House can oust Anning, but that’s best left to voters

Australia’s political leaders have reacted swiftly in condemning senator Fraser Anning for his comments after the Christchurch attack. Members of the community have gone further. More than 1.3 million people have signed a Change.org petition calling for Anning to be expelled from parliament. A rival petition calling for him to be retained attracted 17,000 signatures.

Until 1987, the federal parliament possessed the same powers, privileges and immunities as were held at Federation by Britain’s House of Commons. This was provided for by section 49 of the Constitution. Such powers include the right to impose punishments including imprisonment, suspension or expulsion.

Parliament has expelled one of its members for speaking at odds with public opinion. In 1920 Hugh Mahon, a Labor member of the House of Representatives, gave a speech in which he attacked British policy. He spoke of “this bloody and accursed despotism” and called for an Australian republic.

This provoked an enormous public reaction, and prime minister Billy Hughes moved a motion to expel Mahon from the house for making “seditious and disloyal utterances”. The vote succeeded on party lines.

It’s the only time a member has been expelled from the federal parliament. It has been more common at the state level. The Victorian parliament expelled Patrick Costello for electoral fraud in 1861; James Butters and Charles Jones for bribery and corruption in 1869; Charles McKean in 1876 for criticising the assembly; and Edward Findley in 1901 for libel of the king. The NSW parliament has expelled four members, the last in 1969.

It has been decades since a member was expelled from an Australian parliament. Calls for action do routinely surface, and an attempt to eject Victorian MP Geoff Shaw for the misuse of entitlements failed by a single vote in 2014. Such attempts fail because parliaments are wary of this power.

There is a risk that a government may abuse its majority to expel members of the opposition. It has also been thought better in our democracy to let the people express a verdict at the ballot box.

Concerns about expulsion led the federal parliament to fetter its own powers.

In 1987 it passed the Parliamentary Privileges Act, which states in categorical terms: “A House does not have power to expel a member from membership of a House.” This means that, as the law now stands, Anning cannot be expelled.

The Parliamentary Privileges Act can, however, be changed. Parliament can amend the law to reinstate this power. This would take an extraordinary show of unity and a willingness to legislate with breakneck speed given the impending election. If this occurred, parliament could expel Anning for his Christchurch comments.

As the community petition shows, expelling Anning may be popular. His words hit a raw nerve and are counter to what most Australians see as fundamental values.

He is also an accidental senator who lacks anything akin to a mandate.

Anning was a One Nation candidate at the 2016 election and attracted just 19 first preference votes, the second lowest total of any of the 126 Queensland Senate candidates.

Anning is in parliament only because it was discovered One Nation senator Malcolm Roberts had British citizenship and so was disqualified under section 44 of the Constitution.

Anning was next in line on the party ticket and was elected in a recount with the benefit of One Nation preferences. Despite being in parliament due only to One Nation voters, he resigned from that party on taking his seat. After a flirtation with Katter’s Australian Party, Anning now sits as an independent.

Not surprisingly, his legitimacy as a member has been questioned repeatedly. Certainly, I cannot think of any other member of parliament since 1901 who has had such a weak and tenuous claim to represent the people.

It would be a mistake, though, to react to his position and his comments by expelling him from parliament. Parliament made the wrong decision in 1920 when it expelled Mahon. It would set yet another dangerous precedent were it to rewrite the rules to expel Anning.

The right response is for parliament to censure Anning, and for our leaders to continue to make clear that his statements run counter to deeply held Australian values. His speech should be met with counterarguments, not expulsion.

We should not visit penalties on him or any person because of their speech, unless they are inciting violence. As offensive as they are, Anning’s comments do not cross this line, and his right to freedom of speech should be recognised. He should be condemned and then ignored, and the people should be left to have the final say if he stands again for parliament this year.

George Williams is dean of law at the University of NSW.