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Legislative Council - Fifty-First Parliament, Second Session (51-2)
2008-07-29 Daily Xml
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CONSTITUTION (CASUAL VACANCIES) AMENDMENT BILL

Second Reading

Adjourned debate on second reading.

(Continued from 27 February 2008. Page 1847.)

The Hon. R.D. LAWSON (00:27): This bill, introduced by the Hon. Sandra Kanck, seeks to amend section 13 of the state Constitution by inserting a requirement that, where a person who was not elected as the member of a political party resigns or otherwise vacates their position in the council, the casual vacancy shall be determined by what might loosely be termed 'a count back'.

I indicate that the Liberal Party will not be supporting this bill. Ordinarily, we would support the second reading of a bill of this kind to go into the committee stage for further debate. However, given the time, we do not propose to adopt that course on this occasion.

We do, however, consider that parliament should consider the question of the replacement of Independent members who die or resign from the Legislative Council during their term, but we do not support the count back or recount method proposed in the bill; nor, I might I add for completeness, do we support the scheme foreshadowed in the Hon. Ann Bressington's amendment, namely, that a departing member has the right to nominate his or her successor.

I should record that I am not aware of any system where the model proposed by the Hon. Ann Bressington has been employed. However, the count back method proposed by the Hon. Sandra Kanck is followed in some jurisdictions, in particular in the upper house in Western Australia, in the lower house in Tasmania and in the Legislative Assembly in the Australian Capital Territory.

However, the situation in South Australia, Victoria and New South Wales is that state parliament makes the selection. In relation to the Senate, a joint sitting of the state parliament (from where the senator came) makes the selection. In all cases where the departing member was elected as a member of a political party, there is a statutory requirement now that the replacement be a member of the same political party. I am there speaking of the systems in South Australia, New South Wales, Victoria and the Senate.

However, the statutes do not cover the case where the departing member is not a member of a political party or group. In that case there is a precedent and a convention which has been followed since well before those statutory requirements were inserted. That principle and precedent was described by premier Don Dunstan in 1977 in the following terms:

In all circumstances the nearest we can possibly come is to nominate a person who represents the body of opinion that was given expression to by the votes of the electors at the time of the original election.

That is the same principle which has been followed federally. It happened in the state of South Australia in the case of the death of Senator Hannaford in 1967. He had been elected as a Liberal member but was not a member of the Liberal Party at the time of his death. However, the Assembly of Members here selected a member of the Liberal Party; that being the convention that was well accepted.

However, there may undoubtedly be some difficulty in determining who represents the body of opinion that was given expression to by the votes of the electors at the time of an election in respect of a person who is not a member of a political party or endorsed by some political team. It is for that reason that we believe that in the next parliament this issue should be revisited by a parliamentary committee, perhaps a joint committee or even by one of the standing committees. We are not rejecting out of hand the consideration of this important issue, but we do not support the bill.

The Hon. A. BRESSINGTON (00:33): It will come as no surprise that I am highly supportive of the need for independence in the political arena. Issues raised by those who do not have a party line to toe serve to better inform the people whom we serve regarding legislation that is debated and any amendments proposed.

One recent example of this was the WorkCover debate which, I believe, would have slipped through this place and the other place in record time without the public even being made aware of the fact, if not for members in this place and the other who, obviously, are not beholden to the business community in this state.

I point out that section 47 of the Sexual Offences Act would also not have been scrutinised if, as an independent, I did not raise the issues that existed in that flawed piece of legislation. The points raised in that debate, despite the misinformation put out by the South Australian media—where I have since been described as an idiot for suggesting sex contracts–have been backed up and confirmed by Janet Albrechtsen, a lawyer in New South Wales, and also a writer for The Australian newspaper.

Despite every attempt by the media in this state to make my comments about sex contracts appear to be ludicrous (when, in fact, it was said as a joke), it backfired when, in 24 hours, the story went international and there was ample opportunity to explain my comments to hundreds of thousands of people about the spirit in which they were intended. It was also a lesson for many that you take the media reporting in this state seriously at your own peril, which probably indicates a need for more independence in the media as well. It was also interesting that after that debate was raised a poll was run on Adelaidenow and, as I said, I think about 60 per cent to 65 per cent of people agreed with the comments that I made.

I believe the South Australian parliament, particularly the Legislative Council (the house of review), needs Independents and the autonomy they bring to ensure that both major parties are held somewhat to account without the restrictions imposed by party structures. This is especially true when speaking out on controversial matters. Therefore, I encourage anyone who is considering to run as an Independent, particularly in the Legislative Council, to do so.

However, the bill before us does not empower Independents with the rights and privileges afforded to major parties but eventually to reduce the number of Independents in the chamber. It is proposed that, if an Independent vacates their seat, their position is not to be filled by another Independent of the former member's choosing but by a nominee of the party whose candidate received the 12th highest vote at the previous election. This demonstrates contempt for the intent of the voting public and seeks to further disenfranchise Independents and those who voted for them.

In the scenario which we saw unfold in this place late last year with the Hon. Nick Xenophon's resignation of his position to run for the Senate, this bill would not have his position filled by another Independent who ran on his ticket but rather by a party which may not have achieved a quota at the previous election. Even though the right of choosing a replacement would have been afforded to the honourable member's own party, the mover of the bill, and any other had she created a casual vacancy, the Hon. Sandra Kanck makes the point that when the constitution was drafted it was not envisaged that Independents would win a seat in the Legislative Council.

However, instead of rectifying this oversight, this bill seeks to reverse the very principle which saw the Hon. Kate Reynolds enter this place when the Hon. Mike Elliott resigned. At that time the Hon. Kate Reynolds had not stood on the ballot at the previous election. This is a right of parties to nominate members and have them enter this place, and, as equal members in the chamber, it should be the right of Independents as well.

However, the honourable member seeks to treat those who voted for an Independent ticket with contempt by disregarding their express wish which is indicated by the voters of this state. The honourable member would have us dishonour the voting public's preference to be properly represented by an Independent as reflected by the final election result. It is no secret that the voting public are disappointed and disillusioned with party politics and the fact that many times over their best interests do not seem to be the priority but rather they are often forced to endure legislation based on party loyalties. Again, WorkCover is a perfect example of this.

I will be moving amendments which, unlike this bill, empowers Independents and, in turn, those who voted for them with the same rights as those currently afforded to parties by ensuring that, if a casual vacancy is left by a departing Independent, the vacancy must be filled by the nominee of the former member. If the former member is unwilling or unable to nominate a candidate of their preference, then if the former member was part of a ballot paper grouping, the appointee must be the subsequent person on the ballot ticket. However, if there is no such candidate or the candidate is unwilling, then my amendment, like the honourable member's bill, would revert to the party whose candidate received the 12th highest number of votes. I find this preferable to a joint sitting of parliament, which would presumably be government controlled, appointing a replacement member.

We also have a similar situation that has come about by the resignation of the Hon. Andrew Evans from Family First. That party has nominated a replacement in the Hon. Robert Brokenshire, a former Liberal Party member of the House of Assembly. How could such privilege be made available to parties and not to an Independent? What this shows to me is that the presence of Independents is seen as a threat and that this bill will serve to enshrine in legislation discrimination based on the party's reluctance to accept that the voting public are not in sync with the policies proposed by that party and that gradual dismantling of the party has occurred for this reason and no other.

As an Independent, I am able to move from what is perceived to be left to right, not based on minority groups and the votes that may be attracted from those groups, but rather based on research and evidence, and the costs and benefits that legislation will have for all South Australians.

In my mind, the decisions I make are based on removing discrimination, intolerance and restoring the human rights of all people and ensuring that the parliament and people of this state are also aware of their responsibilities as members of a diverse and often troubled society. The performance of all MPs should be based not on party politics but on what is in the best interests of the people they serve. This is essential in this place, the house of review, where I truly believe party politics should not even exist.

I implore all members to consider that there is benefit in working with Independents and that there is also great value in receiving an alternative view of the world outside the party room, away from the instructions of the powerbrokers of those parties. The majority of average citizens are now wanting their share of representation and their needs met. An American literary figure, H.L. Mencken, stated:

A professional politician is a professionally dishonest person. To reach a place of high office, that person has had to endure many humiliations and compromises so that over time the person becomes indistinguishable from a streetwalker.

These words are harsh and, when I read this quote, I was quite shocked that somebody would actually put that in writing, but let us look at the trust level that people have in politicians based on a recent survey where Bindi Irwin and the Wiggles beat politicians hands down in the trust test. What an indictment of our standing in the community! It is naive to think that there will not be ramifications of this lack of trust in the long term. I believe that the 2006 election was the electorate's way of saying, 'Sharpen up.'

The Hon. B.V. FINNIGAN (00:41): It is very tempting to make some choice reflections about the nature of democracy and the role of the Legislative Council, particularly given the speeches by the previous two members, but I think I will leave that for another time. The government does not support this bill. On Monday 15 October, the Hon. Nick Xenophon MLC resigned from state politics only one year into his eight-year term: perhaps that is one of the factors that has reduced trust in politicians, to which the Hon. Ms Bressington alluded.

The Hon. Mr Xenophon resigned to pursue a seat in the Senate at the election held later that year and was, of course, successful. The Hon. Mr Xenophon's resignation enlivened provisions of the Constitution Act about casual vacancies. Questions arose about whether Mr Xenophon belonged to a political party for the purposes of section 13(5) of the Constitution Act, which provides:

[where the member who has resigned] 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.

That, as you would know, Mr President, having come from a casual vacancy yourself (as, indeed, I did) is the normal course of events where the party nominates a person who is committed to the same platform as the person who was elected and who has resigned.

The government was satisfied by written statements made by the Hon. Mr Xenophon that he was a member of a political party and not an Independent. It was for the public to see the inconsistency in the Hon. Mr Xenophon's public and repeated statements of being an Independent and his later statements that he belonged to a political party. The Hon. Mr Xenophon's motivation for the later statements, I imagine, was to see his preferred candidate, the Hon. Mr Darley, elected to the Legislative Council, which is what the Assembly of Members determined.

At the time that the casual vacancy arose, the Hon. Ms Kanck, the mover of this bill, wrote to the Premier asserting that Ms Kate Reynolds, a former Democrat member of the Legislative Council, ought to fill the vacancy as she had the next highest number of actual votes at the 2006 election. The government found this to be a bizarre theory, not least because Ms Reynolds had publicly stated that she did not want the seat. In any event, the issue became null and void upon the Hon. Mr Xenophon making formal statements that he was a member of a political party. With this bill, the Hon. Ms Kanck wishes to amend our Constitution Act.

The Hon. A. Bressington: That is not right. He denied being in a political party.

The ACTING PRESIDENT (Hon. R.P. Wortley): Order!

The Hon. A. Bressington: Well, it is incorrect.

The Hon. B.V. FINNIGAN: I would ask the honourable member, if she is confused on this matter, to have a look at the Premier's remarks at the sitting of the Assembly of Members in which he made it quite clear that the reason that the Hon. Mr Darley was being nominated to the vacancy was that the political party provisions of the Constitution Act had been satisfied.

With this bill the Hon. Ms Kanck wishes to amend our Constitution Act, should the same situation occur in the future. The government does not see the bill as meritorious. The government opposes the amendments put forward by the Hon. Ann Bressington. All members of parliament are elected under the same set of casual vacancy rules, as set out in the Constitution Act, and those are the rules to which they agree on registering as a candidate.

If you are a member of a political party and publicly represent and are recognised as an endorsed candidate, the Constitution Act has a specific provision for your casual vacancy. If you are not a member of a political party your casual vacancy falls within the general provisions of section 13 of the act. The public expects a candidate to be up front and clear about whether or not they belong to a political party, and the government does not see merit in legislating for a blur between political party candidates and Independents. The government opposes the bill and would oppose the amendments, were they to get to a stage of being voted on.

The Hon. SANDRA KANCK (00:45): It is clear that there is no support for this bill, but I do wish to respond to some of the comments made. The Hon. Ann Bressington seems to be under the impression that this bill would basically rule out Independents from filling the position of an Independent. That is certainly not the case.

What this provides is, 'The Electoral Commissioner must, by notice in the Gazette, declare who was the continuing candidate'—not the continuing party, the continuing candidate—'who had the highest number of votes after all vacancies required to be filled had been filled at the election.' So, it is quite possible that that person defined as the continuing candidate could be an Independent.

Let us say, for example, that at the 2006 election the Hon. Nick Xenophon had received 13 per cent of the vote, with the Hon. Ann Bressington as his No. 2. It would have been perfectly possible, in that scenario, that the Hon. Ann Bressington would have been that continuing candidate. There is certainly no intention, with what I have here, to specify that it go to a political party: it is simply the next candidate in line, had there been a twelfth quota to be filled.

The Hon. Bernie Finnigan was saying that the Hon. Nick Xenophon had said that he belonged to a political party: quite the contrary, and he made the statement on numerous occasions that when he shaved in the morning that was his 'party' meeting.

The consequence of the mild constitutional crisis that arose at that time was that the Premier made a ministerial statement—in fact, he might have even made two of them—in which he said that because of this the choice that was made by the joint sitting was justiciable. In other words, he was saying that it could be taken to court, although nobody did on this particular occasion. What I was attempting to do with this bill was to ensure that in the future, should that happen, we removed the risk of it being challenged in court.

I am pleased to hear the response from the Hon. Mr Lawson that although his party does not support this particular method—and he has not explained exactly what method he does prefer—it is certainly willing to entertain a further bill. I think that is good news, because in the electorate at large there is certainly a fascination with Independents.

I expect that, come the next election in 2010, we will see more Independents elected. Sooner or later, unless we pass some legislation to deal with this, we will face the situation where a casual vacancy needs to be created to replace an Independent and we will find it being contested in our courts.

I indicate some disappointment that we will not be able to take this into committee and tease out these issues more but, as I said, I am pleased to hear that the opposition recognises that there is a potential problem in the future.

Second reading negatived.

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