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House of Assembly - Fifty-Fifth Parliament, First Session (55-1)
2022-05-03 Daily Xml
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Members

Member for Bragg, Speaker's Statement

The SPEAKER (16:12): There being no further statements, I wish to make a statement of my own before calling questions without notice. On 26 April 2022, I received a letter from the member for Bragg in relation to her resignation from the House of Assembly. As members will be aware, section 30 of the Constitution Act 1934 (SA) provides:

Any member of the House of Assembly may resign his or her seat in the House by writing under his or her hand, addressed to the Speaker of the House, and delivered to the Speaker forthwith after the signing thereof, and upon the receipt of such resignation by the Speaker, the seat of the member shall become vacant.

The Clerk advised me that the letter might well raise a constitutional question as to the effective date of the member's resignation. I immediately sought Crown law advice. That advice, dated Friday 29 April 2022, provides in part:

The words of [section] 30 leave little room for doubt; the seat becomes vacant as soon as the Speaker receives the resignation letter. Section 30 does not allow for the member to propose a date in the future at which the resignation will take effect.

As well, the advice provides, in part:

An argument could possibly made on the basis of the language used in the letter that it constitutes merely a notice of an intention to resign at a later date. The alternative to this is that the proper construction of the letter is that the 'notice' to which Ms Chapman refers is simply of the purported effective date of her resignation.

While finely balanced, I think this alternative construction is to be preferred.

I do not consider that either of the above factors, namely the identity of the Speaker and the wording of the letter, alters my conclusion that Ms Chapman's seat was likely vacated on 26 April by the operation of [section] 30 of the Constitution Act.

The advice ends, in part:

I hope this advice is of assistance.

It certainly caused difficulties for me.

Acting on this advice, I wrote to Ms Chapman the next day, Saturday 30 April 2022, and provided a copy of my letter to members of the house, as members were not at that time sitting. I telephoned Ms Chapman and also received an email from her. On Monday 2 May 2022, I received correspondence from a solicitor acting for a client named as Ms Vickie Chapman. I then instructed the Clerk to obtain further advice in relation to the matters Ms Chapman's solicitor had raised. Yesterday evening, I received further Crown law advice. That advice provides in part:

While it would be open to you to issue a writ for the by-election if the matter were not in dispute—and if nothing needed to be determined by the house—that is clearly not the case here.

That being so, I recommend that you table the correspondence between you and Ms Chapman and her lawyers, asking the house to hear and determine the matter.

The timing of the tabling is of course a procedural matter for you to determine.

However, it would be prudent for the Chief Justice not to swear Ms Chapman in with the other members tomorrow while a question remains over her entitlement to take her place as a member of parliament.

You may therefore wish to table the correspondence as soon as the opportunity arises.

The house need not deal with the matter immediately but Ms Chapman should not sit as a member or vote on any matter before the house has determined the issue.

I recommend that you respond to Ms Chapman's lawyers to advise that this is the action you will take in light of their letter and that you will not issue a writ in the meantime.

For completeness, I draw the attention of the house to section 43 of the Constitution Act, which provides:

Whenever any question arises respecting any vacancy in either House of Parliament it shall be heard and determined by the house in which the vacancy occurred.

I also refer members to the course adopted in the matter of the member for the electoral district of Ridley. In those circumstances, the Deputy Speaker indicated it was the duty of the house to finally determine whether a vacancy existed. It cannot go unremarked that on 26 April 1939—there must be something about 26 April—the Full Court of the Supreme Court resolved the matter of Stott v Parker and reasoned that section 43 of the Constitution Act leaves the question of vacancy in the hands of the house.

I lay on the table relevant correspondence and advice earlier mentioned.

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