Daily Bulletin

News

  • Written by Anne Twomey, Professor of Constitutional Law, University of Sydney
The Conversation

In the wake of comments about the Christchurch massacre, members of the public have raised the question of whether a senator can be expelled from the Senate for making offensive statements.

It is now well known that members of parliament can have their seat vacated in the parliament due to their disqualification under section 44 of the Constitution for reasons including dual citizenship, bankruptcy, holding certain government offices or being convicted of offences punishable by imprisonment for one year or longer.

But there is no ground of disqualification for behaviour that brings a House of Parliament into disrepute. This was something left to the house to deal with by way of expulsion.

Read more: Dual citizenship debacle claims five more MPs – and sounds a stern warning for future parliamentarians

What powers do the houses have to expel?

Section 49 of the Commonwealth Constitution provides that until the Commonwealth parliament declares the powers, privileges and immunities of its houses, they shall be those the British House of Commons had at the time of federation (1901).

The House of Commons then had, and continues to have, the power to expel its members. The power was rarely exercised, but was most commonly used when a member was found to have committed a criminal offence or contempt of parliament. Because of the application of section 49 of the Constitution, such a power was also initially conferred upon both houses of the Australian parliament.

The House of Representatives exercised that power in 1920 when it expelled a member of the Labor opposition, Hugh Mahon. He had given a speech at a public meeting that criticised the actions of the British in Ireland and expressed support for an Australian republic.

Prime Minister Billy Hughes (whom Mahon had previously voted to expel from the Labor Party over conscription in 1916), moved to expel Mahon from the House of Representatives on November 11 – a dangerous date for dismissals. He accused Mahon of having made “seditious and disloyal utterances” that were “inconsistent with his oath of allegiance”. The opposition objected, arguing that no action should be taken unless Mahon was tried and convicted by the courts. Mahon was expelled by a vote taken on party lines.

In 2016, a private member’s motion was moved to recognise that his expulsion was unjust and a misuse of the power then invested in the house.

The power of the houses to expel members, as granted by section 49, was subject to the Commonwealth parliament declaring what the powers, privileges and immunities of the houses shall be. This occurred with the enactment of the Parliamentary Privileges Act 1987.

It was enacted as a result of an inquiry by a parliamentary committee, which pointed out the potential for this power to be abused and that as a matter of democratic principle, it was up to voters to decide the composition of the parliament. This is reinforced by sections seven and 24 of the Constitution, which say that the houses of parliament are to be “directly chosen by the people”.

As a consequence, the power to expel was removed from the houses. Section 8 of the Parliamentary Privileges Act 1987 says:

A House does not have power to expel a member from membership of a House.

This means that currently neither house of the Commonwealth parliament has the power to expel one of its members.

Could the position be changed?

Just as the parliament had the legislative power to limit the powers and privileges of its houses, it could legislate to amend or repeal section eight so that a house could, in future, expel one of its members, either on any ground or for limited reasons.

Whether or not this is wise remains doubtful. The reasons given by the parliamentary committee for the removal of this power remain strong. The power to expel is vulnerable to misuse when one political party holds a majority in the house. Equally, there is a good democratic argument that such matters should be left to the voters at election time.

However, expulsion is still an option in other Australian parliaments, such as the NSW parliament. It’s used in circumstances where the member is judged guilty of conduct unworthy of a member of parliament and where the continuing service of the member is likely to bring the house into disrepute.

Read more: Why a government would be mad to advise the refusal of royal assent to a bill passed against its will

It is commonly the case, though, that a finding of illegality, dishonesty or corruption is first made by a court, a royal commission or the Independent Commission Against Corruption before action to expel is taken. The prospect of expulsion is almost always enough to cause the member to resign without expulsion formally occurring. So, actual cases of expulsion remain extremely rare.

Are there any other remedies to deal with objectionable behaviour?

The houses retain powers to suspend members for offences against the house, such as disorderly conduct. But it is doubtful that a house retains powers of suspension in relation to conduct that does not amount to a breach of standing orders or an “offence against the house”. Suspension may therefore not be available in relation to statements made outside the house that do not affect its proceedings.

Instead, the house may choose to censure such comments by way of a formal motion. Such motions are more commonly moved against ministers in relation to government failings. A censure motion is regarded as a serious form of rebuke, but it does not give rise to any further kind of punishment such as a fine or suspension.

The primary remedy for dealing with unacceptable behaviour remains at the ballot box. This is a pertinent reminder to all voters of the importance of being vigilant in the casting of their vote to ensure the people they elect to high office are worthy of fulfilling it.

Authors: Anne Twomey, Professor of Constitutional Law, University of Sydney

Read more http://theconversation.com/can-a-senator-be-expelled-from-the-federal-parliament-for-offensive-statements-113711


The Conversation

Politics

Senator Colbeck named Minister for Aged Care and Senior Australians and Minister for Youth and Sport

Liberal Senator for Tasmania Richard Colbeck has expressed his excitement in taking on responsibility for the portfolios of Minister for Aged Care and Senior Australians and Minister for Youth and S...

Daily Bulletin - avatar Daily Bulletin

Senator Canavan: Statement on Queensland Government's decision on Adani

I welcome the Queensland Government's announcement regarding timelines for Adani's approvals, but I don't thank them. The thanks go to the people of Central Queensland who have forced this outcome t...

Senator Canavan - avatar Senator Canavan

Australians reject Labor’s marine park lock outs

Australians have rejected Labor’s plans to return to their disastrous marine park lock outs policy. Assistant Minister for Agriculture and Water Resources Richard Colbeck said the strong result fo...

Senator Colbeck - avatar Senator Colbeck

Business News

The right way of compliance training: LMS

Does your business fall in the category of a small business, medium business or a highly regulated enterprise? Regardless, compliance training is unarguably necessary for everyone. However, many ...

News Company - avatar News Company

How Car Trailers Benefit Small Farmers

Farming activity requires moving implements, fertilizer, seeds, pesticides, equipments, tools and a host of other things to and from the farm, nearly as a regular activity. Even when your farm is at c...

News Company - avatar News Company

How to Ensure a Successful Letterbox Drop

With the clamour surrounding social media and digital marketing, you might be wondering why you should revert back to the older technique of a letterbox drop.When done right, a letterbox drop can be...

News Company - avatar News Company

Travel

What to Pack for a Tropical Vacation

Going on a vacation is one of the favourite activities for most of us. Sunny beaches and blue sea as far as your eyes can see; all you have to do is relax and enjoy your vacation to the fullest. How...

Brigitte Evans - avatar Brigitte Evans

Golden Year Guide - Preparing For Post-Retirement Travelling

Retirement is something that many of us spend most of our lives looking forward to, it is supposed to be what all that hard work and sacrifice is for. A lot of us have big plans for when we retire, ...

News Company - avatar News Company

5 Glamping Winter Getaways Perfect for this Season

Glamping, also known as “glamorous camping”, is such a huge trend right now all across the globe. Of course, this is no exception for travellers in Australia. From adorable cottages to luxurious be...

Laura Grant - avatar Laura Grant

ShowPo