Expulsion of Members of the NSW Parliament

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Advice on legislation or legal policy issues contained in this paper is provided for use in parliamentary debate and for related parliamentary purposes. This paper is not professional legal opinion.


Briefing Paper No. 17/2003 by Gareth Griffith

The purpose of this Briefing Paper is to set out the law relating to the expulsion of Members of Parliament, primarily in NSW but also with reference to other selected jurisdictions.

The expulsion of a Member is an example of the power of a House of Parliament to regulate its own constitution and composition for the purpose of preserving its dignity and efficiency, as well as to preserve public confidence in the institution of Parliament. It is an ultimate sanction that is rarely used.

According to the 22nd edition of Erskine May’s Treatise on the Law, Privileges, Proceedings and Usage of Parliament, published in 1997:

The expulsion by the House of Commons of one of its Members may be regarded as an example of the House’s power to regulate its own constitution, though it is treated here as one of the methods of punishment at the disposal of the House. Members have been expelled for a wide variety of causes (at 141).

The leading case is Armstrong v Budd (1969) 71 SR (NSW) 386. In that case the NSW Court of Appeal held:

  • That in addition to the powers specifically conferred by the Constitution Act 1902 , the common law confers on each of the Houses of Parliament such powers as are necessary to the existence of the particular House and to the proper exercise of the functions it is intended to execute.
  • That in a proper case a power of expulsion for reasonable cause may be exercised, provided the circumstances are special and its exercise is not a cloak for punishment of the offender.

    The grounds for expulsion suggested by the Solicitor General and accepted by the NSW Court of Appeal were as follows:

    The Houses of the Legislature of New South Wales have inherent or implied power to exclude temporarily or permanently by suspension or expulsion members whose conduct is resolved to be such:

    (1) As to render them unfit to perform their high responsibilities and functions in the Council as Members.

    (2) As would prevent the Council and other Members thereof from conducting its deliberations and exercising its functions with mutual respect, trust and candour

    (3) As would cause to be suspect its honour and the good faith of its deliberations.

    (4) As would tend to bring the Council into disrepute and would lower its authority and dignity unless it was so preserved and maintained (at 396).

    As to the scope of the expulsion power, Herron CJ referred to cases concerning disorderly conduct, on one side, and those dealing with conduct outside the Chamber involving ‘want of honesty and probity’, on the other:

    I have already indicated that in my view the power which arises out of necessity arises not only from conduct within the Chamber but may arise also from misconduct outside the House provided it be held to be of sufficient gravity to render the member unfit for service and requiring a decision on the facts that continued membership would tend to disable the Council from discharging its duty and one necessary for protecting that dignity essential to its functions. As to the latter it would seem that conduct involving want of honesty and probity of members is just as relevant a criterion as for example disorderly conduct (at 397).

    Sugerman JA observed:

    That the proper discharge of the legislative function by the Council demands an orderly conduct of its business is undoubted. That it demands honesty and probity of its members should be equally undoubted. Indeed, the need for removal and replacement of a dishonest member may be more imperative as a matter of self-preservation than that of an unruly member (at 408).

    Wallace P summarised the Court’s opinion of the expulsion power in the following terms:

    the Legislative Council has an implied power to expel a member if it adjudges him to be guilty of conduct unworthy of a member. The nature of this power is that it is solely defensive – a power to preserve and safeguard the dignity and honour of the Council and the proper conduct and exercise of its duties. The power extends to conduct outside the Council provided the exercise of the power is solely and genuinely inspired by the said defensive objectives. The manner and the occasion of the exercise of the power are for the decision of the Council (at 403).

    Concerning the potential for abuse of the expulsion power, in Armstrong the response by Herron CJ was twofold. First, he assumed that the House would not exercise the power ‘irresponsibly or capriciously’. Secondly, he noted that an expulsion could always be appealed to the Supreme Court which has the power ‘to declare a resolution for expulsion null and void’ (at 397-8).

    In Armstrong , the Court had received in evidence the Hansard report of the debate on the expulsion resolution. Wallace P used this to satisfy himself that the grounds stated in the resolution were not only grounds upon which the House was entitled to expel, but that the resolution was based on ‘substantial material’ and was therefore not a ‘sham’ designed to gain some political or other advantage (at 403).

    Four Members have been expelled from the NSW Parliament, three from the Legislative Assembly (in 1881, 1890 and 1917) and one from the Legislative Council (in 1969). Of the other Australian States, only the Victorian Parliament has used its power of expulsion. The last occasion was in 1901. At the Commonwealth level, the expulsion power has been abolished ( Parliamentary Privileges Act, 1987 (Cth), section 8).

    Although expulsion vacates the seat of a Member, it does not create a disability to serve again in the House, if re-elected.



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