The New South Wales government has been told it cannot strip suspended MP Gareth Ward of his pay, staff or other entitlements without enacting new legislation, a step it should not take because it “may be vulnerable to legal challenge”.
Ward, the MP for Kiama, was suspended from the state’s parliament in March after he was charged over allegations of sexual abuse against a man and a 17-year-old boy. The suspension came after legal advice found the government could not expel Ward from the parliament.
It means that he cannot visit the parliament, or local schools, but does not restrict him from acting as an MP in all other ways.
At the time, the NSW deputy premier, Paul Toole, said the government had sought advice on whether it could take further steps to restrict Ward from being paid as an MP. The government referred the matter to the state’s parliamentary privileges committee.
That committee has now recommended the government should not take any steps to restrict Ward of his pay and entitlements, and that it does not have the power to stop him from acting as an MP.
While the government could enact legislation to further restrict Ward, the committee found, doing so risked the prospect of creating what it labelled a “ghost member”, and would be vulnerable to legal challenge.
“A law that provides for a member of the Legislative Assembly to be disabled from performing their duties raises the prospect of a ‘ghost member’, who is not for a sustained period of time able to represent their electorate,” the report found.
“Accordingly, it is arguable that such a law is inconsistent with the system of representative government that, according to case law, the commonwealth constitution assumes to exist in the states,” the report stated.
The committee found that MPs suspended from parliament are entitled to “continue to represent their electorate” through any means which “do not involve their actual participation in debates or proceedings in the House or Committees”.
“Such mechanisms would include being able to access their electorate office resources and staff, make representations for constituents, and engage in parliamentary activities such as the lodging of questions on notice and petitions,” the committee found.
When Ward was first charged, the state’s premier, Dominic Perrottet, said he would ask him to resign and, if he didn’t quit, the government would “move a motion to remove him”.
Ward has repeatedly denied the charges against him and has continued to act as an MP.
“I am innocent, and I intend to prove it,” he said in March.
Ward was not present at his first court appearance last week, instead posting photos of himself meeting with constituents in his electorate.
In its report, the privileges committee, which is headed by the Liberal Party MP Peter Sidgreaves, said it had sought advice from University of Sydney constitutional law expert Anne Twomey and barrister Stephen Free SC.
Following Ward’s suspension, MPs within the parliament had privately raised their concern that taking further steps against Ward could create a precedent which would lead to the politicisation of suspension motions, something the committee raised in its report.
It found that “problematic issues” would arise if “any legislation that sought to exercise punitive powers against a Member were to be used in a way that might be seen to be partisan, politically motivated or unjust”.
“Such a perception could more readily arise where the punitive action was to be taken where there had been no formal findings of guilt or misconduct such as by a commission of inquiry or a court of law, and the grounds for alleging misconduct were contested,” it found.
In a statement, a spokesperson for the premier said the government welcomed the “unanimous findings” of the committee and said it would “consider the findings of the report and respond in due course”.
