Lawyers at 20 paces as Victoria's crisis turns constitutional
Labor will today try to expel controversial MP Geoff Shaw. It is acting upon legal advice, but it is likely the move will result in a legal challenge. ACIL Allen Consulting public policy and governance expert Stephen Bartos explains the looming battle.
Victoria’s state Labor opposition has said it will move a motion today to expel member for Frankston Geoff Shaw. The party has had advice from constitutional law professor George Williams that Victorian Parliament has the power to expel members, which it can exercise at its discretion. The advice suggested that a challenge to the expulsion would be unlikely to succeed, provided the motion was worded properly. Even so, if there is an expulsion motion there will almost certainly be legal action. It will be wall-to-wall constitutional lawyers at 20 paces duelling it out in the Victorian courts.
Speaking on ABC Radio National Breakfast this morning Labor shadow attorney-general Martin Pakula acknowledged that whether Parliament could expel a member was different to whether it should, and he avoided commenting on whether Williams had advised on this. In terms of good governance, the merits or otherwise of expulsion are broader than the legal issues.
Labor has indicated that the grounds for expulsion would be Shaw’s misuse of travel entitlements, a matter of privileges. All Australian parliamentarians, whether in Victoria or elsewhere, have a wide range of privileges afforded to them, including being able to make statements in the Parliament without fear of legal action (the right of freedom of speech), powers to compel witnesses, and powers to punish people found guilty of contempt of Parliament. Travel and other entitlements are among the least important; nevertheless, their misuse does affect the ability of parliaments to maintain public respect.
But as Crikey has pointed out, a Parliament expelling one of its members, no matter how unpopular, unpleasant or poorly regarded they might be by their colleagues, sets a dangerous precedent. Our system of government allows minority positions to be expressed — indeed, to combine to hold a balance of power in the Australian Senate.
We also have a separation of powers between the legislative (i.e. Parliament), executive (i.e. government) and judicial (i.e. the courts and judges) arms of government. In a Westminster system, such as applies in Victoria, the legislative and executive are blurred because the government is formed by the party with a majority in the lower house. Once the Parliament starts acting like a court and sitting in judgement on people, one of our fundamental freedoms is diminished. Whether or not that applies to a judgement about one of its own members (should the expulsion motion be carried) remains for the courts to sort out.
Even if Labor’s motion succeeds, it all seems rather pointless given that the next Victorian election is on November 29 this year. Labor has already indicated that it will pass key legislation including the Victorian budget, so why is it pressing the matter?
Expelling Geoff Shaw would trigger a byelection, and conventional wisdom is that byelections favour oppositions (and Labor almost certainly thinks it can win in Frankston). As Paul Keating is reputed to have said, always bet on self-interest: at least you know it’s trying.