Why MPs should be kept to same standards as employees
It’s time to hold our politicians to the same standards as employees when it comes to improper conduct, argue Gabrielle Golding and Peta Spyrou.
Photo: InDaily
Politicians are not employees. They cannot be ‘dismissed’ from employment. After all, they are not technically ‘employed’ at all. Yet the standards that society holds them to for bad behaviour out-of-hours are much like that of employees.
We rightly chastise those politicians who behave badly out-of-hours, especially when that behaviour is criminal in nature. The paradox is that our state and federal laws give politicians who engage in improper (even criminal) conduct in their private time much more leeway than they do for employees—in other words, the ‘rest of us’.
For employees, according to Rose v Telstra, out-of-hours conduct (which may or may not be criminal in nature) may be grounds for dismissal from their employment where: ‘viewed objectively, it is likely to cause serious damage to the relationship between the employer and employee; or the conduct damages the employer’s interests; or the conduct is incompatible with the employee’s duty as an employee’.
For politicians, on the other hand, the standard for needing to vacate their seat in parliament is substantially lower.
Taking one state-based example, the South Australian Constitution Act 1934 (SA) has sections requiring that a member’s seat, in either the lower or upper House, be vacated if they are ‘convicted of an indictable offence’.
While these powers exist, it is ultimately up to the House itself, to determine what happens next. South Australian Parliament effectively becomes judge, jury, and executioner when it comes to a politician’s ability to retain their seat.
Troy Bell MP, former Liberal, now the Independent Member for Mount Gambier in South Australia’s lower house, was recently found guilty of stealing over $400,000. Although he is yet to be sentenced, Bell said his lawyers will appeal the decision. Tom Koutsantonis MP, leader of government business said if Bell did not appeal his conviction, the government would have tried to remove him from parliament.
However, since Bell will appeal, the government is letting him remain in parliament for now. If he were employed, it is highly unlikely that he’d remain in employment, given the standard set by Rose v Telstra.
Another South Australian MP, David Spiers, has shown an intention to act differently, following news of his own arrest on drug charges. Rather than waiting for his day in court to contest his charges, Speirs announced that he would resign from the South Australian Parliament in the next sitting week.
The legal position is slightly different at the federal level. Section 44(ii) of the Constitution requires members who have been convicted and sentenced, ‘or subject to be sentenced, for any offence punishable … by imprisonment for one year or longer … shall be incapable of being chosen or of sitting as a senator or a member of the House of Representatives’.
Federal Parliament has also recently introduced a draft Code of Conduct intended to stamp out bad behaviour by politicians. However, that Code remains in draft form. It also does not create a statutory-based standard to which we must hold politicians accountable when they misbehave in their private time. It hands over power to an Independent Parliamentary Standards Commission to review complaints, with the ability to impose sanctions (which may include suspension, removal from committees, or a fine). While lacking legislative ‘teeth’, perhaps this development is better than nothing at all!
It goes without saying that we do not expect to be represented by someone who is arrested on drugs charges, or who engages in theft. If an employee engages in lewd, even illegal, conduct out-of-hours, they may be lawfully and summarily dismissed from their employment.
However, as matters stand, our law and process of parliament could well permit a politician to retain their seat. The law needs to now catch up to hold our politicians to account – and to the same standards as employees insofar as out-of-hours conduct is concerned.
Dr Gabrielle Golding is a Senior Lecturer in Law at the University of Adelaide who specialises in employment and contract law.
Dr Peta Spyrou is a Lecturer in Law and Co-coordinator of the Pathways to Politics Program at the University of Adelaide whose expertise is in disability discrimination and the intersection between politics and the law