Bernard Finnigan, MLC who obtained child porn, can remain in SA Parliament until convicted, lawyers say

A politician found guilty of obtaining access to child pornography cannot be removed from Parliament until he is convicted and sentenced, his lawyers say, despite the South Australian Premier’s plan to remove him next week.

MLC Benard Finnigan was yesterday found guilty by the District Court of obtaining access to child pornography but the judge is yet to rule whether a conviction will be recorded.

He had been arrested at his Sefton Park home in April 2011 and charged with accessing child pornography between December 2010 and April 2011.

Mr Weatherill said Parliament would move to expel Finnigan on Tuesday.

But in a letter to Legislative Council president Russell Wortley, Finnigan’s lawyers said his seat could not be vacated until 28 days after his conviction and sentencing, which is not due until November 30.

“The practical effect of section 17, when read in conjunction with the Rule and practices of the District Court, is that Mr Finnigan’s seat cannot be declared vacant until 28 days after conviction and sentence (which, as we say, has not yet occurred) and, in any event, pending the outcome of any appeal (as to which Mr Finnigan will take Senior Counsel’s advice).”

“It’s utterly inconsistent with that Member of Parliament continuing … and I call on him to immediately resign,” he said.

“With the finding of guilt it is utterly beyond doubt — it is impossible for him to continue to serve as a Member of Parliament.”

Mr Weatherill also said that the Government would take steps toRECOVER “every cent” Finnigan has earned since his arrest.

“We now have finding of guilt and the idea someone drawing a salary doesn’t sit well with the public and we’re duty bound to retrieveFUNDS,” he said.

In their letter, Finnigan’s lawyers warned against trying to replace him ahead of court proceedings.

“As you will doubtless appreciate, were any other position to pertain, there is a risk that a causal vacancy filled in accordance with section 13 of the Constitution Act 1834 (SA) would be set aside upon any conviction being quashed.”

Mr Weatherill said the Government wanted Finnigan gone by next week at the latest.

“The Legislative Council, I’m advised, has the power to act and we intend to ask it move to do so,” he said.

“If he chooses not to [resign] then I have instructed the solicitor-general to prepare advices and motions to permit the Legislative Council toDEAL with this matter on Tuesday as the first order of business.”

University of Adelaide constitutional law expert Matthew Stubbs said he believed plans to vote Finnigan out of Parliament could hold up and he does not think the MP’s lawyers could try to overturn them.

“I don’t think that the court would entertain anAPPLICATION challenging parliament,” he said.

“In my view, Parliament has always had the power under constitution to control its own processes.”

Source: http://www.abc.net.au/news/2015-11-11/bernard-finnigan-lawyer-responds-to-sa-parliament-verdict/6930936