The political furore enveloping Craig Thomson has led to speculation that his disqualification from Parliament will bring down the Gillard government. However, it is unlikely that he will be disqualified. The damaging public debate will no doubt work to the political advantage of the opposition, but the law is unlikely to produce the outcome they desire.
The attempt to have Thomson removed from Parliament rests on section 44 of the constitution. It sets out five grounds for disqualification from Parliament of those who are not fit for office or have a conflict of interest.
A person cannot sit in the Federal Parliament if they: (1) have an ''allegiance, obedience, or adherence to a foreign power'', such as by being a citizen of another nation; (2) are ''attainted of treason'' or convicted of any offence punishable by imprisonment for one year or more; (3) are ''an undischarged bankrupt or insolvent''; (4) hold an ''office of profit under the Crown'', such as a public servant; or (5) have a financial interest in certain contracts with the Commonwealth.
It has been reported that Thomson may have avoided bankruptcy under ground 3 by having legal costs from his defamation action against Fairfax paid by the Labor Party. The Coalition is also hoping to build a case against him on ground 1. Liberal Senator Concetta Fierravanti-Wells stated in Parliament last Thursday that Thomson ''needs to answer … whether he has properly renounced his New Zealand citizenship''. It is unclear whether this is merely a fishing expedition or another possible line of attack.
The present focus is on whether Thomson will be disqualified on ground 2. This would occur if he is convicted of an offence punishable by at least a year's jail due to alleged misuse of a corporate credit card when national secretary of the Health Services Union. The fact that the union is co-operating with police makes a prosecution more viable. Without this, it is hard to see how the police could mount an effective investigation.
Even with this co-operation, it is not yet clear that Thomson can be charged with an offence. Material in the public domain, such as that detailed by the shadow attorney-general, George Brandis, in Parliament on August 17, is likely to fall short of what is required to launch a prosecution.
Brandis's strongest argument is that Thomson may have committed fraud. The offence is contained in the NSW Crimes Act, with a maximum penalty of 10 years in jail. The difficulty lies in showing that Thomson has satisfied the elements of the offence. A person does not commit fraud merely by placing unauthorised private expenses on a work credit card. It also needs to be shown beyond reasonable doubt that they obtained a financial advantage by engaging in deception and dishonest behaviour.
Thomson may have breached the rules of his union in a way that raises questions about his character and judgment, but it is a big jump to prove he has committed a fraud. A prosecution would depend upon whether a forensic examination of the case by the NSW fraud squad discerns any additional evidence, or whether the material gives rise to a different charge.
If Thomson is charged, the legal process would be lengthy. A trial might not begin until the first half of next year and, even if convicted, he might not immediately be disqualified. It is arguable that section 44 does not disqualify a person until they have exhausted all normal avenues of appeal. Hence, if Thomson were found guilty the saga might continue through one or more appeals and even a High Court case on the operation of section 44.
The most likely result is that charges will not be brought against Thomson. Unless a further ground of disqualification emerges, this will end the legal arguments for his removal from Parliament, and the prospect that this will bring down the Gillard government.
This outcome will not alleviate the political damage suffered by the government. Even if the law does not require Thomson's removal, the Coalition will no doubt continue to argue that he is not a fit person to be a member of parliament, and that the government's dependence on his vote undermines its right to stay in power.
George Williams is the Anthony Mason Professor of law at the University of New South Wales.