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Tuesday, 17 March 1987
Page: 818

Senator GARETH EVANS (Minister for Resources and Energy)(9.07) —While respecting Senator Puplick's and Senator Jessop's arguments and position on this matter, I can only repeat my very strong view that this is a power that not only has not been exercised with justification in the past; it is also one that, for a whole variety of other reasons, is not defensible and we can well do without it. Given the fact that Senator Puplick has troubled to spend some little time laying out his position on this and that Senator Jessop has read into the record his and Senator Rae's dissenting reaction on this particular matter, I think it might assist the record and avoid perhaps the very undesirable phenomenon of my speaking at length again on this point were I simply to seek leave to incorporate in Hansard that section of the Joint Select Committee's majority report which explains in some detail the arguments for clause 8 in its present form. I am referring to the section relating to the expulsion of members which runs from page 121 through to page 126 of the Joint Select Committee's report.

Leave granted.

The document read as follows-

Expulsion of Members

7.83 The most drastic of sanctions available against Members is expulsion.

7.84 May describes the power to expel in these terms:

``The purpose of expulsion is not so much disciplinary as remedial, not so much to punish Members as to rid the House of persons who are unfit for membership. It may justly be regarded as an example of the House's power to regulate its own constitution. But it is more convenient to treat it among the methods of punishment at the disposal of the House''.29

7.85 Over the years, Members of the Commons have been expelled for a variety of reasons.30 These include being in open rebellion (in 1715), forgery (1726), perjury (1702), frauds and breaches of trust (1720), misappropriation of public money (1702), conspiracy to defraud (1814), fraudulent conversion of property (1922), corruption in the administration of justice (1621), corruption in the administration of public offices (1711), corruption in the execution of duties of Members of the House (in 1667, 1694 and 1695), conduct unbecoming the character of an officer and a gentleman (1796 and 1891), and contempts, libels and other offences committed against the House on various occasions. The last occasion when the House of Commons exercised its power to expel was in 1954 when Mr P. A. D. Baker was expelled following his conviction on a number of counts of forgery. A somewhat more notable case of expulsion occurred in 1947. The offender was a Mr Allighan who was found guilty of a grave contempt. Mr Allighan had written an article for a newspaper in which he claimed some Members of the House of Commons were paid-in money or in kind-for leaking information. Ironically, the Privileges Committee found Mr Allighan guilty of the practice he had imputed to his colleagues. It said ``In the case of Mr Allighan, this contempt was aggravated by the fact that he was seeking to cast suspicion on others in respect of the very matter of which he knew himself to be guilty, and that he persistently misled the Committee''.31 The publishers of the newspaper in which these allegations were printed were summoned before the Bar of the House and severely reprimanded.

7.86 The United Kingdom has no written constitution. In that country persons may be disqualified from serving in the Commons either by reason of what they are, or by reason of what they have done. The first category includes certain members of the clergy, peers, minors, and persons disqualified by office or service. The latter category includes persons found guilty of corrupt or illegal practices at parliamentary elections (who are disqualified for various periods according to the nature of the offence either for the constituency for which the election was held or for any constituency) and persons convicted of treason (who cannot be elected or sit or vote until they have suffered the allotted or any substituted punishment or have been pardoned). Until recently it seems to have been the law that persons convicted of other offences, and regardless of the nature of the offence or punishment exacted, were not by virtue of that fact disqualified from being elected to or sitting in the Commons. Where a Member was convicted of such an offence it was for the House to judge whether he should be expelled. Now by force of the Representation of the People Act 1981, persons who are sentenced to be detained or imprisoned indefinitely or for more than one year for any offence are disqualified, their election or nomination is void, and the seat of any Member who becomes so disqualified becomes vacant. The disqualification is limited to the period whilst a person is (or should be) detained. Under the Representation of the People Act 1983 a candidate personally guilty of a corrupt practice is disqualified from election for the particular constituency for ten years, and disqualified from election for any constituency for five years.

7.87 In Australia the position is different. Our Constitution provides specifically for qualifications of Members (by s. 34) and for disqualification (by sections 44 and 45).

7.88 Under section 44 a person is incapable of being chosen for sitting as a Senator or Member of the House of Representatives who

is under any acknowledgment of allegiance; obedience or adherence to a foreign power;

is a subject or a citizen or entitled to the rights or privileges of a subject or citizen of a foreign power;

is attainted [convicted] of treason;

has been convicted of any offence punishable under the laws of the Commonwealth or of the States by imprisonment for one year or longer (emphasis added);

is an undischarged bankrupt or insolvent;

holds any office or profit under the Crown, or any pension payable during the pleasure of the Crown out of any of the revenues of the Commonwealth; or

has any direct or indirect pecuniary interest in any agreement with the public service of the Commonwealth otherwise than as a Member and in common with the other Members of an incorporated company consisting of more than twenty-five persons.

7.89 By section 45 if a Member of the House of Representatives:

becomes subject to any of the disabilities mentioned in section 44;

takes the benefit whether by assignment, composition or otherwise of any law relating to bankrupt or insolvent debtors; or

directly or indirectly takes or agrees to take any fee or honorarium for services rendered to the Commonwealth, or for services rendered in the Parliament to any person or State,

his place thereupon becomes vacant.

Sections 39 and 69 of the Commonwealth Electoral Act contain some further detailed provisions as to qualifications and disqualifications relating to sitting as a Member in either of the Houses. It is unnecessary to refer to the details of these provisions.

7.90 It will be seen that the Constitution makes detailed provision for disqualification from being or remaining a Member of Parliament. The provisions embodied in sections 44 and 45, and their automaticity of operation, should be contrasted with the position in the United Kingdom. In particular conviction of any offence punishable under laws of the Commonwealth or of a state by imprisonment for one year or longer has the effect of disqualifying forever the person so convicted, regardless of the length of any prison sentence given to him, and notwithstanding that no sentence of imprisonment may have been imposed.

7.91 We earlier pointed out that on one occasion only has the power of expulsion been exercised by the Federal Parliament. The year was 1920, the House the House of Representatives, and the expelled Member Mr Mahon. On Thursday 11 November, 1920, Prime Minister Hughes moved, as a matter of privilege:

``That, in the opinion of this House, the honourable Member for Kalgoorlie, the Honourable Hugh Mahon, having, by seditious and disloyal utterances at a public meeting on Sunday last, been guilty of conduct unfitting to him to remain a Member of this House and inconsistent with the oath of allegiance which he has taken as a Member of this House, be expelled from this House.''32

The Prime Minister had moved speedily as the speech in question had been given by Mr Mahon on the Sunday before the motion was put. It was a speech at a public meeting on Richmond Reserve, Melbourne. In it, Mr Mahon had expressed sympathy for the Irish Republicans and opposition to British policy in Ireland. At the meeting a motion reportedly had been put and passed censuring the actions of the British Government and urging that Australia break its ties with Britain and constitute itself a republic. At this distance it is not possible to establish precisely what Mr Mahon said. Apparently he had had an accident shortly before the expulsion motion was proposed. He did not attend to answer the expulsion motion, and in those days the House did not have a Privileges Committee. No considered attempt was made to put before the House material for its examination. Assertions, and counter-assertions, were made. The Prime Minister said that he had ``affidavits,'' (more likely they were statutory declarations) from four journalists who had been at the meeting. He declined to read them and relied only on one passage from one affidavit which recorded Mr Mahon as saying:

``The worst rule of the damnable Czars was never more infamous. The sob of the widow on the coffin would one day shake the foundations of this bloody and accursed Empire.''

According to the Prime Minister this statement was completely corroborated by the other three affidavits. From the Prime Minister's long and passionate speech it seems that this statement, coupled with an attack on ``those who are now obeying the orders of the King'' who, so the Prime Minister said, were described by Mr Mahon as ``thugs and murderers'', constituted the gravamen of the charge. Mr Mahon, he said ``cannot attack the Empire and yet be loyal to his oath of allegiance''. Taking the worst view of the case against Mr Mahon, his actions did not, we think, amount to a hanging matter. But the House thought otherwise. The Leader of the Opposition, Mr Tudor, moved an amendment to the motion to omit all words after ``That'', and substitute:

``this House, whilst being opposed to all sedition and disloyalty and the subversion of constitutional means for the redress of grievances, is of opinion that the allegations made against the Honourable Member for Kalgoorlie, the honourable Hugh Mahon, should not be dealt with by this House for the following reasons:

(a) The allegations made against the honourable Member do not concern his conduct in Parliament or the discipline of Parliament.

(b) That Parliament is not a proper tribunal to try a charge of sedition arising from the exercise of civilian rights of free speech at a public assembly of citizens.

(c) That the judicature is especially established and equipped and has ample power under the law to bring any person to public trial for the offence of sedition alleged against the honourable Member.

(d) that every citizen so charged is entitled to a public trial by a jury of his peers, where he would have the right to exclude by challenge biased person, from the jury panel, and that this fundamental principle of British justice should not be departed from in this case.''

7.92 The matter was debated and the amendment defeated. When another amendment was about to be moved the debate was gagged and the Prime Minister's motion carried in a division on party lines. A subsequent resolution declared the seat vacant. In the by-election which followed Mr Mahon stood for re-election; he was defeated.

7.93 Looking back to the Mahon case one is struck by these features: the speed with which the motion was brought on; the limited time for debate; the haste in which such an important matter was determined; and the vote on party lines.

7.94 The Mahon case focuses on the danger inherent in the present system-the abuse of power by a partisan vote. This danger can never be eradicated and the fact that the only case in federal history when the power to expel was exercised is a case when, we think, the power was demonstrably misused is a compelling argument for its abolition. But the argument for abolition of the power to expel does not depend simply on the great potential for abuse and the harm such abuse can occasion. There are other considerations. Firstly, there are the detailed provisions in the Constitution. In short, we already have something approaching a statutory code of disqualification. Secondly, it is the electors in a constituency or in a State who decide on representation. In principle, we think it wrong that the institution to which the person has been elected should be able to reverse the decision of his constituents. If expelled he may stand for re-election but, as we have said, the damage occasioned by his expulsion may render his prospects of re-election negligible. Thirdly, the Houses still retain wide powers to discipline Members. Members guilty of a breach of privilege or other contempt may be committed, or fined, (if our recommendation on this point is accepted). These sanctions seem drastic enough. They may also be suspended or censured by their Houses.

7.95 The most notorious expulsion case of recent times was the expulsion, in 1978, by the Indian Lok Sabha of Mrs Gandhi. The Lok Sabha invoked its penal powers on the basis that, so it was claimed, she had, in common with other persons, committed a breach of privilege and contempt of the House, inter alia, by causing obstruction, intimidation and harassment of officers collecting information for an answer to a question. She also refused to take an oath or make an affirmation before the Privileges Committee and allegedly cast aspersions on the committee. It is well known that Mrs Gandhi survived this temporary fall in her political fortunes.

7.9 While we have found it a troubling question, our view is that the balance of the argument favours the abolition of the power in the Houses to expel Members. The contrary view may be put by saying that if Parliament can be trusted with its powers in relation to contempt, the Houses should retain the power to expel their own Members. It may be argued that our view relies on one occasion when it appears the power was misused by the House of Representatives. Although the Mahon precedent is hardly encouraging, our conclusion on this matter does not rest on that case but rather on considerations of the general and worrying potential for abuse, on the specific constitutional provisions in Australia to which we have referred, and on the basic consideration that it is for the electors, not Members, to decide on the composition of Parliament. We therefore recommend:

Clause agreed to.

Senator Puplick —Mr Chairman, could I avail myself of whatever procedures are formally available to have the Hansard record formally my vote against clause 8 of this legislation.

Senator Jessop —I formally record my vote against clause 8 of the legislation.

Remainder of Bill-by leave-taken as a whole, and agreed to.

Bill reported with amendments; report adopted.