 26 October 2026.
For the benefit of my colleagues and all the senators here, the text of this motion is being circulated now. The withholding of documents from the Senate without reasonable excuse is a serious matter. The Senate has on several occasions censured ministers for failing to comply with orders for the production of documents.
Unfortunately, despite this, I understand that such a course would not be supported in this instance, and so I have not moved that way. The response to OPD 321 constitutes not only a failure to comply but a deliberate and unjustified attempt to obstruct the Senate in its scrutiny of the executive. To bring everyone up to date on the history of this order, on 4 February 2026, the Senate agreed to an order for the production of documents relating to the Minister for Communications's travel to New York in September 2025 with a member of her staff and a public servant.
On 4 March 2026, a response to this order was tabled in the Senate. In the response, a letter from the Minister for Communications to the Special Minister of State notes: My department and eSafety have conducted a search of their systems and have not identified any documents that appear to fall in scope of the Order. In July, my office lodged a freedom of information request with the Department of Infrastructure, Transport Regional Development, Communications, Sport and the Arts for the same documents within a smaller timeframe.
The department asked for the scope of the request to be reduced and ultimately refused the freedom of information request on the basis that too many documents existed. The department's FOI officer noted that as many as 700 documents existed, with the bulk of these being emails. Obviously, this discrepancy between the response to the FOI request and the response to OPD 321 was concerning.
When I returned from maternity leave in September, the Senate agreed to my motion ordering the Minister representing the Minister for Communications to attend the Senate and provide an explanation as to this discrepancy. On 9 September, Senator McCarthy, in place of the minister, provided an explanation, which is referred to in part (c) of this motion as 'unacceptable and, at points, factually incorrect'.
I will now address the points made by Senator McCarthy in the explanation. Senator McCarthy said: First, the order for the production of documents sought communications involving three parties: the minister or her office, the department and the eSafety Commissioner. It was therefore directed at communications between all three parties.
By contrast, the FOI request sought communications between the minister or her office and the department without requiring the eSafety Commissioner to be involved. That broader formulation may have reasonably captured a larger volume of documents. This was the same argument used by the department in response to a question on notice on this topic, but it is inconsistent with the minister's previous responses to OPDs.
The Minister for Communications has previously taken this phrasing 'X, Y and Z' to mean 'between any two of those entities', not 'between all three entities'. The only reason the minister would randomly choose to interpret this wording in a different way was if she wanted to hide documents from the Senate. I want to put on the record just how unusual this interpretation is for the minister.
The minister interpreted this phrasing as referring to documents between any two entities in her responses to OPD 37, OPD 215, OPD 323 and OPD 425. Other ministers have interpreted this phrasing in the same way, during this parliament alone, in responses to OPDs 36, 90, 208, 223, 313, 315, 316, 317, 387, 399, 440 and 442. Why did the minister use a special interpretation for this specific OPD around her travel to New York, which, in response to OPDs that were made on my motion, she has not used before or since and which her fellow ministers have never used?
The only explanation is that she desired to withhold these documents from the Senate but had no grounds to make a claim of public interest immunity. The key question that needs to be answered is: even if the minister had changed her mind on the interpretation of this phrasing in good faith, why did she not disclose this at the time? She interprets the wording one way four times in a row, then secretly changes her interpretation, and doesn't release the documents that she would have previously, and only discloses this after being asked.
If you look on the parliament website's OPD page, under OPD 321 it says, 'No documents exist'. While this is not an expression of the view of the Senate, it is clear that, to a reasonable person, the minister's response indicated that no documents exist—despite the fact that documents within the scope of the order do, in fact, exist. This may have had the effect of misleading senators, and, indeed, the Senate, into thinking no documents existed between any two entities listed in the order, as this is how the minister has previously responded to other orders.
The failure to disclose this is incredibly serious, and the Senate must not allow this sort of tricky conduct to stand. Senator McCarthy's second point was: Second, the timeframes between the two differ. The OPD was agreed to on 4 February 2026, meaning its scope was necessarily confined to documents captured up to that point.
The FOI request was lodged on 13 July 2026 and therefore extends across an additional five months of records. It is reasonable to expect that a request covering a longer period may identify more documents. This argument is based on a lack of knowledge about the FOI request in the first place.
As I mentioned earlier, prior to refusing the request the department asked that the scope of the request be reduced. The scope consultation process led to the reduction of the FOI request scope to only capture documents created between 30 August 2025 and 30 October 2025. This falls entirely within the OPD scope of all documents created before the order was agreed to on 4 February 2026.
As such, the decision made by the department on the FOI request—the 700 documents they identified were from within this period. Finally, Senator McCarthy said: As a point of clarification on the number of documents referred to in the motion before us now, I am advised that the department did not identify 700 documents; it identified 90 documents that may have been in scope, with a combined page count of approximately 700 pages … Senator McCarthy was advised incorrectly.
The order of 8 September 2026 refers to 700 documents as this was the final figure provided by the department in the letter conveying its decision on the FOI request on 14 August 2026. The letter says, 'Preliminary searches in relation to your revised request have identified 700 documents, with most of these records being emails.' Now that we have dealt with the background of this issue and debunked the government's claims, let us consider what guidance we can find in precedence of the Senate.
The natural starting point is resolution 6 of the privilege resolutions of 25 February 1988. Paragraph 8 of that resolution establishes a requirement, stating: A person shall not, without reasonable excuse, disobey a lawful order of the Senate or of a committee. Paragraph 13 establishes: A person shall not, without a reasonable excuse: … … … b. refuse or fail to produce documents, or to allow the inspection of documents, in accordance with an order of the Senate or of a committee.
It has been claimed that no documents within the scope of this order exist, but the department acknowledged through a freedom- of-information request that hundreds of documents exist. All excuses offered by the government have either been incorrect or inconsistent with previous behaviour. I want senators to be aware of how the Senate has responded to ministers disregarding orders for the production of documents without justification in the past.
On 5 March 2014, Australian Greens senators supported a successful motion moved by Senator Wong, which proposed to censure the then assistant minister for health for, among other things, failing to comply with an order for the production of documents. On 12 September 1991, senators from the Liberal and National parties supported a successful motion moved by then senator Hill, which proposed to censure the Hawke government for failing to comply with an order for the production of a document.
I suggest that it would be a very serious thing for the Senate to allow, on a dubious basis, the defiance of an order of the Senate without a reasonable excuse. Orders for the production of documents became an issue of contention in the 47th Parliament and continue to be so in the 48th Parliament. The Senate Standing Committee on Procedure's inquiry into OPDs has been going on for nearly an entire year now.
There is a need to improve the way that OPDs are dealt with, but the Senate cannot permit this sort of flagrant disregard for the privilege resolutions to go unanswered. The Senate must require the minister to comply with OPD 321 in order to protect the integrity of its processes.