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Legislative Council - Fifty-First Parliament, Second Session (51-2)
2007-10-24 Daily Xml
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Ministerial Statement

XENOPHON, HON. N.

The Hon. P. HOLLOWAY (Minister for Police, Minister for Mineral Resources Development, Minister for Urban Development and Planning) (14:18): I seek leave to read a ministerial statement that was just given by the Premier in another place.

Leave granted.

The Hon. P. HOLLOWAY: As the statement relates to the constitutional requirements for filling the casual vacancy in the Legislative Council, I believe I should read it out here. The Premier stated:

Yesterday I informed the house that the government will act in accordance with its legal advice in relation to the filling of the casual vacancy caused by the decision of Mr Nick Xenophon to prematurely quit the Legislative Council.

I will turn to the legal advice the government has received in a moment. In essence, what it says is that to nominate an eligible candidate to fill the vacancy the No Pokies Campaign must establish, amongst other things, that it is a political party, that it endorsed Mr Xenophon as a candidate for the 2006 election, that it publicly recognised that endorsement and, importantly, that Mr Xenophon represented himself as the endorsed candidate of the campaign.

I informed the house yesterday that I had not received a letter from Mr Xenophon, the No Pokies Campaign, or the mooted replacement, anti land tax campaigner, Mr John Darley, about the replacement. Following my statement I received a letter from Mr Xenophon, originating from his legal practice. He repeats his public statement that Mr Darley is his preferred replacement. If, by that letter, Mr Xenophon purports to satisfy the requirements of the Constitution Act then he has completely failed. As a practising lawyer he should know better. Certainly, his public statements immediately following the March 2006 election suggest he knows more than he is now prepared to acknowledge.

On Monday 20 March 2006, two days after the election, when asked who would fill the casual vacancy if something should happen to his running mate Ann Bressington, Nick Xenophon said this on Radio 891:

'It's a very interesting constitutional point...it's unprecedented so I don't know what the answer is. It's being looked into. Because I am not a political party it raises all sorts of issues as to what will happen. Hopefully nothing will happen to Ann in the next eight years and nothing to me.'

In that exchange Mr Xenophon disclosed the complexity of this constitutional issue and, in particular, the relevance of party status in the selection of a replacement. Mr Xenophon makes no mention of that matter in his letter to me yesterday. Nor does he purport to act with the authority of any party or the No Pokies Campaign itself.

As I have indicated, an eligible nomination can only be accepted by the joint sitting of the houses if Mr Xenophon has publicly represented himself as the endorsed candidate of the No Pokies Campaign operating as a political party. Satisfying this requirement may prove difficult to reconcile with Mr Xenophon's public mantra that he is an Independent. For example, on election night in March 2006, in relation to the election of Ms Bressington and the issue of political parties, he said that his party room meetings would be when he was shaving in front of the mirror. He confirmed that view on ABC Radio on Monday 20 March 2006, when he told ABC listeners that that would not change 'because Ann Bressington ran on my ticket, but we are Independents'. Certainly that view was persuasive with Ms Bressington. She told the Weekend Australian of 25 March 2006 that Mr Xenophon had asked her and anti-tax lobbyist John Darley to join him on the ticket simply so the Xenophon name would appear above the line on the voting card.

Ms Bressington also told The Advertiser of 20 March 2006 that the two would remain independent. She went on to say, 'Nick is so anti party politics'. Mr Xenophon himself in the same article expressed that he would remain independent, regardless of the number of seats he won. He said, 'I'm never going to change from independent. I'm never going to be a minister and I will never join any party.' A widely circulated political pamphlet distributed by Mr Xenophon for the 2006 election was personally authorised by him. In it he refers to himself as an Independent. There is no acknowledgement that he is endorsed by the No Pokies Campaign acting as a political party. Election advertisements are likewise authorised personally by Mr Xenophon, care of his legal practice address. I table a copy of the pamphlet and advertisement for the information of honourable members.

Campaign donations are sought for a campaign in his own name. It would appear Mr Xenophon wants to have his cake and eat it too. When he considers there is electoral advantage to assert his independence, he does so at every opportunity. Now, when he has decided he has outgrown our parliament and he wants to appoint his successor, he pretends to have some authority to nominate his preferred candidate. It is clear from his previous public statements that Mr Xenophon, a lawyer, knows the nomination must come from a political party. The parliament and the public have a right to know whether Mr Xenophon is making this nomination as a representative of a political party. If so, where is the evidence to satisfy the requirements of the Constitution and, if so, what does this say about his so-called independent campaign for the Senate?

To date I have not been approached by any person or organisation to demonstrate the right to nominate an eligible candidate to fill the casual vacancy. Obviously it will be preferable to resolve this issue before the joint sitting of the houses rather than the sitting itself. The government does not want to see the situation descend into a constitutional crisis or fiasco or give opportunistic politicians the forum for political stunts.

I am advised that the nomination and selection of the replacement is justiciable, that is, it can be challenged in the Supreme Court of South Australia. It is therefore imperative that the filling of the casual vacancy be done properly and in accordance with the law so as to avoid a legal challenge that would only serve to undermine the integrity of the Legislative Council. I have written to Mr Xenophon, inviting him to place before me any relevant material, including whether he is acting on behalf of a political party, so that I may give my full consideration to whether his nomination falls within section 13(5) of the Constitution Act. I await a responsible and properly presented approach with anticipation, and a commitment to act in accordance with the Constitution, the law and relevant conventions.

I now turn to the constitutional requirements for the filling of a casual vacancy in the council. Section 13(1) of the Constitution Act makes clear that the person to be chosen to fill a casual vacancy in the Legislative Council is to be selected by an assembly, that is, a joint sitting of members of both houses of parliament. It will therefore be necessary to conduct an assembly to select the replacement for Mr Xenophon. That assembly must be conducted in accordance with section 13(4).

Section 13(4)(a) provides that the assembly shall meet at a time and a place fixed by proclamation. Thus, the Governor will determine the time of the assembly. I am advised that the assembly should be convened as soon as reasonably practicable having regard to all relevant considerations. In other words, the assembly should not be unduly delayed nor need it be unduly rushed. It may be delayed if some good reason exists but not for an excessive period. In practice, that means the time will be determined by cabinet.

As I have indicated, it is my intention to recommend to the Governor a date prior to the federal election. That, of course, will be subject to resolution of the issue of who is eligible to be nominated. Any question before the assembly is to be decided by a majority of the votes cast by the members actually present at the meeting. Each member present at the assembly, except the person presiding, has one deliberative vote; the presiding member has a casting vote.

Section 13(5) requires that 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 an candidate' the person chosen by the assembly to fill the 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.

Members interjecting:

The PRESIDENT: Order! It is a very important matter.

The Hon. P. HOLLOWAY: I think I should read that again, as follows:

Section 13(5) requires that 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 fill the 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.

I am firmly advised that, before section 13(5) can govern the process, the relevant political party, rather than Mr Xenophon personally, must nominate Mr Darley (or another of its members) as his replacement. I am also advised that, before making a decision to support a candidate nominated by that party, the government should satisfy itself that there is sufficient evidence that the nomination is within section 13(5); that is:

(a) whether at the time of the 2006 election the No Pokies Campaign Inc. (or some other relevant group) was a political party, albeit not registered as such, on the basis that it had amongst its objects the promotion of the election of candidates endorsed by it;

(b) alternatively, whether at the time of the 2006 election the No Pokies Campaign (or some other relevant group) was a political party, albeit not registered as such, on the basis that one of its activities was to promote the election of candidates endorsed by it;

(c) if the answer to either (a) or (b) is 'yes', whether Mr Xenophon was the endorsed candidate of the campaign (or some other relevant group) for the 2006 election;

(d) whether the campaign (or the other relevant group) publicly recognised that fact;

(e) whether Mr Xenophon publicly represented himself as the endorsed candidate of the campaign (or the other relevant group) at the 2006 election. He should be specifically asked to reconcile any such claim with his frequent use of the label 'independent'; and

(f) whether the person now recognised by the campaign (or the other relevant group), whether Mr Darley or someone else is, currently a member of the campaign or relevant group.

I am advised that Mr Xenophon was nominated by a registered political party under section 53 of the Electoral Act 1985. I am also advised that the No Pokies Campaign is not a registered political party under Part 6 of the Electoral Act. For that reason, Mr Xenophon had applied under section 58 of the Electoral Act to be grouped together with other candidates on the ballot paper. The effect of section 58 is to permit Independent candidates to group together so as to obtain the benefit of 'above the line' voting. Section 13(5) of the Constitution Act does not refer to registered political parties. It simply refers to 'a particular political party'.

I am advised that the term 'political party' is defined in section 4 of the Electoral Act to mean 'an organisation of which an object of activity is the promotion of the election to the House of Assembly or the Legislative Council of candidates endorsed by it'. I am advised that the section 4 definition accurately reflects the meaning intended in the Constitution Act. Adoption of the same meaning also enables the Electoral Act and the Constitution Act to operate as a coherent legislative package. Moreover, the definition also reflects the ordinary meaning of the term 'political party'.

On that point, I leave you with Nick Xenophon's own words on Radio Station FIVEaa on 20 March 2006, two days after he was re-elected for his second eight-year term. Mr Xenophon said: 'We're not a party, I've never been a party, I'm an Independent.'

I now table a pamphlet and electoral advertisement for the 2006 election authorised by Mr Xenophon in his personal capacity.

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