John Banks' career as an MP may not end today despite him being guilty of transmitting a false electoral return, a senior academic says.
Dean Knight, senior lecturer at Victoria University, said the courts might be reluctant to take "irretrievable steps" if the ACT MP launches an appeal.
A High Court judge in Auckland today found the Epsom MP and former Auckland mayor guilty of "transmitting a return of electoral expenses knowing that it was false in a material particular".
The charge related to three entries in the electoral returns for Banks' failed 2010 Auckland super city mayoral campaign. Banks was accused of knowing that a $15,000 donation came from SkyCity and two of $25,000 came from German entrepreneur Kim Dotcom. The donations were recorded as anonymous on a signed declaration.
Because the charges carry a maximum sentence of more than two years in prison, Banks faces being removed from Parliament after Justice Edwin Wylie found him guilty.
Under the Electoral Act, the vacancy is triggered upon conviction, and is irrespective of whether Banks chooses to appeal, although the Registrar of the court has 48 hours to notify the Speaker of the court's decision.
However, Knight said that while the disqualification provision "looks on its face to be automatic and immediate" it could not be ruled out that Banks would be able to continue as an MP.
Knight said a conviction might be deferred by not entering the conviction pending appeal or discharging Banks without conviction.
"I'm not an expert on criminal procedure but I suspect that, if there is a genuine appeal, the courts will wish to ensure that right is not compromised," Knight said.
The right to appeal a criminal conviction was protected under the Bill of Rights.
Although Speaker David Carter said yesterday that he had not sought advice on the matter, Knight believed it was up to Parliament "to resolve the consequence of conviction if an appeal is pending, where a conviction has been entered and communicated to it".
Knight cited the case of a British MP who was disqualified from Parliament because of a conviction, but later successfully appealed and was subsequently reinstated to Parliament. The court ruled that where the conviction was set aside on appeal, all penalties imposed at the time of the conviction should also be set aside.
While the language was different here and the courts might be reluctant to be seen to be interfering with the internal proceedings of Parliament, it did raise questions of fairness, Knight said.
"The upshot is that we can't be sure that he'll automatically be ousted from Parliament, if he launches an appeal," Knight said.
"There are arguments either way on the question.
"I think those responsible for resolving these questions [the courts and Parliament] will be reluctant to see irretrievable steps be taken and appeal rights be effectively nullified, if there is a genuine prospect an appeal might overturn the conviction."
While there are relatively recent cases of MPs being charged with crimes that would have been severe enough to have them removed from Parliament, such as Act MP Donna Awatere Huata and Labour MP Taito Phillip Field, both had left Parliament by the time they were convicted.
Usually if an MP's seat was declared vacant, it would trigger a by-election, but because it is less than six months from the general election, Parliament can resolve to simply leave the seat vacant.
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