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Sex sells, and none more so than when done illicitly with the potential to bring down an entire government. But can Craig Thomson actually bring down the Government? He may be pushed out by s 44 of the Constitution, which relevantly states:

“Any person who… has been convicted and is under sentence, or subject to be sentenced, for any offence punishable under the law of the Commonwealth or of a State by imprisonment for one year or longer… shall be incapable of being chosen or of sitting as a… member of the House of Representatives”

According to Odger’s Senate Practice, Thomson must be ‘convicted and subject to be sentenced’, ie if “if he or she is awaiting sentencing but also if he or she has been given a suspended sentence, subject to certain conditions being met”. The leading case is the High Court decision in Nile v Wood (1988) 167 CLR 133.

So the question is how long it will take to ‘convict’ Thomson. The difficulty is that Thomson has a constitutional and common law right to a fair trial which will certainly delay things. Will it delay it past the next election? I’m not familiar enough with criminal law and procedure to say so, but many journalists at least are saying it will take two years to convict. I myself suspect the court will be more than happy to expedite things, subject to giving Thomson sufficient time to prepare his defence. This may not be as long as you think – he had been prepared for a defamation case based on the same facts so the evidence has been gathered.

The other possibility is that Thomson may simply resign. There may be a convention for such MPs to resign, but they are based upon political calculations. It does more damage for a party to hold a potentially criminal MP than to let him go. That calculus shifts radically when that MP holds the balance of power – the ALP would rather suffer the political damage of having an alleged criminal in its ranks than lose Government altogether. And such a convention, even if it can be characterised as a constitutional convention, cannot overcome the plain words of s 44. It is unenforceable by a court of law.

The choice, however, does not lie in the ALP’s hands but in Thomson’s hands. He may decide to leave the political scene to protect himself from further reputational damage. The track record for backbenchers finding employment after losing their seat is not great as things stand. He may decide to attempt suicide; there are reports the ALP has kept a watchful eye over Thomson for this reason. Or, he may simply crack under the intense pressure placed on him by the media and Opposition and resign for psychological reasons; men are never always rational.

So whilst s 44 itself is probably ineffective to achieve the Opposition’s aims, its very existence could lead to an early election. In any case, the opportunity to attack the Government on an issue on which Abbott cannot possibly lose votes cannot be better for the Opposition.

Edit: My friend mentioned another possibility – that the rural independents could vote for a motion of no confidence. But the appropriate question is in whom will they have no confidence? They are not required to have confidence in Mr Thomson; the House cannot, by majority vote,  kick a democratically-elected member from its ranks whilst remains eligible to be an MP.


They can remove a Minister from office, or even the Government from office by a vote of no confidence. But it is a very great stretch to say that this Government, being supported by a potential criminal, ought to be removed for tolerating that criminal to remain in their ranks whilst he remains constitutionally eligible to do so. And there doesn’t need to be any link between Thomson and the no confidence motion. This just restates what we always knew – the independents may, at any time, remove the Government from office and put Tony Abbott into the Prime Minister’s office.


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