What you need to know about a Standing Order 52 and government disclosure

The process begins when a member of the Legislative Council moves a motion under SO52, specifying the documents sought and the timeframe for their production. If the Legislative Council agrees to the motion, the Clerk of the House formally notifies the Premier’s department who then contacts the affected government agency.

The affected government agency is usually required to:

• identify all documents within their possession that are responsive to the SO52;
• review each of the responsive documents carefully and consider whether any protective claims need to be made over them;
• prepare relevant indexes identifying, among other things, any claims of privilege over the responsive documents;
• certify that reasonable searches have been conducted and that all relevant documents have been produced;
• prepare privilege submissions; and
• produce the documents to the Premier’s Department by the deadline specified in the SO52.

Unless a claim of privilege is made over a document, it is tabled in the House and made available to members and to the public.  

As a senior executive or the responsible officer of the affected government agency, you may be responsible for coordinating searches for documents in response to a SO52 and making appropriate privilege claims over the responsive documents. In our experience, the documents caught by the scope of a SO52 can range from a handful to tens of thousands – each of which require careful review and, if necessary, redaction. 

Government agencies may claim privilege over certain documents, typically on one or more of the following grounds:

• legal professional privilege: this includes both advice and litigation privilege. 

• public interest immunity (PII): this is a well-established common law principle generally only available to government agencies. The categories of PII are not closed and some recognised categories include:

  • damage to intergovernmental relations;

  • harm to government discharging its functions;

  • commercial in confidence information; or

  • prejudice to national security.

• parliamentary privilege: this is an immunity to the individual Houses of Parliament of NSW, including their members and committees. This immunity can attach to freedom of speech and debates without external review and can include, for example, budget estimates briefings or Ministerial briefing notes.

• Cabinet confidentiality: according to the NSW Cabinet Practice Manual, Cabinet is described as

  ‘the apex decision-making body of the NSW Government. It is the forum where the Premier and Ministers discuss and decide issues of significance to the state, and set the government’s policy agenda, legislative program and strategic direction. Cabinet is underpinned by the longstanding Westminster conventions of collective Ministerial responsibility, Cabinet solidarity and confidentiality of Cabinet deliberations.’

  In the leading case of Egan v Chadwick (1999) 46 NSWLR 563, Chief Justice Spigelman identified two primary categories of Cabinet documents – ‘Class’ and ‘Content’. A Class document includes documents which disclose the deliberations of Cabinet (ie Cabinet minutes), whereas Content documents include documents prepared outside of Cabinet to assist, or to submit to, Cabinet. Cabinet documents are not required to be produced. 

• personal information: this is now expressly captured by Standing Order 52(7) which provides:

‘(e)       for the purposes of standing order 52, personal information which should not be made public unless it is in the public interest to do so includes:

            (i)         mobile telephone numbers,

            (ii)         private email addresses,

            (iii)        home addresses,

            (iv)        bank account details,

            (v)        signatures,

            (vi)        tax file numbers.’

When privilege is claimed, the documents are only made available to members of the Legislative Council and they cannot be published without a further resolution of the House. However, any member of the Legislative Council may dispute a claim of privilege. 

When this occurs, the documents are referred to an independent legal arbiter, usually a retired judge or senior counsel, who then reviews the documents and provides a report to the House on whether the claim is justified. During this process, the agency generally has the opportunity to provide further privilege submissions in support of their privilege claims. 

While the SO52 process is a powerful tool to monitor government decision-making, it is not without its challenges. Agencies often face tight deadlines, typically between seven and 28 days, to comply with the SO52. 

Depending on the scope of the SO52, compliance can be resource-intensive, disruptive to the agency’s day-to-day operations and can involve coordinating with internal and external stakeholders, as well as other departments and agencies. This becomes particularly challenging when the scope of the SO52 captures a significant amount of documents. 

In many cases, the SO52 process is used to gather documents for the purpose of a Parliamentary Inquiry. The agency should be alive to various sensitive documents that can impact them and the Minister responsible.

Not complying with a SO52 is considered a failure to comply with a lawful order of Parliament and can be interpreted as contempt of Parliament.  

Parliament may escalate non-compliance by:

• summoning officials to explain the non-compliance, 

• referring the matter to the Privileges Committee for investigation, or 

• the House may pass a censure motion against the responsible Minister. 

These outcomes can have both procedural and reputational consequences and may also attract unwanted media attention and scrutiny. 

Agencies should be ready to comply with a SO52 without delay. Key preparation steps include:

• document management: maintaining robust document management systems;

• comprehensive searches: conducting detailed searches of records with the understanding that the adequacy of the documents produced is open to challenge and scrutiny; 

• engage early: engaging with relevant internal and external stakeholders as soon as possible after receiving a SO52; and

• seek expert legal assistance: engaging legal providers as appropriate to help manage the document review task and production process.