The president of the New South Wales upper house has sought advice from high-profile barrister Bret Walker SC over whether he can seek arrest warrants for government staffers who failed to give evidence to an inquiry examining the Sydneycaravan “fake terrorism plot”, Guardian Australia understands.
Ben Franklin is expected to reveal on Tuesday whether he intends to seek arrest warrants from the NSW supreme court for five staffers who were summoned to appear before the inquiry on Friday, but did not attend. Three are from the office of the premier,Chris Minns, and two work for the police minister, Yasmin Catley.
According to sources with knowledge of the situation, Franklin has sought advice from leading senior counsel Walker, who represented George Pell in his appeal to the high court and former attorney general Christian Porter in his defamation case against the ABC.
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Under the Parliamentary Evidence Act, if the president is satisfied that the five staffers failed to appear without just cause or reasonable excuse, the matter will be referred to a judge of the supreme court.
If the judge agrees, then warrants would be issued, the staffers arrested and brought before the committee to give evidence.
The standoff between the premier’s office and an upper house inquiry into Minns’ handling of the Dural caravan incident has inflamed simmering tensions between the premier and the upper house.
There is a long-standing precedent that members of the legislative assembly cannot be compelled to appear before the upper house and vice versa, but the question of whether staff from a minister’s office can be compelled is heavily contested.
“They are staff employed by the executive. If the legislative council can’t scrutinise employees of executive government, of a minister’s office, we might as well go to the beach,” independent upper house MP, Mark Latham, said.
Constitutional law expert Prof Anne Twomey, from Sydney University, suggested that the right to refuse to appear may also extend to ministerial staff.
Twomey pointed to the principle that members can’t be compelled by the other house and the well-established principle of ministerial responsibility, with questions in parliament providing an avenue for other MPs to seek information of ministers.
The inquiry – launched with the support of the Coalition, the Greens and crossbench MLCs – isexamining the handling of informationabout the caravan plot amid concerns whether parliament was “misled” beforecontroversial laws aimed at curbing antisemitismwere rushed through parliament.
In January, after it was announced that the caravan had been found in Dural laden with explosives, Minns said it had the potential to be a “mass casualty event”. But in March, the Australian federal police revealed they believed it was a “con job” by organised crime figures seeking to divert police resources and influence prosecutions.
The inquiry was told thatthe briefings on the matter were “pens down” meetingsand no notes were taken. They have since sought to summons staff to determine who knew what and when.
More staff from the NSW premier’s office are facing summonses and the threat of arrest if they do not agree to appear at a second upper house inquiry, intensifying the standoff between the NSW upper house and the Minns government.
A second committee is currently considering responses to requests that premier’s staff appear to answer questions about the $37.6m Local Small Community Allocations program.
Minns’ chief of staff, James Cullen, has agreed to appear, but others more intimately involved with the grants program are believed to have raised concerns about appearing.
The little-known grants program has come under scrutiny. Although it gave equal allocations of $400,000 to each of the 93 NSW electorates, its detractors allege Labor candidates were asked to nominate how it would be spent, effectively turning it into a pork barrelling exercise to benefit Labor.
The upper house has already expressed its anger about the slow pace of the government in producing documents about this program to the upper house.
It took the rare step in late May ofcensuring the leader of the government in the upper house, Penny Sharpe, over the tardy production of documents.