The recent NSW election brings back to Parliament, along with a minority Labor government, a creepy uncle and an allegedly creepy uncle: Mark Latham and Gareth Ward. With their return comes a dilemma: where do you hide them, or can you just lock them out altogether?
It’s important to be clear that Ward’s crimes are alleged, while Latham’s outrages are real (tending to the surreal). In both their cases, however, the ethical/political conundrum facing Parliament is not caused by what each of them actually or allegedly did, but the fact that they’ve just been freshly reelected by voters who must be assumed to have known all the pertinent pieces of information.
Latham’s offences against decency go way back and a quick trawl through his Twitter feed (which I did, “for research”, before taking a shower) establishes that he is a fully qualified cooker. Even so, his tweet last week that caused all the trouble was so disgusting that almost all media declined to republish it, and it managed to find the apparent outer limit of his party leader Pauline Hanson’s tolerance for putrescence (it means rottenness, Pauline, save you Googling).
Let’s just say that if his tweet was a window into Latham’s soul, his soul is a 10-day-old fish kill inside a septic tank.
About Ward’s situation, there is nothing funny. He stands charged with sexual assault and indecent assault, and will face trial in coming months. If he is convicted (and the conviction survives any appeals), the Constitution Act deems that his seat will automatically become vacant; i.e. he’ll be out.
The issue with Ward is what to do in the meantime. In 2021, he disclosed that he was being investigated by police, resigned as minister for families and moved to the crossbench. Last year, Parliament passed a motion suspending him, meaning he was unable to sit in the House or vote. He then stood as an independent in the election, and won. Talk was immediately revived of whether he could, or should, be suspended again when he turns up to be sworn back in as a member of the new Parliament.
From Parliament’s perspective, nothing has changed. Ward is still accused of rape, and presumably his fellow members haven’t altered their opinion on whether that makes him a fit and proper representative.
However, the electors of Ward’s south coast seat have also expressed their opinion, voting him back in. In circumstances where Parliament considers an MP to be not fit and proper, but the voters — armed with the same information — have decisively declared that they do, whose preference trumps the other?
That’s a question with no precedent, and no correct answer anyway. Parliament is self-regulating; it decides on its own rules and, if it still determined that Ward should be excluded, that would not be open to legal challenge. It could not, however, be construed as anything other than a defiance of the voters’ electoral will, leaving them effectively unrepresented in Parliament.
Given that, and notwithstanding the pronouncements by both party leaders that they would suspend Ward again if he was reelected, it seems obvious to me that Parliament should defer to the wisdom of the electorate — even if that wisdom is patently unwise.
Turning to Latham, his conduct does not trigger any automatic vacations. He is, however, like all members, susceptible to Parliament’s inherent common law power to suspend or even expel one of its own. The power is discretionary and wide, an import from the Mother Country and a bit of a constitutional oddity given that the Commonwealth Parliament has no equivalent power. In NSW, expulsion has been done four times, most recently in 1969.
That was also the last time the power’s breadth was considered by the Supreme Court, which said that it can be used in a case of “conduct unworthy of a member” so as to preserve the dignity and honour of parliament.
In fairness, it’s difficult to see how even the front bar of a sketchy pub wouldn’t lose dignity if Latham was in it, so I’d have a lot of sympathy for the members of the Legislative Council if they came to the view that they can’t continue to share the red leather benches with him without losing all respect for themselves and the institution.
In reality, nobody’s going to push it that far because, among other reasons, the precedent of expulsion for a social media rant might come back to bite. That, I think, is a fair point.
In both cases, if Ward and Latham do remain in Parliament for the moment, nobody else is obliged to deal with them. Premier Chris Minns has said his party will not work with Latham and will ensure he doesn’t chair any upper house committees. His government is likely to similarly decline to negotiate with Ward or accept his vote.
Ostracism may be a frustratingly mild form of rebuke but, all things considered, it’s the most appropriate in these peculiar and hopefully rare cases.
