Opinion MP's aim to become mayor runs a legal risk

Politicians should serve in only one tier of government at a time. Doing otherwise can give rise to a conflict of interest, writes George Williams.

George williams 2

Professor George Williams

The list of candidates for Saturday's local government elections has a surprising addition. Joanna Gash is running for mayor of Shoalhaven City Council. She is also a Liberal member of federal Parliament who has represented the south coast seat of Gilmore for 16 years.

Service in local government is common for politicians who aspire to state or federal office. It is much more unusual for a state or federal member to re-enter local politics. Gash says she can ''offer the community more through that tier of government''.

The problem is that Gash says she will not retire from Parliament if elected mayor. She would undertake both roles until the next federal election. This runs counter to democratic principles and perhaps to the constitution.

Politicians should serve in only one tier of government at a time. Doing otherwise can give rise to a conflict of interest.

The federal Parliament is responsible for approving considerable sums of money for local government. Federal laws can also affect the rights and responsibilities of councils. Where interests do not coincide, would Gash give priority to her local government area or federal electorate?

There is also a question of capacity. Being a mayor or parliamentarian is a demanding job, and it is hard to see how one person can do justice to both.

These conflicts and problems led the Premier, Barry O'Farrell, to sponsor legislation banning local councillors from state Parliament. Most notably, Sydney lord mayor Clover Moore must resign from Parliament if she succeeds in this week's local government elections.

There is no good reason why Moore should be forced to resign from state Parliament while Gash can serve in both local government and federal Parliament. The same considerations apply, though actually with more force in Gash's case given the time she must spend in Canberra.

O'Farrell's law cannot apply to federal parliamentarians. However, there is a real prospect that Gash will breach the Australian constitution if she is elected this Saturday.

Section 44(iv) says that a person is disqualified from federal Parliament if they hold an ''office of profit under the Crown''. In 1992, the High Court applied this to disqualify Phil Cleary, who had been elected as an independent member for the seat of Wills, because he was a state secondary school teacher. He held an ''office of profit'' even though, apart from two days, he had been on leave without pay for two years.

In 1996, Jackie Kelly was disqualified as the Liberal member for Lindsay because she was an air force officer. Both Cleary and Kelly were re-elected after resigning their ''offices of profit''.

The High Court has taken a surprisingly strict approach to section 44, and the clause may also disqualify local councillors from sitting in federal Parliament. This question has yet to be tested.

The uncertainty has led political parties to exercise caution. Former Liberal senator Nick Minchin has explained how in the 1993 federal election eight South Australian candidates ''happened to be local councillors'', so he got them ''all to resign from their council positions and then all to renominate''.

Since then, the major parties have become more complacent and allowed federal candidates to retain positions in local government. This has not been challenged because it has not been in the interests of the parties to do so.

Gash is running a big risk that this will change. In particular, if elected as mayor, she will be the only local official in the current federal Parliament. Her political opponents could challenge her without threatening their own members. They may also be motivated to do so by the tight numbers in Parliament.

There is a further, financial incentive for voters to mount a challenge. The Common Informers (Parliamentary Disqualifications) Act says that a parliamentarian who has sat while disqualified ''shall be liable to pay to any person who sues for it'' $200 plus another $200 for every day the person has sat after the case is filed in court.

A High Court challenge would create an unwanted political distraction for the Coalition. Until her status is resolved, Gash could face pressure to excuse herself from Parliament. If she does not, there is a risk that laws will be passed or rejected on the vote of a person who is ineligible to sit.

George Williams is a Professor of Law at UNSW.

This opinion piece first appeared in The Sydney Morning Herald.