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House of Assembly - Fifty-First Parliament, Second Session (51-2)
2007-11-13 Daily Xml
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Ministerial Statement

LEGISLATIVE COUNCIL VACANCY

The Hon. M.D. RANN (Ramsay—Premier, Minister for Economic Development, Minister for Social Inclusion, Minister for the Arts, Minister for Sustainability and Climate Change) (14:02): I seek leave to make a ministerial statement on a most pressing and controversial issue.

Leave granted.

The Hon. M.D. RANN: The government intends to recommend to His Excellency the Governor in Executive Council that a proclamation be issued for a joint sitting of the House of Assembly and the Legislative Council on Wednesday 21 November at 9.30am. to fill the casual vacancy in the Legislative Council caused by the resignation of Mr Nick Xenophon.

As I have previously informed the house, the government will act in accordance with its legal advice in relation to the filling of the vacancy. In a detailed statement to the house, I set out the requirements that must be met before the provisions of section 15(4) of the Constitution Act could operate to allow the appointment of a person nominated by the No Pokies Campaign. In essence, the constitution requires that the No Pokies Campaign must establish, amongst other things, that it is a political party (though not necessarily registered under the Electoral Act), that it endorsed Mr Xenophon as a candidate for the 2006 election, that it publicly recognised that endorsement, and that Mr Xenophon represented himself as an endorsed candidate of the No Pokies Campaign.

I wrote to Mr Xenophon on 24 October 2007 and invited him to place any material before me relevant to those issues to enable me to obtain further advice and give the matter full consideration. On 1 November 2007, Mr Xenophon responded in his private capacity. Mr Xenophon finally conceded that the provisions of the Constitution Act that allow for the filling of casual vacancies in cases of party appointment do not apply.

In those circumstances, I am advised that the parliament (that is, the joint sitting) has an unfettered discretion as to whom it elects to fill this vacancy. Some, including Mr Xenophon, have urged the government to follow convention. In support of that contention, they seek to rely on the words of former premier the late the Hon. Don Dunstan AC QC when he spoke at a joint sitting in 1977. The opposition leader too has relied on Don Dunstan's words. Both the leader and Mr Xenophon overlook the fact that the 1977 joint sitting was convened to fill a Senate vacancy, not a Legislative Council vacancy. In any event—

Ms Chapman: It's the same constitution.

The Hon. M.D. RANN: The deputy leader who perhaps claims to have legal experience said that it is the same constitution. In any event, the provisions of the current South Australian constitution were enacted in 1985, well after Don Dunstan had left the parliament and long after he addressed that joint sitting. They could not get the right law, let alone the right constitution. It is unbelievable that people who want to hold high office do not know that we have a different constitution and a different law.

The fundamental point about conventions is that they are established by long accepted custom and practice that is widely recognised and followed. It would be very unusual to rely on one or even two instances as a convention. The fact is that the events of 1977 surrounding the Senate vacancy and the appointment of a replacement are so far removed from the current circumstances that they do not assist in establishing a convention or a binding precedent.

The selection of a person to fill the 1977 Senate vacancy created by the resignation of former Liberal Movement senator Steele Hall turned on the question of which party had the moral right, if not the constitutional right, to claim the vacancy. The changes to the Commonwealth Constitution did not deal with the situation where a retiring or deceased senator had been a member of a political party at the time of his election and where that party had become defunct at the time that vacancy occurred.

On the one hand, the Australian Democrats, which had evolved from the Liberal Movement, claimed that vacancy as theirs. On the other hand, the Liberal Party claimed the vacancy. That is the convention that you are asking me to follow and one which your party opposed at the time. But not only did you get the wrong legislation, the wrong law, the wrong constitution, but you have also changed your position. It is a matter of historical record that the late Janine Haines was appointed. It was a question fairly and squarely about party structures and affiliation.

In the present case involving Mr Xenophon, it is clearly not about party. Mr Xenophon and Mr Darley were both independent candidates. Mr Xenophon in his letter to me confirms he was not endorsed by a political party. To my knowledge, there is no convention relating to the—

Mr Hanna: We all knew that.

The Hon. M.D. RANN: We have someone else who wants to talk about the vibe of the constitution. To my knowledge—

Members interjecting:

The Hon. M.D. RANN: Yes, he knows a lot about parties—he has been a member of a number of them. To my knowledge, there is no convention relating to the filling of Legislative Council vacancies—

Members interjecting:

The SPEAKER: Order!

The Hon. M.D. RANN: To my knowledge, there is no convention relating to the filling of Legislative Council vacancies caused by the death or premature resignation of an Independent legislative councillor. Let's get that point perfectly clear: to my knowledge, there is no convention relating to the filling of Legislative Council vacancies caused by the death or premature resignation of an Independent legislative councillor. No person, party or other organisation has been able to point to or establish the existence of a convention in these circumstances. The parliament is therefore navigating uncharted waters. While there is no convention—

Members interjecting:

The Hon. M.D. RANN: Oh, they're making nominations from the floor. While there is no convention, commonsense would support the proposition of replacing an Independent with another Independent. In a very real sense, it reflects the choice made by the electorate to the extent that it supported an independent No Pokies ticket above that of the major parties or indeed the Australian Democrats.

I have previously advised the house that it is my expectation that Mr John Darley will be nominated to replace Mr Xenophon. I have seen or read nothing which alters my view about that. Therefore, with the support of my government, I intend to nominate Mr John Darley at the joint sitting to fill the vacancy caused by Mr Xenophon's resignation. Mr Darley has confirmed his willingness to accept the appointment, and I have spoken to him within the last hour.

I hasten to add that I do not expect future joint sittings—or indeed future generations of members of parliament—to rely on this support and, indeed, these noble words as a precedent or establishing a convention. The circumstances of this situation are unique and too unusual to be considered as a precedent. I urge members to do the right thing, the decent thing, and support the nomination of Mr Darley; although, I have to inform the house that all members are free to nominate other persons as there is neither convention nor precedent.

The Hon. R.B. Such interjecting:

The Hon. M.D. RANN: No; the members of the Labor Party will be supporting Mr Darley, but, of course, you change your party like other people change their pyjamas. I should advise that, if there is more than one nomination and a ballot is required, a secret ballot will be conducted.

Members interjecting:

The SPEAKER: Order!

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