Standing Order 52: How recent changes will impact NSW Government agencies

Standing Order 52 (SO52) regulates the power of the NSW Legislative Council (or, Upper House) to order the production of documents in relation to "a particular decision of Government that has become a matter of broad public interest". It is an important tool used by the Legislative Council to hold the Government to account for decisions made and to achieve transparency in relation to those decisions.

SO52s have become a prominent feature of the Legislative Council's sitting weeks, and more are being passed more frequently than ever before in the history of NSW Parliament. To provide some context, during the 56th Parliament from 2015 to 2018, a total of 18 SO52s were passed during the four year term. Since the commencement of the 57th Parliament on 7 May 2019, there have been over 130 SO52s passed as at September 2020 (with that number now higher, with more SO52s having been passed in October and November 2020).

Some agencies are more familiar with the SO52 process as a result of having been subject to a large number of those SO52s. Those agencies who have experienced one or more SO52s firsthand understand the significant challenges associated with complying with a SO52, particularly where the scope of the SO52 is broad. In our experience, this can result in the need to review tens of thousands of documents in a seemingly impossible timeframe which is typically 7, 14, 21 or 28 days.

Following the unprecedented Government Asset Management Plans SO52 passed in September 2020 that called for the production of documents by all of NSW Government, most (if not all) NSW Government agencies are now aware of SO52 if they were not before September 2020.

In an attempt to ease the burden on NSW Government agencies, on 10 November 2020, the Legislative Council (with cross-party support) passed a motion to amend the current SO52 process for the duration of the current Parliamentary session (the Sessional Amendment).  

What is the Sessional Amendment and how does it change the current process?

Recognising the need to balance accountability and transparency with the pressure placed on Government resources by SO52s, the Sessional Amendment allows the Department of Premier and Cabinet, on behalf of NSW Government agencies, to apply:

• to vary the scope of the terms of the SO52 if it may result in the production of a large number of documents that may not be directly relevant to the existing SO52; and/or,
• to amend the timeframe for production of documents, if the timeframe is considered to be unduly onerous.

The Application must be supported by a submission outlining specific details set out in the Sessional Amendment providing reasons for seeking that the SO52 is varied, including, amongst other things, an estimate of the volume of material, the cost to comply with the SO52 and whether the material could be produced by alternative means (for example, electronically).

The Clerk must then provide the submission to the President and the Member of the Upper House who moved the SO52. The President and the Member may provide their consent to the Application, meaning that compliance by the agency with the amended SO52 is taken to be compliance with the original SO52 until such time as the House considers the varied terms of the order on the next sitting day. On the next sitting day, the Application must be tabled by the Clerk of the House. The House must then decide on a question "that the varied terms of the order be agreed to". The Member who moved the original SO52 and another Member may make a statement not exceeding 10 minutes each in relation to the Application. If the question is resolved in the negative, the original SO52 remains in place. If the question is resolved in the positive, the SO52 is formally varied in accordance with the Application.

As there is seemingly no provision to effectively "stay" the SO52 during any Application, this could result in a significant loss of time to respond to the SO52, particularly if there is a delay between making the submission and the next time that the Legislative Council sits – irrespective of whether the Application is successful or not.

Preparing for your next SO52

In light of the introduction of this procedure, the House may deal with late or part returns to the SO52 differently, given that there is a mechanism to extend the timeframe and scope of the SO52. There are four useful steps that will assist your agency to prepare for the next time that it is named in a SO52:

1. Internal education: educate internal staff to be aware of the SO52 process and how they, and the agency, may be impacted if a SO52 is passed in relation to a matter that they are working on, or have worked on.
2. Track draft SO52s naming your Agency: be aware of the draft SO52s that name your agency by following the Legislative Council Notice Papers on the NSW Parliamentary website. Interrogate the scope of a SO52 and the likely resources required to comply with it at the earliest opportunity and work with your internal stakeholders to understand if the proposed scope is too broad or the timeframe unduly onerous. Be prepared for if/when the SO52 is passed to act quickly, with a strategy in place for each draft SO52.
3. Consider using the Sessional Amendment process: if it is determined that the scope of a SO52 is too broad or the timeframe is unduly onerous, consider whether your agency may wish to rely on the new Sessional Amendment process to seek a longer time frame to comply with the SO52 and/or a narrower scope to the SO52. Be aware of the relevant timeframes that will apply if relying on this process.
4. Strategy and production: even if your Agency seeks to rely on the Sessional Amendment process to apply for a narrower scope or increased time to comply, start the collation of documents and review process early in the event that a change to the SO52 is not agreed to by the Legislative Council and the original timeframe and/or scope applies.

As SO52s are the new norm for NSW Government, being prepared and acting early are critical and should be part of the planning for all NSW Government legal teams. Agencies should also consider, at an early stage, whether a technological solution may need to be deployed to assist with complying with a SO52.

Please reach out if you would like any assistance or support in managing a SO52 production or any internal education sessions.