House rules in favour of NSW MP Gareth Ward until court decides fate

NSW MP Gareth Ward plans to keep doing his job while suspended.

The controversy surrounding NSW MP Gareth Ward cast light on the difficulty parliaments face in disciplining their members. In response to Ward being charged with five offences of indecent and sexual assault, Premier Dominic Perrottet threatened to have him removed from parliament if he did not resign. The Premier then backtracked after receiving advice this might prejudice Ward’s trial. Instead, parliament resolved to suspend Ward until a jury delivers a verdict on his charges.

Parliament ultimately reached the right result in not expelling Ward. The charges against him are very serious, but they have not yet been tested in court. Without this, parliament lacks the evidence to make a judgment about whether Ward is worthy to remain as an MP. Important principles are also at stake. Ward is entitled to the presumption of innocence until a jury decides otherwise. An over-hasty expulsion from parliament would compromise this.

Australia’s parliaments derive their power to discipline members from the privileges, immunities and powers of Britain’s House of Commons. The House of Commons conferred these powers upon itself over the course of centuries to preserve its dignity and proper functioning. It also granted special privileges to parliamentarians, including in 1688 to speak freely in parliament without fear of being sued for defamation or subject to prosecution.

Many of these powers are an odd fit for the modern age. It seems incongruous, for example, that parliament can imprison someone for contempt of its procedures without the need for a trial before a judge. Powers such as this are problematic in harking back to earlier centuries when there was less clarity about the separation of powers and parliament was determined to assert its role and authority against the will of the British sovereign.

Fortunately, Australian parliaments have usually shown self-restraint in exercising their coercive and extraordinary powers. They have recognised that their misuse would be contentious and could come with a high political cost. Using the authority of parliament for partisan purposes may erode community confidence in a government and undermine its standing at the next election.

The power of expulsion is a good example. It can be exercised by parliament to deny a community its elected representative and so runs counter to basic democratic principles. A member can be expelled by a simple vote, which might be used to strengthen the position of a governing party. However, this could precipitate a political crisis and backfire on the government. Abuse of the power might also be tested in court on the basis that it undermines representative and responsible government in Australia.

Concerns about the breadth of the expulsion power and its potential for misuse run so deep that some parliaments have given it up. Australia’s federal parliament denied itself the ability to expel members by enacting the Parliamentary Privileges Act. That law states in the plainest terms: “A house does not have power to expel a member from membership of a house.” The result is that federal members of parliament can behave badly without any prospect they will be expelled by a vote of their peers.

No such limit applies in NSW. In the case of its Legislative Assembly, it maintains a standing order that provides: “A member adjudged by the house guilty of conduct unworthy of a member of parliament may be expelled by vote of the house, and the member’s seat declared vacant.” Three people have been expelled from the Legislative Assembly and one from the Legislative Council. The last such expulsion occurred in 1969.

If the NSW parliament had determined to expel Ward, the result would have been a by-election. However, Ward could have chosen to recontest his seat and, indeed, his community could vote him in again. There is long precedent for this. The constituency of MP John Wilkes repeatedly re-elected him after his expulsions from the British parliament, including in 1769 when he was removed for being an outlaw. Similarly, RA Price was re-elected to the NSW parliament after he was expelled in 1917 for making unfounded allegations against a minister.

Ward’s suspension raises a different set of problematic issues. The rules of the NSW parliament say that Ward is only “excluded from the parliamentary precincts” and cannot take part in parliamentary proceedings. On the other hand, he will receive his salary and benefits, can use his electorate office and remains the local member. Ward says he will “continue to represent and lobby for my local community as its democratically elected member” and “I have an important job to do and I intend to get on with it”. Ward may be suspended, but this will have limited impact despite the extraordinary powers of the NSW parliament.

George Williams is a Deputy Vice-Chancellor and Professor of Law at the University of NSW.