ADVICE RE THE POWER TO EXPEL A MEMBER FROM THE VICTORIAN PARLIAMENT Opinion 1. I have been asked to advise on the following questions: Is there power for the Victorian Parliament to expel a member of Parliament, if the House finds that they are in contempt of Parliament? Are there any limits to this power? Are there any legal avenues for the person subject to the expulsion to challenge, delay, injunct or appeal the Parliament s decision? If so, what is the likely success of any such action? 2. In summary, my opinion is that the Houses of the Victorian Parliament possess the power to expel one of their members. This power may be exercised at the discretion of the House, including to expel a member for contempt. If a resolution expelling a member is expressed in general terms, such as by providing for expulsion for a serious breach of privilege, any legal challenge can be expected to fail. The power to expel 3. Section 19(1) of the Constitution Act 1975 (Vic) states: The Council and the Assembly respectively and the committees and members thereof respectively shall hold enjoy and exercise such and the like privileges immunities and powers as at the 21st day of July, 1855 were held enjoyed and exercised by the House of Commons of Great Britain and Ireland and by the committees and members thereof, so far as the same are not inconsistent with any Act of the Parliament of Victoria, whether such privileges immunities or powers were so held possessed or enjoyed by custom statute or otherwise. 4. This provision establishes two propositions of law relevant to this matter:
1. both Houses of the Parliament of Victoria possesses the privileges immunities and powers held by the House of Commons as at 21 July 1855; and 2. these privileges immunities and powers exist only so far as they are not inconsistent with an Act of the Victorian Parliament. 5. As to the first point, the privileges immunities and powers held by the House of Commons as at 21 July 1855 undoubtedly included a power to punish members for a breach of privilege, including contempt. The power could be exercised at the discretion of the House of Commons. According to Erskine May s Treatise on the Law, Privileges, Proceedings and Usage of Parliament (23 rd ed, 2004), 75, the House of Commons could, and to this day may, even punish actions which: while not breaches of any specific privilege, obstruct or impede it in the performance of its functions, or are offences against its authority and dignity, such as disobedience to its legitimate commands or libels upon itself, its Members or its officers. 6. The privileges immunities and powers held by the House of Commons enabled it to impose punishments including imprisonment, suspension or expulsion. 7. It is accepted that the power to expel fell within the privileges immunities and powers of the House of Commons as at 21 July 1855. For example, the most recent edition of Erskine May s Treatise on the Law, Privileges, Proceedings and Usage of Parliament (24 th ed, 2011), 198-9 states: The expulsion by the House of Commons are one of its Members may be regarded as an example of the House s power to regulate its own constitution Members have been expelled for a wide variety of causes. 8. As a result, the power to expel a member may also be exercised by the Houses of the Victorian Parliament. 9. It should be noted that, even in a system of more restricted parliamentary privilege, such as that of New South Wales, which has never legislated to fully establish its privileges or
to connect them to the House of Commons, it is accepted that parliament may expel one of its members. Hence, the New South Wales Court of Appeal held in Armstrong v Budd (1969) 71 SR (NSW) 386, 397 that the New South Wales Parliament can expel one of its members who has inside or outside the House shown conduct involving want of probity and honesty. 10. As to the second point, the power to expel may be removed from the Houses of the Victorian Parliament by way of legislation. Such an action has been taken at the federal level, where section 8 of the Parliamentary Privileges Act 1987 (Cth) states in regard to the Commonwealth Parliament that: A House does not have power to expel a member from membership of a House. 11. No like statute has been enacted in Victoria. As a consequence, the power to expel remains vested in both Houses of the Victorian Parliament. Limits to the power to expel 12. Like the House of Commons as at 21 July 1855, the Legislative Assembly of the Parliament of Victoria possesses an unrestricted power to expel its members. Such a power may be exercised at its own discretion. 13. The width of the power to expel is demonstrated by the variety of circumstances in which it has been exercised. A member has been expelled from the Legislative Assembly on five occasions: Patrick Costello for electoral fraud in 1861; James Butters and Charles Jones on grounds of bribery corruption in 1869; Charles McKean in 1876 for criticising the Assembly; and Edward Findley in 1901 for libel of the King. 14. The New South Wales Court of Appeal in Armstrong v Budd (1969) 71 SR (NSW) 386 recognised limitations upon the power of the New South Wales Parliament to expel one of its members. For example, it was suggested that the power could only be used for
reasonable cause and not as a mere cloak of punishment. However, New South Wales has a different system of parliamentary privilege in that the privileges of its Parliament are not derived from the House of Commons but from the common law. As a result, such limits do not apply in regard to the unrestricted power to expel held by the Houses of the Victorian Parliament. Legal avenues to resist expulsion 15. Resort has been had to the courts to resist the imposition of a punishment by parliament. In response, courts have adopted an approach of non-intervention, that is, they have sought to avoid intruding into the affairs and procedures of parliament. In doing so, courts have repeatedly recognised that it is for parliament, not a court, to determine whether a privilege should be applied to a particular case. Hence, in Halden v Marks (1995) 17 WAR 447, 462, the Full Court of the Supreme Court of Western Australia stated that: the courts will not intrude on the role of Parliament and will endeavour to regulate their own proceedings so as to avoid doing so. 16. The High Court has set down the extent to which a court may review an exercise of parliamentary privilege. Writing for the Court in R v Richards; Ex parte Fitzpatrick & Browne (1955) 92 CLR 157,162, Chief Justice Dixon stated the basic principle of law as follows: it is for the courts to judge of the existence in either House of Parliament of a privilege, but, given an undoubted privilege, it is for the House to judge of the occasion and of the manner of its exercise. 17. Accordingly, Australian courts may determine only whether parliament possesses a privilege that enables it to impose the punishment. A court is not able to determine whether the privilege was exercised appropriately, such as in regard to whether the punishment was justified. 18. The High Court has since reaffirmed this approach in Egan v Willis (1998) 195 CLR 424, 446. In doing so, it indicated that it applies to a State Parliament. In Armstrong v Budd
(1969) 71 SR (NSW) 386, the approach was restated in regard to an exercise of privilege by the New South Wales Parliament. In that case, an attempt to overturn the expulsion of a member of the Legislative Council of New South Wales was unanimously dismissed. 19. The extent to which a court may intervene in a particular case depends upon how the judgement of the House is expressed by its resolution and by any warrant of the Speaker. As Chief Justice Dixon stated in R v Richards; Ex parte Fitzpatrick & Browne: If the warrant specifies the ground of the commitment the court may, it would seem, determine whether it is sufficient in law as a ground to amount to a breach of privilege, but if the warrant is upon its face consistent with a breach of an acknowledged privilege it is conclusive and it is no objection that the breach of privilege is stated in general terms. 20. In that case, the Speaker s warrants providing for the imprisonment of Raymond Fitzpatrick and Frank Browne were a sufficient answer to their applications for habeas corpus. The warrants provided for their imprisonment on the basis of them being guilty of a serious breach of privilege. As stated by Chief Justice Dixon, warrants issued in such general terms are conclusive, with the law not requiring that the particulars of the offence be set out. Where particulars are not included, it is not possible for a court to seek to ascertain them by going behind the warrant. 21. In the case of the Commonwealth Parliament, section 9 of the Parliamentary Privileges Act 1987 (Cth) has since been enacted to provide that a warrant committing a person to imprisonment for an offence shall set out particulars of the matters determined by the House to constitute that offence. No such requirement for particulars has been legislated for in Victoria. Would a legal attempt to resist expulsion succeed? 22. The law provides very limited grounds upon which to challenge the expulsion of a member from the Victorian Parliament.
23. If the Legislative Assembly expels a member by way of a resolution that merely specifies that the person is to be expelled, to use the language of the warrant in R v Richards; Ex parte Fitzpatrick & Browne, for being guilty of a serious breach of privilege, no court challenge could succeed. This is because the Victorian Parliament has an undoubted power to expel one of its members, and the law provides that an expulsion in such general terms is conclusive. 24. A further example of expulsion in general terms that would be regarded as conclusive by the courts is that imposed by the Legislative Assembly of the Parliament of Victoria upon Charles McKean. McKean was expelled for criticising other members of the Assembly, with the resolution (Hansard, Legislative Assembly, Parliament of Victoria, 27 July 1876, 186) of the House stating that: That the Hon. Mr. McKean is guilty of a breach of the privileges of this House, and that he be therefor expelled this House. 25. If expulsion occurred by way of specifying the particulars supporting the action, there would be greater scope for investigation by a court. For example, specifying expulsion due to contempt of Parliament would enable a court to determine whether Parliament possesses the power to expel a member for contempt. 26. In any event, contempt by a member can provide grounds for that member s expulsion. The grounds upon which contempt may be made out are wide, and can include corruption and misuse of parliamentary entitlements. An example of this is provided by section 9 of the Members of Parliament (Register of Interests) Act 1978 (Vic), which states: Any wilful contravention of any of the requirements of this Act by any person shall be a contempt of the Parliament and may be dealt with accordingly and in addition to any other punishment that may be awarded by either House of the Parliament for a contempt of the House of which the Member is a Member the House may impose a fine upon the Member of such amount not exceeding $2000 as it determines. As this section makes clear, the possibility of a fine is in addition to any other punishment that might be imposed by the Legislative Assembly.
27. The obligations imposed on members by this Act include those in the Code of Conduct in section 3(1)(a) as follows: Members shall (i) accept that their prime responsibility is to the performance of their public duty and therefore ensure that this aim is not endangered or subordinated by involvement in conflicting private interests; (ii) ensure that their conduct as Members must not be such as to bring discredit upon the Parliament; 28. This demonstrates that the expulsion of a member from the Victorian Parliament will not be subject to being overturned by a court if the resolution providing for the expulsion is expressed in general terms, or by way of including particulars that indicate that the expulsion has been made in response to a contempt of Parliament. 29. Other grounds of legal attack are more speculative, and even less likely to succeed. For example, courts have shown no inclination to inquire into whether the procedures adopted by parliament have granted a person a fair hearing. The extent to which procedural fairness is provided for is therefore a matter for the House itself. 30. A court might intervene if it could be shown that the implied freedom of political communication in the Australian Constitution is engaged. However, there is no suggestion in the circumstances surrounding this matter that political communication is under threat. 31. Of course, the fact that a challenge in the courts is unlikely to succeed does not prevent such a challenge being brought. Injunctive relief might be sought as part of such a challenge. Professor George Williams AO Barrister 5 June 2014