Common(wealth) Knowledge #51: To expel or not expel, that is the question

Moira Deeming may not be the only MP facing expulsion in 2023.

Moira Deeming has been expelled from the parliamentary Victorian Liberal Party following a vote by MPs. This vote came after a similar motion was put forward six weeks ago, but failed after a compromise was struck to suspend Deeming from the party for 9 months. But these are just two of the forms of punishment that parties have available to punish rogue or dissident members.

The simplest form of punishment, and one that Deeming has demanded from Opposition Leader John Pesutto for allegedly suggesting she was a Nazi sympathiser, is a formal apology. This can be an oral apology, given at a press conference, or a written apology, in a press release or, as Deeming demands of Pesutto, a post on the MP’s website.

The most severe form of apology, and one that the Speaker of the House of Representatives or President of the Senate may demand for particularly inappropriate remarks made in Parliament, is an apology given in Parliament. This apology is recorded in Hansard, which contains every word said in Parliament, so is recorded for history.

The next level of reprimand is censure. This is a vote by one House to strongly condemn the actions of a sitting member of Parliament from either House. In the Australian Parliament, there have been many censures in the 21st century.

Prime Minister John Howard has famously been censured twice by the Senate. The first of these was in March 2002, when Liberal Senator Bill Heffernan violated Standing Order 193, one of the procedural rules of the Senate, by using forged documents to suggest that High Court Judge Michael Kirby, the first gay judge from that court, was using a Commonwealth government car to facilitate having underage boys delivered to him for sexual purposes. Because the Liberal/National government didn’t have a majority in the Senate, the Senate censured Heffernan, as well as Howard, for failing to take disciplinary action.

The censure of Heffernan demonstrates the importance of parliamentary privilege. The judicial system cannot punish a politician for something they said within the Houses of Parliament, nor can they be sued. That oversteps the boundary created by the separation of power; rather, Parliament is expected to punish its own members. For this reason, Section 50 of the Australian Constitution lets each House create its own rules and orders.

Howard was also censured for misleading the Australian public and government about weapons of mass destruction in Iraq. More recently, Senator Fraser Anning was censured by the Senate for suggesting that the Christchurch massacre was linked to immigration. This motion to censure had almost universal support, with only One Nation refusing to vote for censuring Anning. Anning’s comments also led to the famous ‘egg boy’ attack. In 2022, former Prime Minister Scott Morrison was censured for secretly holding multiple ministries, and the same year, then-Greens Senator Lidia Thorpe faced calls for her to be censured for failing to disclose her relationship with a bikie gang boss.

Sanction, suspension, and expulsion motions are party-specific. They don’t involve a vote by an entire House.

Sanctions are somewhat similar to censures. They are a condemnation of the actions of a particular party member. The sanction of Deeming’s ally, Renee Heath, also demonstrates that this can involve being stripped of any leadership or cabinet positions.

Suspensions also involve losing leadership and cabinet positions, but for a different reason. Suspension is the temporary removal of a person from a political party, which means they cannot hold any titles within the party. Deeming initially faced a 9-month suspension and the loss of her role as Opposition Whip in the Legislative Council of Victoria.

Expulsion is the permanent form of suspension. A person is completely removed from the political party, and usually won’t be able to rejoin.

Confusingly, Parliament also has the ability to suspend someone. Usually only lasting for a few sitting days, a House can vote to suspend a member from sitting in that House. They are unable to participate in Parliamentary business or cast any votes. Importantly, suspensions are based on days when that House is sitting, so a suspension for two sitting days could actually mean two calendar weeks, if Parliament only sits for one day in each calendar week.

It’s worth mentioning that Section 49 of the Constitution applied the rules and privileges that existed in the UK’s House of Commons at the time of Federation to the Australian Parliament. This included the parliamentary privilege discussed above. It also included the ability to expel MPs, and was exercised once, to expel the Irish republicans and Labor MP Hugh Mahon from Parliament for ‘seditious comments’ after he called the British government a ‘bloody accursed empire’ after a friend died while on hunger strike in Ireland. When the Parliamentary Privileges Act 1987 (Cth) was passed under Section 49 to properly establish the rules and privileges by legislation, Section 8 removed his power.

Some states still have the expulsion power. It was last exercised in NSW in 1969, and when challenged in the New South Wales Court of Appeal in Armstrong v Budd (1969), President Wallace said, at 403, that it exists as “a power to preserve and safeguard the dignity and honour of the [Legislative] Council and the proper conduct and exercise of its duties.”

Although it seemed for a while that no Parliament would go further than to censure an MP, leaving suspension and expulsion as punishments purely given out in individual political parties, the trial of NSW Independent MP Gareth Ward for sexual assault means that expulsion by Parliament may once again become a thing in New South Wales. He was suspended before the trial, but unless his sexual assault charges can be proven, he cannot be expelled from Parliament.

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Sources:

Armstrong v Budd (1969) 71 SR (NSW) 386.

Commonwealth of Australia Constitution Act 1900 (Imp) 63 & 64 Vict, c 12.

Parliamentary Privileges Act 1987 (Cth).