Screen Shot 2015-08-06 at 11.08.33 amBY ALYSIA BLACKHAM AND GEORGE WILLIAMS

In March 2016, in what might have been the final stage of the ongoing Craig Thomson saga, the federal Parliament reprimanded Thomson after finding him in contempt for deliberately misleading Parliament. At a time when there is increasing parliamentary and public interest in the establishment of a federal integrity commission, Parliament’s response to Thomson’s conduct highlights the need for reforms to address gaps in the current accountability of members of Parliament.

In 2012, a Fair Work Australia report was released which found that federal Labor MP Craig Thomson had committed 156 breaches of workplace laws while employed as a union official, including by spending almost $6,000 on escort services using union credit cards. Responding to the FWA report, Thomson made a speech to Parliament in which he denied these findings. Thomson said:

Turning to credit cards and escorts, I have consistently from day one denied any wrongdoing in relation to these issues. I make it clear—and I hope I have already by painting a picture—that I had many enemies in the [Health Services Union], many enemies who did not like increased transparency, many enemies who preferred that there be no national office.

Thomson categorically denied any wrongdoing, and made allegations of a ‘witch-hunt, without evidence, based on just accusations’ and misconduct against a variety of other actors.

Thomson’s speech was raised as a matter of privilege in 2012, though the inquiry was suspended until the conclusion of judicial proceedings. In 2014, Thomson was found guilty of a number of offences of dishonesty relating to his role on the union. The matter was then referred to the privileges committee.

In March 2016, the Privileges Committee in its report found that Thomson’s statement was ‘at odds with the findings of the court’. Further, the deliberate and formal nature of his statement led to ‘a reasonable presumption … of Mr Thomson’s intention to mislead the House’, and there was no evidence to rebut the presumption. It concluded:

Given these findings, the committee considers that the deliberate misleading of the House in the circumstances of this case would be likely to amount to an improper interference with the free exercise by the House of its authority or functions, and finds Mr Thomson’s conduct in deliberately misleading the House constitutes a contempt of the House.

In response to such a finding, the committee had power to recommend a term of imprisonment of up to six months or a fine of up to $5,000. Instead, the Committee recommended only that Thomson be reprimanded for his conduct. Accepting this recommendation, Parliament reprimanded Thomson.

As we have written previously, relying on parliamentary privilege in this way to manage parliamentary members’ misconduct is beset by a number of challenges. Cases of misconduct are often not matters of parliamentary privilege. For example, the accusations against Thomson did not raise matters of parliamentary privilege except to the extent Parliament may have been misled. The use of privilege in this case was particularly problematic, as the matter related to Thomson’s conduct prior to becoming an MP: the only aspect of conduct that occurred during Thomson’s time in Parliament was the misleading of the House.

The utility of parliamentary privilege may also be limited by political partisanship as the imposition of a penalty through parliamentary privilege requires the support of the House. As a result, a government majority in the House of Representatives may vote to protect its own members from scrutiny, while imposing more severe penalties on members of the opposition. As a former MP, however, Thomson was unlikely to be shielded from scrutiny by political allegiances.

The Thomson case provides an example of where parliamentary privilege proved ineffective to manage misconduct by a politician. The process took four years to be completed, by which time Thomson had left Parliament; and the ultimate penalty – a reprimand – was very weak.

While a range of accountability mechanisms for misconduct are already in place in the Australian federal Parliament, the system has a number of gaps. There is currently no effective mechanism for securing short-term accountability for misconduct by members of Parliament. As a result, rather being managed via a specific mechanism, matters of conduct tend to be played out in the federal Parliament and media, often in a way that enhances public distrust of politicians and public institutions while not actually resolving the underlying issue. This is certainly what has occurred in the Thomson case: in the weeks and months following the release of the Fair Work Australia report, Thomson’s alleged behaviour was extensively criticised in the media and in Parliament, to the point where some feared for Thomson’s wellbeing. The conduct of the politicians involved in this debate has been variously described as ‘low and dirty’, ‘childish or amateurish’, ‘grubby’, ‘getting into the gutter’, a ‘high farce’ and ‘a very low point in politics’. Others raised concerns that the process was having a ‘corrosive effect’ on democracy due to a growth in distrust of politicians and noted that ‘public standing of Parliament and politicians is in dramatic decline and public confidence in the democratic system in crumbling’. According to former Independent MP Rob Oakeshott, the Thomson affair caused ‘significant damage both short and long term with regard to public confidence and public trust in the Australian Parliament itself’.

Drawing on comparative experiences, we have therefore proposed a model of extended accountability for Australian parliamentarians, to improve the accountability of members of Parliament for their conduct. We propose:

  • the adoption of a uniform Code of Conduct in the standing orders of the Senate and House of Representatives that includes both:
    • aspirational principles and rules of conduct that extend to conduct that ‘significantly damages the public’s trust and confidence in the integrity of the Parliament or its Members’ or has the potential to do so; and
    • accompanying guidelines which provide examples of what conduct may cause or have the potential to cause such ‘significant damage’;
  • the establishment of a Parliamentary Ethics Adviser for both houses of Parliament under parliamentary standing orders to provide advice on the implementation of the Code and ethical matters generally;
  • the establishment of a Parliamentary Integrity Commissioner for both houses of Parliament under parliamentary standing orders to investigate breaches of the Code, provide advice to members on standards of conduct and review the operation of the Code;
  • the establishment of a Joint Standing Committee on Parliamentary Standards to oversee the work of the Commissioner, review reports of the Commissioner and refer reports to the relevant house of Parliament to consider what sanctions, if any, are appropriate. If the Committee does not refer a report, it should automatically come on for debate in the relevant house of Parliament. The Joint Standing Committee should only be able to reject a report of the Parliamentary Integrity Commissioner on procedural grounds or if salient evidence has not been properly considered, in which case the report should be referred back to the Commissioner to be rectified;
  • provision for the Parliamentary Integrity Commissioner to undertake investigations of breaches of the Code following complaints from the public, referral from either House of Parliament or the Joint Standing Committee or of their own volition; and
  • the amendment of the Parliamentary Privileges Act 1987 (Cth) s 7(5) to enable Parliament to be able to impose fines on its members for breaches of the Code.

The Thomson affair provides significant support for these arguments, and reinforces the limits of the current system for securing accountability for parliamentarians’ conduct.

Dr Alysia Blackham is a Senior Lecturer at the University of Melbourne. Professor George Williams is the Dean, the Anthony Mason Professor and a Scientia Professor at UNSW Law.

Suggested citation: Alysia Blackham and George Williams, ‘Craig Thomson and the Limits of Parliamentary Accountability for Misconduct’ on AUSPUBLAW (21 June 2016) <https://auspublaw.org/2016/6/craig-thomson/>