Embattled New South Wales MP Gareth Ward faces a government push to suspend him from parliament on Thursday, following legal advice about a “significant risk” that expelling him would lead to a “permanent or temporary” stay on a criminal case against him.
Ward was charged on Tuesday over allegations of sexual abuse against a man and a 17-year-old boy dating back several years.
The Kiama MP denied the allegations and said he will be fighting the charges, but did not indicate if he planned to leave parliament while he did so.
The deputy premier, Paul Toole, said a suspension motion would be introduced on Thursday. If passed, it would mean Ward could no longer sit as an MP or represent the electorate of Kiama.
While the government said it did not have the power to “withhold a member’s remuneration”, Toole said separate legal advice had been sought on what steps it could take to restrict his pay and entitlements as an MP.
The government was also investigating whether another MP could represent Ward’s electorate of Kiama in the interim to ensure voters weren’t “denied services”, Toole said.
Legal experts questioned the suspension motion, with Sydney University constitutional law expert Prof Anne Twomey saying it could lead to issues for the people of Kiama who elected him to represent their interests if he was sidelined during a potentially lengthy trial.
“If the consequence of being suspended is that the relevant electorate isn’t being adequately represented in the house, and if that’s happening for a long period of time, that becomes problematic,” Twomey said.
“There’s a suggestion that actually suspension for a long period of time is actually worse than expulsion. Many criminal cases take a really long time.”
The laying of charges against Ward prompted the premier, Dominic Perrottet, to threaten to “remove” Ward from parliament if he refused to quit.
But on Wednesday, the government changed tack. Toole said that following legal advice, the government would instead move to suspend Ward from parliament until a verdict is reached in the criminal case against him.
“This is about justice, this is about ensuring the process is being followed correctly here,” Toole said.
That advice, tabled by the government on Wednesday, states there was a “significant risk” that any move to expel Ward from the parliament would lead to a “temporary or permanent stay of criminal proceedings” against Ward.
“This is because the valid exercise of the expulsion power would require the Legislative Assembly to take action that assumes or infers the guilt of the member of the offence charged,” the advice stated.
It’s understood the government had come under pressure from some of its own MPs over the push to expel Ward, with concerns – also held by some in the opposition and crossbench – that it would set an uncomfortable precedent to remove an elected MP who had been charged but not convicted of a crime.
Toole denied that on Wednesday, saying there had “been no pushback” from within the government’s ranks. He also insisted the decision had not been affected by the possibility of a byelection in Ward’s seat just months after the government lost the safe south coast seat of Bega.
The government on Wednesday suggested it had not been considering expelling Ward despite Perrottet’s earlier statement. The finance minister, Damien Tudehope, insisted the premier had not suggested he would seek to expel the MP.
“[Perrottet] used the words excluded from the house – he did not use the word expelled,” Tudehope said.
But the advice makes plain the government was considering expelling Ward from the parliament.
At 8.16pm on Tuesday night, a department deputy secretary wrote to the NSW crown solicitor’s office seeking “urgent advice on the legal risks” associated with either expelling or suspending Ward.
The advice, sent on Wednesday morning, states that while it was “not possible” in the “time available” to form a “definitive view” on the likelihood of a stay of proceedings, it “may increase the risk”.
The advice also stated there was a risk Ward could argue a court “should decline to exercise jurisdiction” in the matter if parliament “purports to exercise jurisdiction”.
The Labor opposition had said it would support an expulsion motion, and the party’s leader, Chris Minns, said the party would now seek its own legal advice to “inform its position”.
He criticised the premier for what he labelled a “rapid and major backdown”.
“This backdown means the people of Kiama will go without state representation for the next year – that is unacceptable,” he said.
Twomey said that meeting the grounds for expulsion under standing order 254 – that a member was guilty of conduct unworthy of a member of parliament – would have been difficult without an official body having found Ward guilty.
“There’s no finding by any sort of independent investigation, any sort of court or a commission of inquiry that normally is what tends to support these things,” she said.
UNSW constitutional law expert Prof George Williams agreed there was a “grey area” given Ward had been charged but the allegations had not been tested.
It raised questions over how serious the allegations and charges would need to be for someone to be removed without conviction.
“We’re clearly only looking at the most serious offences, so something that didn’t involve a lengthy jail term or the like you would not expect [to be] sufficient,” Williams said.
“It really depends upon broader issues at stake and there is no clear threshold.
“There is no simple answer to this.”
The motion to be heard on Thursday would see Ward suspended “until the verdict of the jury has been returned on the five criminal charges laid against him yesterday”.
In the motion, Toole conceded the parliament “does not have the power to withhold a member’s remuneration” but said the government “has sought advice on options” to “affect the withholding” of his “remuneration and all other entitlements”.
The charges laid against Ward on Tuesday came more than 10 months after he was forced to step aside as a minister and moved to the crossbench after revealing he was the subject of the police investigation.
During that time he has continued to act as an MP, including visits to schools and lobbying ministers.
On Wednesday, Labor tabled a motion flagging that it would seek all correspondence between ministers and Ward since he stepped aside last May, as well as any documents “relating to the Member for Kiama visiting, or requesting to visit, public schools”.
