Why is it harder for politicians to get sacked when they commit a crime?

For many Australians, committing a crime outside of work could result in you losing your job, but there’s a different set of rules and processes for the country’s politicians.

Last week, South Australian MP Troy Bell joined the long list of Australian politicians found guilty of a crime while in office.

A District Court heard he failed to return more than $400,000 to a not-for-profit organisation to pay for his credit card debts, offset his mortgage and for property investments.

The 51-year-old former teacher was found guilty of 20 counts of theft and five counts of dishonest dealing with documents — verdicts he says he will appeal. 

But for most Australians who commit a crime — even if it’s outside of work — it could result in immediate termination of employment.

It’s a bit more complicated for MPs and depends on what political party they are a member of, what crime they committed and how serious the crime was.

What happens to your job if you commit a crime? 

University of Adelaide employment and contract law academic, Gabrielle Golding, told the ABC that case law has established the grounds for an employee’s dismissal.

Dr Golding said a Fair Work Commission (FWC) case in 1998 called Rose v. Telstra established three grounds for an employee’s dismissal in Australia:

1. That an employee’s conduct likely damaged the relationship between the employer and employee;
2. The employee’s conduct damaged the employer’s interests, or;
3. The employee’s conduct was incompatible with an employer.

That means if an employee breaks their employer’s code of conduct, including outside of work, it could be grounds for dismissal, Dr Golding said.

“It’s not like you have a case of three strikes and you’re out. It might be so severe that it creates grounds for summary dismissal, so that being dismissed straight away without any notice.”

Dr Golding said Rose v. Telstra was tested in New South Wales in 2023 when a Sydney Trains employee was dismissed after his employer found out he had been charged with criminal offences.

She said the FWC found the dismissal was lawful because the employee broke the company’s code of conduct.

“Viewed objectively, this kind of behaviour is actually likely to seriously damage the relationship between the employee and employer.”

What are the rules for MPs who are accused?

There are some rules politicians can’t break to continue sitting in parliament. These rules are outlined in each state or territory’s constitution.

The Australian Constitution says an MP can be disqualified from federal parliament if they have an allegiance to a foreign power, has committed treason or is bankrupt, among other conditions.

But if a politician is accused of a crime, Dr Golding said it’s up to the MP’s political party to decide whether they should keep their party membership, until a court decides an outcome.

“It might be that you lose your membership in the party but that then doesn’t stop you from running as an independent,” she said.

Flinders University Associate Professor of politics Rob Manwaring agreed.

He pointed to SA Labor’s action to cancel former MLC Bernard Finnigan’s membership after he was charged with child pornography offences.

“Quite quickly, the Labor party sought to ensure he was not a member of their party until the legal process took its course,” Dr Manwaring said. 

“There was one conviction there that stood up in which case he resigned kind of immediately.”

Dr Manwaring told the ABC that some Australian jurisdictions don’t have a code of conduct to deal with misconduct by MPs.

He said that’s in contrast to the United Kingdom where ministers in the former Conservative government were found to have breached the ministerial code of conduct.

“There can be political pressure to act or not act there and that can be problematic and definitely be seen as out of step with community or expectations,” he said.

Why aren’t MPs automatically sacked after being found guilty? 

University of Queensland Professor of Law Graeme Orr told the ABC that in some jurisdictions, like South Australia, an MP has to be convicted of an indictable offence — a serious crime — to be kicked out of parliament.

However, Professor Orr said that vacancy doesn’t happen immediately because, like in Bell’s case, the conviction will be referred to the Court of Appeal which could find him innocent.

He said in 1999, a UK court found that an MP could return to their parliamentary seat if a conviction was quashed and there hadn’t been a by-election.

“A parliamentary seat can be vacant, but that doesn’t stop the MP coming back to resume their seat if the conviction is quashed on appeal and there hasn’t been a by-election in the meantime,” Professor Orr said. 

“The courts in England … have said that they’re entitled to await [for] an appeal and maybe it’s inappropriate to have a by-election to elect a new member until the appeal is finished.”

Professor Orr said some state parliaments also had the “ancient” power to expel an MP.

Dr Manwaring told the ABC that MPs are treated differently to regular employees because they are directly elected by the people, and are therefore accountable to their constituents.

“The system itself is designed that actually the ultimate accountability or the main accountability for MPs, are its constituents in that kind of area,” Dr Manwaring said.

“It’s seen as a democratic institution and the ultimate arbiter of the seat is the electors.”

Professor Orr agreed and said that MPs are not employees and their future is ultimately in the hands of their constituents.

“They hold an office and there are certain rules around that office in the constitution. The rest of it is a matter of political and media pressure.”