Bad men problem: Gareth Ward and Mark Latham leave NSW parliament in unchartered territory

The Guardian

2 days ago

The New South Wales parliament has a problem with men behaving badly. But more to the point, it seems to have an inability to deal with it.
On Tuesday, the parliament will try to deal with two very different cases that share a common consequence: damage to its reputation as an institution.
Despite being a convicted rapist in custody awaiting sentence, Gareth Ward, the MP for Kiama, remains a member of the Legislative Assembly, drawing a base salary of more than $170,000 courtesy of NSW taxpayers.
Labor plans to move a motion to have him expelled when parliament resumes on Tuesday and the opposition has said it will support it.
Expelling Ward will almost certainly lead to more litigation, especially as the government will probably try to call a byelection in his south coast seat soon after.
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But first to backtrack a little.
Most politicians being investigated or facing criminal charges choose to resign, or their parties put the pressure on the MP to draw a line under their faltering political career.
But Ward has toughed it out and continues to claim his innocence, despite being convicted for serious sex offences against two young men. He was suspended and left the Liberal party in 2022 after being charged with sex offences. He then ran as an independent in the 2023 state election and was returned by the voters of Kiama.
Now that he has been convicted, he faces a potential sentence of more than five years.
Under section 13A of the NSW constitution, a person is ineligible to be an MP if they are convicted of an offence punishable by five years or more.
But it's only counted as a conviction once the person has reached the end of the appeals process and has not had their conviction overturned, constitutional expert Prof Anne Twomey says – and Ward has confirmed he plans to appeal the verdict. The appeals process could take years.
The other route is expulsion. The NSW constitution does not give a specific power to expel a member, but Twomey says there is an inherent power for the NSW parliament to expel an MP to protect itself and its proper functioning.
This appears to be where the premier, Chris Minns, is headed – but it is relatively untested territory.
The courts have ruled that expulsion must not be as punishment, but it can be done to protect public confidence in the integrity of the parliament.
If Ward is expelled, a byelection would need to be held to replace him, which only adds to the complications. Would Ward seek an injunction to prevent the byelection while he appeals both the expulsion and the criminal conviction?
Understandably, there are few cases to guide the way – the last time an MP was expelled from the NSW lower house was in 1917.
But what is certain is that unless Ward resigns voluntarily, litigation appears inevitable. The first stop will be the supreme court, followed by a possible high court appeal.
For those who want a deeper dive, Twomey's podcast, Constititional Clarion, explores all the twists and turns that could emerge over coming weeks.
The controversial independent upper house member Mark Latham is also under the microscope but for entirely different reasons.
The former One Nation MP is under scrutiny over his use of privilege within the chamber and his general standard of behaviour, which Labor has been calling out of late.
Has the Minns government suddenly found a new moral rectitude? Or is the premier motivated by more base political considerations? Latham has been working with the opposition and crossbench to block changes to workers compensation legislation that the government dearly wants passed.
In parliament, Minns has called him 'one of the most shameful bigots in NSW' who has an 'odious Twitter account', which he deployed for a 'disgusting homophobic attack' on independent MP Alex Greenwich.
More recently prurient allegations about Latham's personal life have spilled into the public domain due to a relationship breakdown, which have added fuel to the fire of outrage.
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These are the subject of a case seeking a domestic violence order that he is vehemently contesting. As the relationship degenerated, allegations from court filings including leaked texts about female MPs and other unsavoury exchanges have found their way into the public domain.
Latham's behaviour raises questions of respect for the parliament and female MPs, and whether the behaviour is appropriate in any workplace.
Latham allegedly covertly photographed female workmates and shared the images with derogatory commentary. If true, in any other workplace, that would at the least prompt counselling, a warning or possibly dismissal.
Then there is Latham's use of parliamentary privilege. Privilege exists to allow politicians to speak freely without fear of defamation, but Latham arguably pushes its limits.
He is a blunt, borderline-rude interrogator of witnesses before committees.
In the chamber he has used privilege to attack his enemies, such as Greenwich, who won a $140,000 defamation settlement against Latham in 2024, and domestic violence campaigner Rosie Batty.
Last month Latham outraged colleagues by talking about Greenwich's medical records, which had been produced as part of a separate case Greenwich has brought against Latham in the NSW civil and administrative tribunal.
But can the upper house actually mete out a punishment or persuade Latham to alter his behaviour? The answer is probably no.
Labor plans to move two motions in the next sitting period, which starts on Tuesday: one relating to a specific breach of privilege and another more general censure.
Labor will allege that Latham breached privilege in relation to certain documents about the former police commissioner Karen Webb and investigations into gifts of gin that were produced on the basis that only parliamentarians could view them.
Labor wants Latham referred to the privileges committee for breaching the order, something he disputes.
The allegations of exposing medical records, taking covert photos and perhaps other actions are likely to be wrapped up into a censure motion condemning his behaviour.
But as for meaningful outcomes, don't hold your breath.
The privileges committee could recommend an apology or perhaps a suspension, but that is rare.
Labor lost control of this powerful committee a month ago after a dispute with the crossbench and the opposition. They combined to cut a Labor member so control of the now seven-member committee is out of Labor's hands.
And what of a censure? It is likely to be little more than a slap on the wrist for Latham, while he enjoys the notoriety and attention that this latest saga will bring.
The problem for the NSW parliament is that its rules to set and enforce appropriate standards of behaviour are hopelessly outdated, its processes are archaic and it has failed to implement many of the recommendations from a report by Liz Broderick completed two years ago.
The federal parliament has moved to establish a standards commission with real teeth to fine or even suspend parliamentarians for poor behaviour outside the chamber. It is still to be tested but it is a start.
Instead, in NSW, we will spend weeks on the immediate crises that will further lower the parliament's standing in the public eye, without dealing with the real problem of cultural change that is sorely needed.