Upper house votes 21 to 20 ordering government leader to produce three crucial reports before 9.30am or face expulsion

This article is more than 2 years old

This article is more than 2 years old

The New South Wales parliament is in the midst of a constitutional crisis after the upper house voted on Tuesday night to censure and likely expel the leader of the government over its refusal to release three crucial reports.

Liberal member of the Legislative Council Matthew Mason-Cox crossed the floor to deliver a rare victory for the opposition and minor parties, 21 votes to 20.

The government now has until 9.30am on Wednesday to either produce the three reports or face the expulsion of the government leader in the upper house, Don Harwin, a move that almost certainly see the government head to the NSW supreme court.

The expulsion of Harwin would make the numbers for the government in the Legislative Council even more precarious than they are now. It currently depends on the votes of one minor party member to pass legislation.

The NSW opposition, the Greens, the Shooters and Fishers and Mason-Cox joined forces to issue an ultimatum to the government to either release the reports or face the expulsion of the leader. Christian Democrat, Fred Nile sided with the government.

This is the first time this has happened since the 1990s.

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.



Facebook Twitter Pinterest Former minister Matthew Mason-Cox is considering voting to censure the leader of the government in the upper house. Photograph: Paul Miller/AAP

But the government has ignored the formal calls for papers saying they were cabinet documents.

The opposition and the Greens accuse the government of avoiding scrutiny of three highly contentious policies by misusing the cabinet document exemption.



The crisis will test the right of parliament to demand documents and exercise oversight versus the right of the executive to claim documents are immune from release because they cabinet documents.

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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.

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



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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.



During debate Mason-Cox said he 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.

But he said that while he was uncomfortable with the censure, he believed 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.

In previous debates, 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.

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 Legislative 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 the majority 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 Legislative 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.

Labor’s leader in the Legislative Council, Adam Searle, said that while Labor accepted that documents which reveal the internal discussions and decisions of Cabinet should remain secret, the reports requested were not in that category.

“This is government is being held to account by the parliament, which tonight has voted to give them another chance to do the right thing,” he said.

Greens MP and justice spokesperson, David Shoebridge, said: “The long suffering public should welcome this commitment to accountability and transparency.

“There has been a shroud of secrecy over almost controversial decision made by this government, finally parliament is striking back at executive overreach.

“We can only hope other parliaments will also grow a backbone and hold governments around the country to account.”