Convicted rapist Gareth Ward is expected to be expelled from the New South Wales parliament on Friday after failing in his court bid to stop it.
Ward, the MP for Kiama, faced the urgent hearing in the court of appeal on Thursday after he sought an injunction against the leader of the Legislative Assembly, Ron Hoenig, to stop his parliamentary colleagues expelling him.
He commenced the proceedings on Monday night via his lawyers from Silverwater jail, where he has been remanded pending sentencing in September.
Ward was found guilty in July of sexually abusing two young men in 2013 and 2015. He is appealing against his convictions, which include three counts of indecent assault and one for sexual intercourse without consent.
Chief justice Andrew Bell oversaw the case alongside Justice Anna Mitchelmore and Justice Jeremy Kirk. Bell, who delivered the judgment, said he rejected the arguments put forward by Ward’s lawyers, saying the “notice of intention to appeal does not affect the power of the assembly to expel him”.
“There was no evidence to support the assertion that a resolution to expel the plaintiff would be punitive in scope,” Bell said.
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Soon after the judgment was delivered the government ruled out moving a motion on Thursday night, but was expected to move to expel him on Friday when the Legislative Assembly sits.
It was expected to be carried unanimously, or near unanimously, with both the Minns Labor government and the opposition indicating that they would support it.
Ward’s injunction had triggered a potential constitutional showdown after Hoenig told reporters on Tuesday the government did not believe the court had the constitutional power to restrain the parliament or any member from moving a motion in the lower house.
The hearing was then brought forward by a day after an urgent application by the parliament.
During the hearing, Ward’s lawyer, Peter King, accused the parliament of trying to conduct a “kangaroo court” and said it was among a number of reasons why parliament’s resolution to expel Ward was “punitive in nature”.
He further argued it was punitive because Ward’s expulsion would trigger a byelection and “he’s further punished in that respect, by losing the opportunity to regain his seat”.
King later compared Ward’s absence from parliament to someone who has a “serious malady or illness or cancer or something” and cannot attend parliament for nine months.
King also told the court that Ward’s convictions cannot alone be considered the “unworthy conduct” needed as grounds to expel him from parliament.
“It’s not, in our respectful submission, justice according to law to say to someone, ‘well you’ve been convicted, we’re now going to punish you by expelling you from the parliament’,” he said.
“We submit that the [common law] privilege doesn’t work that way.”
Craig Lenehan SC, who appeared on behalf of Hoenig, disputed this.
“It’s obviously open to a legislative body to form a view that a member convicted by a jury of a serious sex offence should be expelled,” he told the court.
He also disputed that the motion to expel Ward was “some sort of illicit punitive purpose”, arguing there was no evidence of this.
King told the court the parliament should at least hold off until after 19 September, when Ward was due to be sentenced.
“If he’s acquitted,” he said, referring to the fact the matter was now under appeal, “and he’s lost all the rights that an innocent man would otherwise have, his career has been trashed.”
The only option for Ward now would be an appeal to the high court.
The parliament has power to expel a member if it is necessary to maintain the integrity of the parliament and to protect itself.
It can expel a member for “unworthy conduct” that would tend to undermine the parliament’s reputation in the eyes of the public.
But it cannot exercise the power to punish a member. Ward argued that expulsion was punitive because it would trigger a byelection he would be further punished by losing the opportunity to regain his seat.
