Why Gareth Ward’s challenge to the power to expel him from the NSW parliament failed

Gareth Ward, who was recently found guilty of four sexual offences, has resigned as a member of the New South Wales Legislative Assembly.

In itself, this is unremarkable. Politicians accused of serious crimes or facing the threat of expulsion typically resign first, before they are disqualified or expelled. No one wants their name in the history books for such matters.

But what is remarkable is the tortured process that occurred to get to this point.

Why wasn’t conviction enough to remove him?

Ward, the state member for Kiama, was found guilty by a jury in the District Court on July 25 of one count of sexual intercourse without consent and three counts of indecent assault.

Section 13A of the NSW Constitution says members of parliament are disqualified if they are convicted of serious offences that are punishable by imprisonment for five years or more. The offences of which Ward was found guilty fall into that category.

In the past, this would have resulted in Ward immediately and automatically losing his seat in parliament upon conviction, as is the case in the federal parliament. But section 13A was amended in 2000 so disqualification takes effect at the end of the appeal process, if the conviction still stands. This prevents a member from losing their seat if they were wrongly convicted and their conviction was later overturned.

But what if the offence is so serious it would undermine the public’s trust in the House if the convicted person remained a member during the considerable time it might take for an appeal to be determined? Could a member really serve their constituency while sitting in prison?

Parliament recognised this problem and inserted section 13A(3), which states these changes do not affect the power to expel a member.

The court challenge to expulsion

As Ward initially refused to resign and indicated he intended to appeal his convictions, he was notified by the government that an expulsion motion would be moved against him on August 5. Late on August 4, Ward’s legal team rushed to court to get an injunction to stop the expulsion motion, pending the resolution of his legal challenge to the power to expel him.

The NSW Court of Appeal held an urgent hearing on the morning of August 7, and issued its 25-page judgment later that day. It unanimously rejected Ward’s arguments, allowing the House to proceed to expulsion.

Ward had argued there was no power to expel while his criminal appeal process was underway. The court rejected this, finding the appeal process does not prevent an earlier expulsion, as clearly indicated by section 13A(3).

Next, Ward argued the expulsion was beyond the power of the House, because it was being done to punish him. The Houses of the NSW parliament do not have any punitive power to expel. They can only expel a member to protect the House and its capacity to discharge its great responsibilities with public confidence. But the court held that Ward had failed to establish that the proposed expulsion would be punitive and outside the House’s powers.

Because Ward was being held in prison, in Cessnock, he would not be available to respond in the House to the expulsion motion. He claimed this meant there was no procedural fairness. The court pointed out that Ward had been asked to submit any statement or material to the House for its consideration before the vote on expulsion. The House had not prevented Ward from attending – it was the decision of a judge to refuse him bail, sending him into custody, pending sentencing. The court concluded there is no general rule that procedural fairness requires a person to have an oral hearing before a decision-maker, and that there was no procedural unfairness in this case.

Finally, Ward argued his expulsion was inconsistent with the system of representative democracy, as it overrides the choice made by the electors. The court rejected this argument, noting that the outcome of expulsion is that voters get a fresh chance to choose their representative in a by-election. The electors of the electorate of Kiama were not disenfranchised but were instead “re-enfranchised in an orderly and expeditious way”.

The controversy over the injunction

Most controversial of all was the question of whether a judge could or should have issued an injunction restraining the House from deliberating on or passing a motion of expulsion. The courts and the Houses have long applied a principle of “comity”, under which neither interferes with the internal proceedings of the other.

Leader of the Government in the Legislative Assembly Ron Hoenig disputed the validity of the injunction, while nonetheless respecting the court’s order and voluntarily complying with it, pending an urgent hearing.

The Court of Appeal was critical of the conduct of the legal representatives for Ward, which led to the issuing of the injunction without the other side being properly notified or represented. At paragraph 88 of its judgment, it described the lack of notification as “unacceptable and inappropriate”. The deficiencies in the process of obtaining the injunction were such that no further consideration was given to the deeper issues concerning the constitutional relationship between the House and the courts.

Democracy lives on

The upshot of Ward’s resignation is that it will end the prospect of further litigation about his place in parliament. The people of the electorate of Kiama will now be able to exercise their democratic mandate in a by-election, to choose a representative who can serve them in the NSW parliament, rather than a prison cell.