Showdown looms as NSW government refuses to release three crucial reports

The New South Wales parliament is headed for a constitutional showdown over the Berejiklian government’s refusal to release three crucial reports, despite the upper house ordering their release.

A coalition of minor parties, the NSW opposition and maverick Liberal MLC Matthew Mason-Cox are expected to forces to issue an ultimatum to the government to either release the reports by Wednesday morning or face the expulsion of the leader of the government, Don Harwin, from the chamber.

This is the first time this has happened since the 1990s, and if passed is likely be fought out in the NSW supreme court.

The three reports – the Tune report into child protection services in NSW, the business case for the upgrades of Sydney’s two major stadiums, and the business case for moving the Powerhouse museum to Parramatta – have already been ordered to be released, thanks to Mason-Cox crossing the floor on three occasions.

Mason-Cox’s vote is crucial but at 6.30pm, at the adjournment, he said he was still “reflecting on the matter” and had come to “ a fork in the road.”

He revealed had been told by the premier, Gladys Berejiklian that he could not have a conscience vote on the matter, which means he faces serious sanctions, including possible expulsion from the Liberal party.

A vote is expected shortly.

Mason-Cox, while he was uncomfortable with the censure, said one of the duties of the upper house was to call the executive to account. The denial of access to the documents “interferes with the capacity of the house to fulfil its role,” he said.

He added that the supreme court was the place to resolve the matter, but that would require him to vote for the censure motion. Debate resumes at 8 pm.

But the government has ignored the formal calls for papers, prompting the Opposition to accuse the government of avoiding scrutiny of three highly contentious policies.

The crisis is testing the right of parliament to demand documents versus the right of the executive to claim documents are cabinet-in-confidence.

The Greens, the Shooters and Fishers and the opposition are all supporting the censure motion this evening that requires the leader of the government in the upper house, Don Harwin, to either hand over the documents by tomorrow morning.

">• Sign up to receive the top stories in Australia every day at noon

Sources said this was the precursor to a vote to expel Harwin from the chamber.

Moving the motion, Labor’s Adam Searle said the government had shown “reckless indifference and thumbed its nose at the Council in a way we haven’t seen the 1990s.”

Greens’ David Shoebridge said the job of parliament was to hold the government to account. That accountability starts with getting access to information,” he said.

Both men acknowledged that the internal deliberations of cabinet should remain privileged but argued that the documents being sought were reports done to inform the policy process.

Christian Democrat, Fred Nile sided with the government.

Over the last two months Mason-Cox, a former fair trading minister, has crossed the floor to demand that the reports be released.

Mason-Cox is an outspoken advocate for reform of the child protection system and has been seeking the Tune report into out-of-home care for at-risk children for over a year.

In the past two months he has also been outspoken about the spending of billions of dollars on the controversial stadium upgrade and moving the Powerhouse to Parramatta, without the public seeing the business cases behind the multibillion- dollar projects, while child protection is underfunded.

Mason-Cox said the government “used to pride ourselves as transparent and accountable government”.

“Lately, this has been replaced by a perverse culture of secrecy, undermining public confidence in government decision-making,” he said.

The latest motion gives Harwin until 11am tomorrowto comply with the orders or provide a satisfactory explanation, or risk being censured and ejected from the chamber.

With the numbers in the NSW upper house on a knife edge, an expulsion from the house could dramatically alter the Berejiklian government’s ability to pass legislation.

At the moment the government depends on the Christian Democrats to pass legislation, assuming all its own MLCs vote for it as well. With Harwin banned from the chamber, a simple abstention by a Coalition MLC would be enough to scuttle a bill.

For example, an environmentally-minded MLC could abstain from voting on the bill to list brumbies on the state’s heritage register instead of culling them, which environmentalists say is necessary to protect the Snowy Mountains national park.

An abstention is not as serious a breach of party rules as crossing the floor.

The government is expected to respond with an immediate appeal to the supreme court to assert its right to withhold what it considers cabinet documents.

The issue of parliament versus cabinet has not been tested since the late 1990s, when there were two cases brought against the then leader of the government in the upper house, Michael Egan.

In the key case of of Egan v Chadwick the three members of the Court of Appeal agreed that the Council’s power to call for documents did extend to privileged documents, on the basis that such a power may be reasonably necessary for the exercise of its legislative function and its role in scrutinising the Executive.

However, there were different views on the question of the extent of the power to order documents. Priestley JA found no limitation on that power, whereas the majority of Spigelman CJ and Meagher JA found that the power does not extend to ordering the production of cabinet documents.

But they differed on what constituted cabinet documents. Spigelman CJ said the immunity applied to documents which, directly or indirectly, reveal the deliberations of Cabinet.

Documents prepared outside Cabinet for submission to Cabinet depending on their content may, or may not also lie beyond the Council’s power. The three reports being sought fall within the last grey area.

The Tune report was commissioned at taxpayer’s expense ahead of the government developing its new policy on out-of-home care. The business costings for the stadiums and the Powerhouse were used by cabinet to reach a decision, but do not necessarily disclose cabinet deliberations.