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House of Assembly - Fifty-Second Parliament, Second Session (52-2)
2012-10-18 Daily Xml
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CONSTITUTION (CASUAL VACANCIES) AMENDMENT BILL

Second Reading

Adjourned debate on second reading.

(Continued from 29 March 2012.)

Ms CHAPMAN (Bragg) (10:55): In March this year, the member for Fisher introduced the Constitution (Casual Vacancies) Amendment Bill. It proposes that casual vacancies in the House of Assembly be filled in a similar way to that followed in the Legislative Council. Similar bills were introduced on 28 March 2007 and 14 May 2009.

The one thing you can be absolutely about with the member for Fisher is that he never gives up. When he comes up with some brilliant ideas, the opposition is very happy to support them. With some of them, there is a little divide between what he sees as a wise choice and what the opposition does. In this instance, I can see where he is coming from and the opposition is sympathetic, of course, to any unnecessary costs, for example, of elections. However, there are some more important principles we feel are at risk in progressing down this line. That is not to say that he is ever persistent.

At present, when the House of Assembly has a casual vacancy and we lose one of our members by death or retirement, sometimes, of course, it is because they are unwell or have family responsibilities which appropriately require their attention and sometimes it is just because they feel the decision that has been made—usually an early departure post election—is not one they feel sympathetic with, and therefore they decide they are going to disappear off the horizon and look for greener pastures.

When the Legislative Council moved to electing members by proportional representation in 1973, the parliament adopted a practice based on the commonwealth parliamentary procedure to fill casual vacancies in the Senate; namely, the members of both houses in a joint sitting would meet together and vote to replace the member with someone nominated by that member party. Indeed, in 1984, at the time of the Bannon government, this convention was enshrined into the Constitution Act of 1934 in section 13.

We had, of course, an example of that just this week, when this house and the other place met in a joint sitting, where members were present to witness exactly this provision in practice. The Hon. Bob Sneath, a former member and, indeed, President of the Legislative Council, elected to retire. It seemed the fishing pastures of Millicent had attracted him away from this important—

Mr Pegler: Beachport.

Ms CHAPMAN: Beachport, was it? I think I heard that he had been to Millicent area school or something, but perhaps I misheard that.

Members interjecting:

Ms CHAPMAN: Millicent High School. In any event, we witnessed that process this week. Indeed, the Australian Labor Party nominated Mr Kyam Maher to replace him and, as a joint sitting of the parliament, we endorsed his election into the Legislative Council. The Governor signed off on that and he took his place yesterday at 2 o'clock as a member of the council. It is certainly a practice which has proved to be oft used. It may come up again according to what we sometimes read in the paper or if the Premier gets his way. We may need to have another joint sitting shortly to replace one of the members there. However, it is a practice that appears to have been efficiently undertaken, and it provides an opportunity to be able to cover these contingencies.

Proposed section 37A in this bill—similar to the provisions, as I say, in the Legislative Council and its process—would enable that to occur for House of Assembly members. If, however, the retiring member was not aligned at the time of the election and had not nominated a person whom he or she wished to occupy the vacancy, a by-election would then proceed. Presumably, a by-election would still be needed if the party that endorsed a candidate no longer existed or had declined to nominate a member or the retiring non-aligned member had declined to nominate a replacement.

I cannot think of where this has happened in South Australia. Plenty of people who have been members of a political party have then moved to the Independent benches. We had, of course, the member for Mitchell at one stage who then joined another party momentarily. I can think of one recently in the Northern Territory: Allison Anderson, who was a member of the Australian Labor Party, decided she would become an Independent and, at the election before last, she became a candidate for the CLP, was successfully re-elected and is now a minister in the new government in the Northern Territory. These things happen; people have a change of allegiance. In that situation, she saw the light and came across to a good party.

We think filling casual vacancies with party nominees is more relevant to the Legislative Council, where overwhelmingly members are elected as members in groups of candidates. However, while most successful House of Assembly candidates have party affiliations, all candidates appear on the ballot paper as individuals and it is arguable that, in seats with small margins, some members are only elected as a result of a personal vote. Furthermore, Legislative Council Independents generally have other candidates on their group ticket when contesting the election that could fill the vacancy (e.g. the Hon. John Darley). The bill before us, however, would see a party or candidate that had not won the confidence of an electorate in its own right being able to claim that seat following a casual vacancy.

Members would be aware that the Constitution Act does not define 'political party', however, it implies some formality in referring to a member having been an endorsed candidate of a political party. What would have happened, for example, if indeed the member for Croydon had lost his seat at the last election and the Gamers for Croydon candidate had won? It is now, of course, a political party which has disappeared, deregistered or not pursued its position. What would have happened if the newly elected Gamers for Croydon candidate in Croydon had bitten the dust, walked over Port Road at an inopportune time, or whatever, and had lost?

The Hon. R.B. Such: Took a gamble.

Ms CHAPMAN: Took a gamble, as the member for Fisher helpfully interjects. What would have happened if his demise meant that there would be a need for a replacement? I am sure the current member for Croydon would have rushed at the opportunity to demand that he be able to be the member again and demand a by-election. He would not be rushing to say, 'Who else was No. 2 on the Gamers for Croydon ticket?' He certainly would not be rushing to say, 'You should keep that party going; I'm happy to become a member.' In any event, he would be shouting from the rooftops at the opportunity—biting at the bit—to get back there and push through his Barton Terrace bill and some other trivial things that he has moved his attention to these days.

I make the point on behalf of the opposition that, if persons change their allegiance once elected but then vacate the seat, the party that person originally aligned with would have the right to fill the vacancy, and party alignment is determined at the time of the election rather than at retirement.

The objective of increasing political stability and reducing the risk of a government's majority being eroded through by-elections are issues to be taken into account, but the opportunity for the community to pass judgement during a term, often without government being in question, must be a serious consideration. We need to remember that the reason we are here is that we have had the confidence committed to a vote at an election by our electorates. We need to work hard to maintain that level of support and respect, and this process, regrettably, is not one of the member for Fisher's otherwise very good list of ideas in this chamber that would enjoy our support.

Mr PEGLER (Mount Gambier) (11:05): I indicate that I will be voting against this motion. I believe that this is the people's house, that it is the people who decide who come into the house, and that we are here to represent our electorates. As far as I am concerned, it should be the people of those electorates who decide who comes into this place, so I will be voting against this motion.

The Hon. R.B. SUCH (Fisher) (11:05): I certainly respect the views of everyone in here. I think it is important that we discuss some of these issues in here from time to time, and a fundamental question is: how do people get elected to this place? I have heard the various opinions and I can judge the political wind, so I think that if a measure has been canvassed and it is not going to get support then we should deal with it and get it off the Notice Paper.

I was not chastened by the member for Frome, but he reminded me that if this provision were in place he would not be here. I extend my deep apologies to the member for Frome: there was nothing personal in this and, in fact, it is not retrospective, so he would still be here. It is not simply about money, although by-elections do cost money but, at the end of the day, we spend a lot of money on a lot of other things for no outcome, so asking people their view is never a waste of money.

I know what is going to happen to this, and I conclude by thanking members for their various views. I think it enlightens us all about our role in this place, how we get here, and how others get here. I appreciate that the measure will go down, but I ask that it be put to the vote.

Second reading negatived.

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