It began with newly elected MP Kylea Tink’s suggestion that the federal anti-corruption body we’ll soon be getting should have the power to sack members of federal Parliament if their misconduct is sufficiently bad.
That didn’t find many friends. Former NSW ICAC chief Ian Temby QC called it “wrong-headed”. Incoming Senator David Pocock, among others, gave it a thumbs down too.
Bernard Keane in Crikey wasn’t so sure, pointing out that it’s a long time between elections if we just leave the sacking to the voters, and that there’s an inherent conflict in the idea of giving the power to Parliament. What ruling party would agree to expel one of its own?
But what is the actual legal position and what’s possible?
Can federal Parliament expel an MP?
No! Under the constitution, our federal Parliament inherited all of the privileges of its United Kingdom equivalent, which included the power for each house (the House of Representatives and the Senate) to expel one of its own by vote. The power was used only once, in 1920, when the lower house kicked out an opposition MP for being a bit too republican. It was a bad precedent, thankfully never followed.
The constitutional position was expressed to be subject to Parliament declaring for itself what privileges each should have. In 1987 it did just that, passing the Parliamentary Privileges Act which explicitly removed the expulsion power altogether.
So that was that, although Parliament could always legislate again to give itself back the power to kick members out for bad behaviour.
Can anyone else sack an MP?
No! There is no person, body or agency with that power, including the Governor-General. (The GG can sack ministers by terminating their commissions, but they remain members of Parliament.)
Can’t voters do a recall or something?
No! No such thing in our democracy. Even if every enrolled voter in the member’s electorate signed a petition demanding his or her removal, it’d have no effect or consequence.
But what if they’re convicted of a crime or go bankrupt or whatever?
Ah, the constitution does say something about that. There’s the infamous section 44, which automatically disqualifies foreign citizens, bankrupts, public servants and people with pecuniary interests involving the Commonwealth. The constitution simply makes their seat vacant; the High Court decides, if asked, whether that’s what’s happened. It’s not a penalty, just a fact.
Also on that list is the circumstance of an MP being “attainted of treason” or convicted of a federal or state offence punishable by imprisonment for one year or longer. Again, automatic.
Could we give the federal ICAC power to sack them?
No! Not a question that’s ever been tested, but it would deeply offend the constitution’s careful construction of our democratic system of government. The High Court says there are implied provisions in the document which must exist to support that system, the fundamental aspect of which is the right of enrolled voters to decide who will represent us in Parliament, determined by free vote.
The High Court always points to section 24, among others, which says that the members shall be “directly chosen by the people of the Commonwealth”. It follows that they shall be directly unchosen the same way. End of discussion.
So is it best that we just wait for the next election to kick them out?
Yes, it really is. Once you appreciate that a criminal conviction for even quite minor offences is enough to automatically remove an MP from their seat, then I don’t think there’s enough of a problem to justify interfering with the right of voters to decide how clean or dirty they want their representatives to be.
