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.
