Could the Federal Parliament expel or suspend Craig Thomson or Peter Slipper?
The House of Representatives could suspend either of them – but not expel them. This is because s 49 of the Constitution gives to the Parliament the power to legislate about the powers of its Houses, but until it does so, the Houses of the Federal Parliament have the same powers as the House of Commons had at the time of federation. These powers include the power to expel and the power to suspend.
Expulsion
The Parliament has overridden these ancient powers by abolishing the power of its Houses to expel their Members. It did this in 1987 through the enactment of the Parliamentary Privileges Act. A parliamentary committee had previously recommended that the power to expel be abolished because of the potential for it to be abused. It noted that the Constitution already sets out the circumstances in which Members are disqualified or their seats vacated (such as bankruptcy and conviction of certain criminal acts). It also pointed to the democratic principle that it is up to the electors to decide the composition of Parliament. It ought not to be left to Members to decide, lest they make partisan decisions for political benefit.
The Committee discussed the one occasion upon which a Member of the House of Representatives, Hugh Mahon, was expelled in 1920. He had given a speech at a public event in Melbourne at which he had criticised British policy in relation to Ireland and urged Australia to become a republic. On 11 November (a dangerous date for dismissals) he was expelled by the House of Representatives for his ‘seditious and disloyal utterances’. The Leader of the Opposition argued that it should be up to a court to try Mahon for sedition, not the House. He also argued that Mahon’s actions had not occurred in the House or disrupted the Parliament in any way. There was therefore no need to discipline him. Nonetheless, the expulsion motion was passed on party lines. In retrospect, it has been argued that this expulsion was inappropriate and partisan in nature and that any offence should have been left to a court to determine.
Section 8 of the Parliamentary Privileges Act 1987 now states that a ‘House does not have power to expel a member from membership of a House.’
Suspension
The Parliamentary Privileges Act did not abolish the power to suspend a Member of Parliament. It may be arguable, however, that it altered the scope of the power to suspend. For example, section 4 imposes statutory limits on what amounts to an offence against a House. It provides:
Conduct (including the use of words) does not constitute an offence against a House unless it amounts, or is intended or likely to amount, to an improper interference with the free exercise by a house or committee of its authority or functions, or with the free performance by a member of the member’s duties as a member.
Ordinarily, if a Member is suspended it is for disorderly conduct which disrupts the free exercise of the performance by a House of its functions and therefore meets the description of an ‘offence against a House’. Under the Standing Orders the Speaker will name a member and then a vote is held to suspend the Member. On the first occasion, the suspension is for 24 hours. On a second occasion within the same calendar year, the suspension is for three consecutive sitting days. For a third suspension within that year, it is for seven consecutive sitting days. (The periods are different in the Senate.)
It is unclear whether the power to suspend continues to apply to conduct which does not fall under the Standing Orders and does not amount to an ‘offence against a House’ as defined in s 4 of the Parliamentary Privileges Act. Such a power continues to exist in the House of Commons which has suspended Members for acts ranging from removing the ceremonial mace to rorting expenses, but it is unclear whether the Parliamentary Privileges Act was intended to limit the scope of that power in relation to the House of Representatives.
Could the suspension of a Member of Parliament be challenged in the courts?
As a general principle, the courts try to avoid interfering in internal parliamentary matters and treat them as ‘non-justiciable’ (i.e. something that they cannot or will not determine). However, when questions of power arise, it is ultimately for the courts to determine whether an institution of government, including a House of the Parliament, has the capacity to exercise a power. Accordingly, in those jurisdictions, such as New South Wales, where the power to suspend a Member of Parliament rests upon an implication of reasonable necessity and can only be used for self-protection, the courts have been prepared to determine whether a suspension is beyond the power of the House. For example, the validity of the suspension of Michael Egan in 1996 by the NSW Legislative Council was determined by the both the NSW Court of Appeal and the High Court.
In the past, the NSW courts have taken into account factors such as the length of the suspension, the presumption of innocence, the rights of constituents to be represented in Parliament and deference to the House’s assessment of the seriousness of the conduct in question. Courts and litigants have also contended that indefinite suspension is worse than expulsion, both for the Member concerned and his or her constituents. Expulsion causes a by-election, which means constituents are represented again reasonably soon and the expelled Member has a chance to run and be re-elected. Indefinite suspension, however, leaves everyone in limbo.
In the case of the Federal Parliament, where the power to suspend is determined by reference to the scope of the powers of the House of Commons at the time of federation, the courts have not so far been called upon to intervene. They might agree to do so, however, if the challenge related to the power to suspend, rather than the merits of the suspension.
The exercise of such a power might be challenged on the ground that either (a) it was beyond the power held by the House of Commons at the time of federation (which is unlikely); or (b) that the power has been impliedly altered since by legislation or constitutional implications. For example, it might be argued that since the enactment of the Parliamentary Privileges Act 1987, the power to suspend is limited to ‘offences against the House’ and could not be exercised in relation to events that took place before the Member was elected and did not interfere in any way with the free exercise of a House of its authority or functions. It might also be argued that the constitutional implications derived from the system of representative government preserve the right of a Member of Parliament to exercise his or her vote in the Parliament on behalf of his or her constituents unless disqualified from doing so by legislation or the express provisions of the Constitution.
How might a Member otherwise lose his or her seat?
Sections 44 and 45 of the Constitution provide that if a Member of Parliament is convicted of an offence ‘punishable under the law of the Commonwealth or of a State by imprisonment for one year or longer’, then his or her seat in Parliament becomes vacant. First, the Member must be ‘convicted’. Secondly, the offence in question must have a maximum penalty of imprisonment for 12 months or more. Even if the Member is only sentenced to a fine or a term of two months in prison, the critical fact is that the offence is ‘punishable’ by the sentence of imprisonment for 12 months. It is therefore the maximum possible penalty for that offence, rather than the sentence given, that is important.
If a Member were convicted of an offence where the maximum penalty was imprisonment for 8 months and was actually sentenced to be imprisoned for 8 months, this would not cause his or her seat to be vacated under ss 44 and 45. However, s 38 also provides that the ‘place of a member shall become vacant if for two consecutive months of any session of the Parliament he, without the permission of the House, fails to attend the House’. Therefore, if a Member were imprisoned and the House did not give him or her permission to be absent from the House, then the Member would lose his or her seat after two months of non-attendance of Parliament.
Other grounds for a Member losing his or her seat include: becoming a citizen of a foreign power, becoming bankrupt, holding a paid government office (other than that of Minister, Speaker, etc), having a pecuniary interest in a contract with the Public Service and taking payments to act in the Parliament on behalf of any person or State. A person also ceases to be a Member if he or she dies or resigns.
Suspension and confidence in the government
If a Member lost his or her seat now (eg through death, resignation or disqualification) and the consequence was that until the by-election was held the Gillard Government did not hold majority support in the House of Representatives, the Prime Minister could ask the Governor-General to prorogue the Parliament. This would mean that Parliament would stop sitting and all business would cease until it was summoned to commence a new session. Although this would be controversial, it would not be unprecedented. Such action has previously occurred in the States, on the ground that confidence in a Government should be determined by a fully constituted Parliament – not by accidents of fate. This is a reasonable view to take, as long as the by-election is held promptly and the period of prorogation does not extend for an unnecessarily long period. If the Government did not gain the support of the Member elected in the by-election, then it could resign, call an election or face a vote of no confidence.
The situation is different, however, if a Member is suspended and the vote of that Member is needed to sustain the Government’s majority. Suspension would presumably be for a period of ‘sitting days’ so that the adjournment of Parliament would not be of any help. Prorogation, on the other hand, would have the effect of terminating the suspension, because prorogation ordinarily terminates all resolutions of a House (unless it is a standing order). So if the Parliament were to be prorogued once the Member had been suspended and the Parliament was then summoned by the Governor-General to meet the following day, this would have the effect of terminating the suspension of the Member. However, it would probably not stop the House from suspending the Member again, sending the House into a farcical cycle of suspension, prorogation, commencement of a new session and then suspension again. For this reason, prorogation is unlikely to be a helpful tool in such circumstances, unless there were some other reason to believe that in the interim confidence in the government would be restored by other means.
Anne Twomey
14 May 2012
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