In recent weeks, many people have asked why the NSW Constitution allows a convicted Member of Parliament to stay in office while they appeal their case. The short answer is: because of a law change in the year 2000.
And here’s the story behind it.
The change was triggered by the case of Phillip Smiles, a former NSW Liberal MP and Assistant Treasurer who was convicted of tax evasion in the 1990s. Smiles resigned from Parliament after being found guilty of falsely claiming his nanny as a tax deduction. But on appeal, his conviction was overturned.
By the time that happened, his political career was over. His seat had been vacated. A by-election had been held. And he had lost his pension and entitlements.
That outcome caused a major stir. It felt unfair, both to Smiles, who had been legally cleared, and to his electorate, which had lost its elected representative over a conviction that didn’t stick.
The Independent Commission Against Corruption (ICAC) looked into the case and found no evidence of corruption, but did highlight a serious problem: the law wasn’t clear on what exactly “conviction” meant under section 13A of the Constitution Act. Was it the jury verdict? Was it after sentencing? Or did it only count once all appeals were exhausted?
ICAC and a Parliamentary Committee both recommended change. They called for a clearer, more precise definition that would protect MPs and voters from being punished for convictions that might not stand.
So in 2000, the NSW Government amended the Constitution. The change meant that a conviction would only count, for the purpose of disqualifying an MP, once the appeals process had concluded. This would stop someone from being wrongly removed if their conviction was later overturned.
It was, at the time, seen as a fix. A safeguard against what happened to Phillip Smiles.
But now we are seeing the downside.
Because of that 2000 amendment, a person found guilty of serious criminal offences, remanded in custody, and serving time in jail, can still hold office, draw a salary, and access entitlements, all while appealing their case.
It’s a loophole that was meant to protect fairness. But now, it’s protecting power.
And that’s why so many of us are calling for reform again. It’s time to respect the original intent of the law, to preserve justice, while ensuring Parliament isn’t held hostage by someone who has been convicted of serious crimes and remanded in custody.
The law was changed for good reasons. But the unintended consequences now demand action.
Further Reading
You can download and review the official “Constitution Amendment Bill 2000 — Explanatory Note” for the Constitution Amendment Bill 2000, which clearly outlines the reasons for the change and how it redefined “conviction” in the Constitution
Why Gareth Ward’s challenge to the power to expel him from the NSW parliament failed
#NSWPolitics #ConstitutionReform #PhillipSmilesCase #Section13A #PublicAccountability #DemocracyMatters #AppealLoophole #IntegrityInOffice #DisqualificationDelay