A lawyer for Gareth Ward has described state parliament’s lower house as a “kangaroo court” as he argued against the expulsion of the NSW MP convicted of sex offences.
The independent Kiama MP, who is in custody after his bail was revoked last week, is seeking orders from the Court of Appeal to prevent the legislative assembly from expelling him.
Ward’s barrister, Peter King, told the court on Thursday his expulsion from parliament would amount to punishment and a denial of procedural fairness.
“His existing right as a member of the assembly to speak in the debate to oppose the resolution is lost,” Mr King said.
“So in short he is to be expelled by a kangaroo court.”
Convictions ‘not a sufficient basis’ for an expulsion, says Ward’s lawyer
Ward was convicted by a jury last month of one count of sexual intercourse without consent and three counts of indecent assault against two young men.
Mr King claimed the mere fact of the convictions was “not a sufficient basis” for an expulsion.
“The test [for expulsion] is conduct unworthy,” he said.
“The short point that I’m making about the content of the letter [from the government notifying Ward of the proposed expulsion motion] is that it specifies no unworthy conduct. It doesn’t mention the phrase at all.”
Gareth Ward was convicted by a jury last month of one count of sexual intercourse without consent and three counts of indecent assault against two young men. (ABC News: Patrick Thomas)
Chief Justice Andrew Bell pressed the barrister on whether he was arguing the convictions did not meet that description.
“Are you seriously submitting that convictions of the counts … are not conduct unworthy?” Mr Bell said.
“The four counts are evidence of the fact of conviction but they’re not evidence of the facts which underlie that conviction,” Mr King said.
Mr King pointed to employment cases where someone convicted of an offence asked the workplace tribunal to prevent their termination prior to an appeal.
“What the tribunal does is to stay the civil matter pending the determination of the criminal matter, so that if there’s acquittal, they can be completely reinstated,” he said.
Ward’s barrister stressed procedural fairness was an important principle as “we want to attract good people to the parliament”.
“We want to attract people who are going to say, ‘Well, this is not just a kangaroo court, this is not just a case where the numbers will override individual rights, where parties are going to treat independents and others who have their own aspirations different to the majority trammelled’,” Mr King said.
Expulsion powers designed ‘not to punish but protect’
The defendant in the case was frontbencher Ron Hoenig, the Leader of the House.
Craig Lenehan SC, for Mr Hoenig, argued the state’s constitution did not preclude the legislative assembly from exercising its “implied power” of expulsion.
The defendant in the case was frontbencher Ron Hoenig, the Leader of the House. (ABC Riverina: Nicola Ceccato)
Mr Lenehan referenced section 13A, which provides that MPs can be expelled for a serious criminal offence subject to appeal.
It also says: “Nothing in this section affects any power that a House has to expel a Member of the House.”
“Your honours see the words ‘nothing affects’, which mean what they say,” Mr Lenehan said.
Chief Justice Bell said engaging the power of expulsion was “by definition for protective purposes”.
“It’s not to punish but protect,” the judge said.
Mr Hoenig’s barrister argued the expulsion of Ward would not be punitive.
“It’s obviously open to a legislative body to form a view that a member convicted by a jury of serious sex offence should be expelled in order to protect the mutual trust and confidence of its members,” Mr Lenehan said.
“That self-protective process is so strong that it will be very difficult to establish some sort of illicit punitive purpose,” he said.