It began with newly elected MP Kylea Tink’s suggestion that the federal anti-corruption body we’ll soon be getting should have the power to sack members of federal Parliament if their misconduct is sufficiently bad.
That didn’t find many friends. Former NSW ICAC chief Ian Temby QC called it “wrong-headed”. Incoming Senator David Pocock, among others, gave it a thumbs down too.
Bernard Keane in Crikey wasn’t so sure, pointing out that it’s a long time between elections if we just leave the sacking to the voters, and that there’s an inherent conflict in the idea of giving the power to Parliament. What ruling party would agree to expel one of its own?
But what is the actual legal position and what’s possible?
Can federal Parliament expel an MP?
No! Under the constitution, our federal Parliament inherited all of the privileges of its United Kingdom equivalent, which included the power for each house (the House of Representatives and the Senate) to expel one of its own by vote. The power was used only once, in 1920, when the lower house kicked out an opposition MP for being a bit too republican. It was a bad precedent, thankfully never followed.
The constitutional position was expressed to be subject to Parliament declaring for itself what privileges each should have. In 1987 it did just that, passing the Parliamentary Privileges Act which explicitly removed the expulsion power altogether.
So that was that, although Parliament could always legislate again to give itself back the power to kick members out for bad behaviour.
Can anyone else sack an MP?
No! There is no person, body or agency with that power, including the Governor-General. (The GG can sack ministers by terminating their commissions, but they remain members of Parliament.)
Can’t voters do a recall or something?
No! No such thing in our democracy. Even if every enrolled voter in the member’s electorate signed a petition demanding his or her removal, it’d have no effect or consequence.
But what if they’re convicted of a crime or go bankrupt or whatever?
Ah, the constitution does say something about that. There’s the infamous section 44, which automatically disqualifies foreign citizens, bankrupts, public servants and people with pecuniary interests involving the Commonwealth. The constitution simply makes their seat vacant; the High Court decides, if asked, whether that’s what’s happened. It’s not a penalty, just a fact.
Also on that list is the circumstance of an MP being “attainted of treason” or convicted of a federal or state offence punishable by imprisonment for one year or longer. Again, automatic.
Could we give the federal ICAC power to sack them?
No! Not a question that’s ever been tested, but it would deeply offend the constitution’s careful construction of our democratic system of government. The High Court says there are implied provisions in the document which must exist to support that system, the fundamental aspect of which is the right of enrolled voters to decide who will represent us in Parliament, determined by free vote.
The High Court always points to section 24, among others, which says that the members shall be “directly chosen by the people of the Commonwealth”. It follows that they shall be directly unchosen the same way. End of discussion.
So is it best that we just wait for the next election to kick them out?
Yes, it really is. Once you appreciate that a criminal conviction for even quite minor offences is enough to automatically remove an MP from their seat, then I don’t think there’s enough of a problem to justify interfering with the right of voters to decide how clean or dirty they want their representatives to be.
The issue remains is that much behaviour that would be seen as corrupt, is infact not illegal or an offence. I’d like to see a more defined description of what is considered corrupt behaviour and attach consequences to it. Even breaching ministerial codes should have consequences formalised.
“Also on that list is the circumstance of an MP being “attainted of treason”…”
How curious. Not convicted of treason, which would be the more conventional way to describe someone being found guilty of an offence defined in an Act of parliament. (The Treason Act of 1351, as amended, one of the oldest statute laws still on the books.) Attainted suggests the MP was named as guilty of treason in an Bill of Attainder, which is a quite different procedure. If it is really possible under the constitution for such a Bill to be passed in parliament then parliament can get rid of an MP or minister. But it would be rather drastic.
A famous, or possibly infamous, example is the Bill of Attainder passed by Parliament in 1641 against Thomas Wentworth, 1st Earl of Strafford and the leading minister of Charles I. Parliament’s real argument was with the King, but rather than risk going directly against Charles, Parliament went for his minister as a proxy. Charles was ultimately obliged to sign a death warrant and Strafford was beheaded. The UK parliament formally abolished the procedure of attainder in the 19th C which ought to mean it is not applicable here, but if it’s in the constitution, who knows? Would we want our Parliament to be able by a simple majority vote to find someone guilty of treason and pass sentence?
Another way of getting rid of ministers that has faded away is impeachment. That has not been used in the UK since Edmund Burke tried and failed to impeach Warren Hastings in 1788 and AFAIK it has never been used in Australia, but the procedure has previously been revived after a lapse of centuries so why not again?
PS – a feature of the Bill of Attainder that English governments found very attractive in previous centuries is that, unlike a prosecution in a court of law, there is no need to produce evidence in public. The only requirement is get a majority for the Bill. For example, all the carry-on with Collaery and Witness K, where the various Attorneys General have been attempting for years to have evidence presented in secret and concealed from the public, the defence and the accused, would be completely unnecessary if instead the alleged miscreants were named in a Bill of Attainder. Get that through Parliament and all those secrecy problems would be solved at a stroke. What’s not to like?
Drastic indeed – especially the ‘corruption of blood’ that goes with it, but nevertheless it would be fascinating to see the debate on the bill every evening on TV!
One of the underlying principles of ICAC’s is that they are not in the business of prosecuting or, in some other way, punishing wrongdoers. Put simply, they gather information, evaluate that information against the criteria which defines corruption and report accordingly.
What Parliaments, local government or the public service does with those findings is of no direct concern of the Commission. However it might raise concerns if, over time, its findings are repeatedly ignored.
Where MP’s are found to be corrupt, or have committed some serious offence, Parliament should be able to remove the MP and have the vacancy filled by a person nominated by the members party with the State parliament approving the replacement as per section 15 of the Constitution. Dealing with independent members might be more difficult, but I’m sure the lawyers could find a solution.
If an ICAC finds that a person has been corrupt/ committed an offence, surely it can be referred to the DPP for prosecution to be considered and if the person is found guilty then they are automatically expelled.
That’s what I was thinking as well – not an expulsion but continuing to use an existing constitutional procedure. Perhaps the fact that can happen would need to be made very clear in an MPs code of conduct.
Yes, that would be the obvious way to go with such cases.
But as I posted yesterday: as a method of removing of removing the worst cases it could work, but let’s remember that investigating criminal cases is the job of the AFP, which has never shown the slightest interest in bringing ministers to account. If such a case comes up it might first spend months or years with the proposed integrity commission before it gets passed to the police. If the AFP persuades itself to do its job for once, it will still be unlikely to get a brief of evidence to the DPP in less than another two or three years; it is appalling how long it takes. Then it will have to go to court, which takes time since the courts are desperately clogged up, and if there’s a conviction there will almost certainly be appeals, so maybe another two or three years.
Let’s not be too hopeful about the criminal law saving us from bad or bent politicians. They will be long gone from parliament before the law catches up, if it ever does.
I believe that a federal ICAC would and should make findings of corrupt activity when it is not necessarily criminal. Much is done by corrupt politicians which would not meet the conditions for a criminal prosecution.
Just for clarification: a federal integrity could not find anyone has committed an offence, that is something the constitution says only a court can do. A commission would stop once it found prima facie evidence of an offence and pass that to the police to investigate. Findings about not meeting required standards of conduct and so on are not so problematic.
That is what I meant – that an ICAC could refer someone on to be considered for prosecution . And you can only be prosecuted if there is a legislated offence. But a lot of dodgy conduct is not necessarily illegal.
And I wasn’t suggesting this might happen, just mentioning what the process would be, rather than Parkiament having the power to expel someone.
So that just leaves all the other problems that we are up against, branch stacking, state capture, all manner of corruption, rorts, jobs for mates etc which are apparently not clearly defined enough as crimes in our legislation so our beloved pollies can rob us blind without consequence. Lucky us.
In terms of ‘ministerial corruption’; can the ICAC request to the Governor-General that in the case of a minister proven to have acted corruptly (even pork-barreling etc), the G-G permanently cancels the MP’s ministerial post and is legally unable to accept that MP for a ministerial commission at any point in the future.