The Legislative Council has the power to order the production of state papers by the Executive Government. This power is not set out in legislation but is based on the common law principle that the Houses of Parliament possess such inherent powers as are 'reasonably necessary' for the effective exercise of their functions. Such orders are commonly referred to as ‘orders for papers’. The procedures for the production of state papers are set out in Standing Order 52 of the Legislative Council.

Standing Order 52

Under Standing Order 52, any member of the Legislative Council may give notice of motion for an order for papers. Usually, the notice will relate to a particular decision of Government that has become a matter of broad public interest.  The motion will list the government agencies and Ministers' offices sought to be the subject of the order.

If the House agrees to the motion, the Department of Premier and Cabinet is advised of the order and coordinates with relevant agencies and offices the preparation of the Government response. Cabinet documents are not produced or referred to in the Government response.

The Government response is provided to the Clerk of the Legislative Council and is tabled in the House and made public, unless privilege is claimed.  The Government may make a claim of privilege over a returned document – that is, that the document should not be made public on certain grounds such as legal professional privilege or public interest immunity.  Privileged documents are available for inspection by members of the Legislative Council only.

Any member may dispute the validity of a claim of privilege. In such instances, the validity of the claim of privilege is considered by an independent legal arbiter. However, it is ultimately for the House to determine the validity of the claim.

Further information

NSW Parliament