Why Probably Nothing Will Happen Over The Blood Smearing

Most Australians must look on in horror and wonder how one senator can smear blood on the door of another senator’s office without repercussions.

Yes, in between the rest of the chaos this week in federal parliament that actually happened.

If anyone of us did such a thing in a workplace environment we would be out on our ear. Instantly dismissed. The major parties might not agree on much when it comes to industrial relations laws, but both surely agree that such conduct is unacceptable.

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The incident referred to involved former One Nation Senator Brian Burston, who now represents the United Australia Party, and One Nation leader Pauline Hanson. Burston and Hanson’s chief of staff James Ashby got into a scuffle, after which Burston admitted to smearing blood on Hanson’s office door. Ashby as a staffer has had his parliamentary pass confiscated, but Burston as an elected senator has faced no sanctions whatsoever.

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Not in Canberra. Not inside the bubble of Parliament House. Why is that? The answer is complicated by Constitutional principles, parliamentary practice and the nature of the work elected representatives do.

In short, Burston isn’t employed by the parliament or the officials who run the place. So someone like the President of the Senate, Liberal senator Scott Ryan, has no power to reprimand Senator Burston. He faced the same dilemma a few months back when there were calls for Senator David Leyonhjelm to be reprimanded for comments he made about Greens senator Sarah Hanson-Young.

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Elected representatives are essentially employed by the Australian people, and those voters have their say at election time on whether or not to renew their contract to serve in the national parliament. Between elections elected representatives are largely a law unto themselves.

Senator Brian Burston (R) admitted to smearing blood on Pauline Hanson's door -- but repercussions seem unlikely. (Image: AAP)

READ MORE: James Ashby Banned From Parliament, Burston Admits Smearing Blood On Door

The Senate President did make the point that ACT laws apply equally at Parliament House as they do elsewhere in the territory. So if MPs and Senators breach the laws of the land, criminal or civil, they can be charged and possibly convicted for doing so. But that is a higher bar than would be the case in a workplace when it comes to misconduct.

Constitutionally it is questionable whether elected MPs and Senators can be removed from parliament for any reason short of a custodial sentence (the rules for which are spelled out in the Constitution).

The Parliamentary Privileges Act (1988) details some of the guidelines surrounding actions, and Odgers’ Australian Senate Practice (a publication updated every few years) provides details as to the rules and interpretations of how senators should conduct themselves. It’s a weighty tome.

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In essence, an elected MP and Senator can’t be banned from parliament and can’t be kicked out for actions which would in everyday life cost the rest of us our jobs. They can, however, be suspended, albeit briefly, for poor conduct by a majority vote in the chamber. But even that suspension risks becoming unconstitutional were it to be extended for too long. It would certainly be tested in the High Court. So far there is no precedent.

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At the end of the day, the only way the Hanson / Burston feud is likely to be resolved is at the next election. There are only two senate sitting days left between now and the May election, and Burston is unlikely to be returned when his term expires. Hanson won’t face voters until the election after next.

It’s one rule for MPs and another set of rules for the rest of us when it comes to appropriate conduct. And they wonder why voters hold them in such low regard.