8th Feb 2018, 12:25 PM – Senate Documents - West Lorengau Haus - Order for the Production of Documents

The majority voted in favour of a motion introduced by SA Senator Stirling Griff (Nick Xenophon Team), which means it succeeded.

Motion text

That the Senate—

(a) notes that:

(i) on 7 December 2017, the Senate passed a motion for an order for the production of documents (OPD) relating to correspondence between the Commonwealth and its Australian contractors on Papua New Guinea's Manus Island, and

(ii) the OPD related to parts of contracts, correspondence, reports, memos or photographs relating to accommodation and services being delivered at West Lorengau;

(b) further notes that:

(i) the documents were sought following concerns expressed by advocates and eyewitnesses regarding the standards of accommodation at West Lorengau, including incomplete fencing and plumbing, intermittent power and water, and the sufficiency of the health and other services being delivered, particularly as compared to previous services delivered at the Manus Island regional processing centre,

(ii) according to the UNHCR's fact sheet on Manus Island, updated on 21 January 2018, many of these concerns are ongoing,

(iii) on 17 January 2018, the then-Minister representing the Minister for Home Affairs and the Minister for Immigration and Border Protection (Senator Birmingham) released a two-page response from the Minster for Home Affairs (Mr Dutton), but no documents were returned, and

(iv) the response stated that the release of the documents would be contrary to the public interest, and "should be done on the grounds that the disclosure could be reasonably expected to cause damage to Australia's international relations with PNG";

(c) acknowledges the question of what constitutes a reasonable expectation of damage to international relations has been the subject of proceedings in the Federal Court, specifically in Secretary, Department of Foreign Affairs and Trade v Paul Whittaker (2005), where the court stated that "Damage to international relations might reasonably be expected where the disclosure of a document may disclose sensitive information so as to cause, or reasonably be expected to cause, actual and significant damage...the test is not whether there is a risk of damage to international relations; the test requires a higher degree of certainty of damage";

(d) does not accept that the order for the production of documents made on 7 December 2017 has been adequately dealt with, insofar as the material requested would, by necessity, include a range of information that has no bearing on Australia's relationship with Papua New Guinea;

(e) does not accept that public interest immunity has been appropriately advanced, and calls on the Minister to review the nature of the documents ordered on 7 December 2017, and apply a higher test of real risk rather than hypothesised risk; and

(f) orders that there be laid on the table by the Minister representing the Minister for Home Affairs and the Minister for Immigration and Border Protection, by 9 am on 19 March 2018, any correspondence requested on 7 December 2017 which meets the proper test.