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Legislative Council - Fifty-First Parliament, Second Session (51-2)
2008-02-27 Daily Xml
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CONSTITUTION (CASUAL VACANCIES) AMENDMENT BILL

Introduction and First Reading

The Hon. SANDRA KANCK (16:25): Obtained leave and introduced a bill for an act to amend the Constitution Act 1934. Read a first time.

Second Reading

The Hon. SANDRA KANCK (16:27): I move:

That this bill be now read a second time.

Australians, in their electoral choices, are becoming increasingly fascinated with candidates who badge themselves as Independents, and in South Australia we are no exception. We have seen, for instance, in the lower house the return of the member Fisher on a number of occasions. At the last election, the Mitchell electorate elected an Independent, and in this chamber we have two Independents.

The problem with this is that, for the most part, the Constitution Act and also the Electoral Act envisaged that candidates would belong to political parties. We saw last year in this place the difficulty arising from that when Nick Xenophon resigned his Legislative Council position.

Because the Independent No Pokies grouping on the ballot paper for the 2006 state election was not a registered political party, there was no procedure in place to advise the parliament what action it should take. The Constitution Act 1934, in section 13(5), provides:

Where a casual vacancy in the membership of the Legislative Council is to be occupied by a person chosen by an assembly of members of both houses of parliament, and the member, whose seat is vacant, was at the time of his or her election publicly recognised by a particular political party as being an endorsed candidate of that party and publicly represented himself or herself to be such a candidate, the person chosen by the assembly to occupy that vacancy shall, unless there is no member of that party available to be chosen, be a member of that party nominated by that party to occupy the vacancy.

So, although the act clearly refers to a political party and Mr Xenophon had made it clear at all times that the Independent No Pokies grouping was not a political party, the matter was 'resolved' by Mr Xenophon advising the Premier that he believed the No. 3 position of that group at the 2006 state election (John Darley) should fill that vacancy, and the Premier duly nominated John Darley in the subsequent joint sitting. This is certainly not how the act envisages the process, and the Premier, in a ministerial statement to the parliament, said that his legal advice was that the matter was justiciable.

The odds now are that both the Hon. Ann Bressington (who was elected on the No Pokies ticket in 2006) and the Hon. John Darley (who replaced Nick Xenophon in 2007) will live happy and fulfilling lives and contribute to this parliament and the electorate until March 2010.

The Hon. A. Bressington: Fulfilling.

The Hon. SANDRA KANCK: Yes; fulfilling. However, the replacement of Nick Xenophon with John Darley has exhausted any further possibilities of replacement and, if either the Hon. Ann Bressington or the Hon. John Darley is unable to complete their term, there is no-one who could feasibly fill the position. It is therefore sensible that a solution be in place so that in that unlikely event we will have somebody, and that is the purpose of this bill.

There is also a highly improbable but still faintly possible scenario—a sort of perfect political storm—that could see casual vacancies emerge for Nick Xenophon at the Senate level and for Ann Bressington at the state level, which would cause a constitutional crisis at state and federal levels. This bill adds a new subsection (6) to follow subsection (5), which I quoted a short time ago. So, in the event of a casual vacancy to fill a position that has been held by an Independent it would require the Electoral Commissioner to advise via the Government Gazette which of any continuing candidates in that election, after the eleventh member had been chosen, had the highest number of votes. If that candidate had stood for a registered political party, that party would be called upon to nominate a replacement. It is possibly quite an easy task with this in place for the Electoral Commissioner at the time of the count at a general election to advise this information as a matter of course.

The bill does not deal with the federal part of that perfect storm scenario, as we as state MPs cannot pass legislation requiring action of the Australian Electoral Commission. However, sound risk management requires that we make sure that important systems and institutions are designed to cope with potential damage, even if the risks are not highly likely. It is most likely that there will never be a need to resort to this provision, but it is nevertheless a sensible decision to have something like this in place just in case.

Debate adjourned on motion of Hon. I.K. Hunter.

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