The odds on an early Victorian state election appear to have lengthened following yesterday’s lively resumption of Parliament, in which the government headed off Labor’s bid to expel troublesome independent MP Geoff Shaw.

Premier Denis Napthine also unveiled an artful response to the difficulty his government faces with respect to Shaw, who holds the swing vote in the finely balanced Legislative Assembly and has been found to have used his parliamentary car to pursue personal business activities.

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The government will today proceed with a motion to suspend Shaw from Parliament for 11 days and proceed with his expulsion if he does not repay $6838 by September 2.

With Labor evidently unwilling to take advantage of Shaw’s stated position that he would support a motion of no confidence in the government, this formulation could well prove an acceptable compromise for Liberal MP Ken Smith, who has said he would cross the floor to support Labor’s bid for Shaw’s immediate expulsion.

The Age reports today that Smith is indeed “understood” to be “close to being convinced to support the government’s position”.

This would stall any expulsion move until it was too late to hold a byelection for his marginal seat of Frankston ahead of the November 29 state election, a date that would have to be brought forward if Labor were able to tie up the parliamentary numbers by winning the seat.

The situation has focused attention on the murky question of Parliament’s power to expel elected members it deems to be in contempt, which Labor sought to clarify this week by proffering advice from constitutional expert George Williams that such power is “unrestricted”, and unlikely to be effectively challenged in court.

A similar scenario played out just a few months ago in the Queensland Parliament, which like Victoria’s derives its contempt powers from the ancient prerogatives of Britain’s House of Commons. The recalcitrant MP on that occasion was Scott Driscoll, who like Shaw had run into legal trouble not long after winning a seat from Labor at an election that brought a conservative government to power. When the parliamentary ethics committee made a finding of contempt against Driscoll, he stalled a move to expel him by resigning, citing health reasons.

This initiated a byelection for his northern Brisbane seat of Redcliffe on February 22, which Labor won with a swing of 17.2%.

A similar precedent was set in the New South Wales Legislative Council in 2003, when Malcolm Jones of the Outdoor Recreation Party resigned ahead of his looming expulsion after the Independent Commission Against  Corruption ruled he had engaged in corrupt conduct relating to parliamentary entitlements. The ICAC ruling recommended the Legislative Council consider expelling Jones, and when it began proceedings to do so, Jones, like Driscoll, resolved the problem by resigning.

The circumstances surrounding Shaw are more fraught, and by extension better illustrative of the dangers attending the power of expulsion.

As Jones was a member of the upper house, his vacancy was filled by a nominee of his own party, and did not require a byelection or have any bearing on the chamber’s partisan balance. Furthermore, the move was clearly untarnished by partisan political calculations, having been initiated in direct response to a recommendation by ICAC.

By contrast, the only authority for a Labor-sponsored move against Shaw would be a minority report brought down by its own members of the privileges committee, criminal charges having been dropped in December on the basis that there was no reasonable prospect of conviction.

While the move against Driscoll was murkier, it at least had bipartisan support, although it might well have been otherwise if the government’s majority had been at stake.

The issue of expulsion would notably not arise in the federal Parliament, which in 1987 legislated to deprive itself of a power it had last exercised in 1920, on the archaic grounds that Labor MP Hugh Mahon had made “seditious and disloyal utterances” in relation to British policy in Ireland.

Federal parliamentarians can nonetheless lose their seats if they are declared bankrupt or convicted of an offence carrying a potential jail term of one year or more, as was widely canvassed in relation to Craig Thomson during the last Parliament.

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Peter Fray
Peter Fray
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