Mehreen Faruqi (NSW, Australian Greens) Share this | Link to this | Hansard source

Pursuant to standing order 164(3), I ask the minister representing the Minister for Education for an explanation as to why an order for the production of documents, agreed to on 16 June 2020, concerning support for international students, has not been complied with.

Simon Birmingham (SA, Liberal Party, Minister for Trade) Share this | Link to this | Hansard source

Mr President, on a point of order: relating to standing order 164(3), it is, of course, open to a senator to, at the conclusion of question time, ask a question in relation to non-compliance in relation to an order for the production of documents. I do note that part (3) of standing order 164 is very clear that it is:

If a minister does not comply with an order for the production of documents, directed to the minister, within 30 days after the date specified for compliance with the order…

I'd invite you, Mr President, to look at this particular matter, in that the question and the order for the production of documents that Senator Faruqi raises, indeed, has had a response provided to the Senate. It's a response that identifies that no such documents exist in relation to the order moved by Senator Faruqi and carried by the Senate. Mr President, that is compliance with the order. The standing order that Senator Faruqi raises this matter under requires non-compliance for the questioning to be valid. I'm not sure how a minister is meant to provide for compliance where no such documents exist, other than to inform the Senate of such.

Scott Ryan (President) Share this | Link to this | Hansard source

Are you speaking on the point of order, Senator Faruqi?

Mehreen Faruqi (NSW, Australian Greens) Share this | Link to this | Hansard source

Thank you, Mr President. I contend that the order was not complied with. The order was for any documents created, sent or received by relevant department and ministerial officers relating to a national hardship fund, or similar program, payment or initiative, to support international students during COVID-19. This does not imply that a fund had to be established or in operation. Indeed, the Senate order was intentionally drafted widely to capture any initiatives the government may have been working on but did not eventuate. I know for a fact that there are documents that relate to a national hardship fund that fall within the scope of this order, because I submitted a freedom of information request to the department of education, worded similarly to the order, relating to the exact same time period, which identified about 200 pages of material relevant to the request.

Scott Ryan (President) Share this | Link to this | Hansard source

I have taken the opportunity to get some advice, and I can rule on the point of order. Standing order 164(3) provides opportunities for senators after question time to seek an explanation from a minister if a minister does not comply with an order for documents within a specified period and does not, in that time, provide to the Senate 'an explanation of why the order has not been complied with which the Senate resolves is satisfactory'. Although that provision was inserted into the standing orders in 2005, it has only been used on a handful of occasions and its interpretation has not been the subject of any previous rulings. The provisions are, however, analogous to the provisions of standing order 74(5), which allows senators to seek explanations for unanswered questions on notice and estimates questions. Early rulings on that standing order established that it ceases to be available once an answer has been provided. Standing order 164(3), in my view, operates in the same way. If a minister has complied with an order for documents, the process set out in the standing order is no longer available and a senator may not seek an explanation under the order.

As I understand it—and I appreciate Senator Faruqi's contribution here—the government's responses to the order are unequivocal in stating that no documents exist that meet the terms of the order. Absent any motion being moved in the Senate to contradict the government's response, I consider it reasonable in my position to accept the government's responses and to conclude that the order has been complied with. I'm not in a position to determine contested claims. If there is a disagreement over the interpretation of an order, as seems to be the case here from what I've just heard and from the advice I have received, the standing order does not provide a means for determining that disagreement. There are, however, other procedures in the Senate that a senator can use to further pursue the matter. I thank senators.