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Legislative Council - Fifty-First Parliament, Second Session (51-2)
2007-10-25 Daily Xml
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XENOPHON, HON. N.

The Hon. R.D. LAWSON (14:35): I seek leave to make a brief explanation before asking the Leader of the Government a question about Mr Xenophon's replacement.

Leave granted.

The Hon. R.D. LAWSON: In 1977, when the issue presently before the parliament in relation to Mr Xenophon came before the South Australian parliament, the Hon. Don Dunstan made a number of statements about the appropriate (to use his words) 'principle to be followed'. I remind members that in 1977 the South Australian Constitution contained provisions exactly the same as the federal Constitution relating to the filling of casual vacancies within the Senate. Those words provided that 'the new member must have been publicly recognised by a particular political party as being an endorsed candidate of that party.' The issue then was whether or not there was a party (formerly the Liberal Movement).

The government's legal advice—and the Hon. Don Dunstan agreed with it—was that there was no political party; so the words of the section did not apply and the parliament should follow principal and precedent. In relation to that the Hon. Don Dunstan said (and I quote from the Hansard of 7 December 1977):

...how are we to give effect to the voice of the electors expressed at the election when Senator Hall [who was the retiring senator] was elected to the Senate?

He said it had been proposed by the member for Mitcham (Hon. Robin Millhouse) that 'the nomination should come from a member of the grouping in the Senate team in which Senator Hall ran'—the grouping; not the political party but the grouping.

The Hon. Don Dunstan went on to say that the government of that day, endeavouring to do what was right, had 'come to the conclusion that it has no alternative but to support the nomination of the third member of that team.' He said nothing about the political parties; he talked about groups and teams.

Yesterday, in a very lengthy ministerial statement wildly critical of the Hon. Mr Xenophon, the Premier said that the Hon. Mr Xenophon was not a member of a political party, and he went on to say:

As I have indicated, an eligible nomination can only be accepted by the joint sitting...if Mr Xenophon has publicly represented himself as the endorsed candidate of the No Pokies Campaign operating as a political party.

The government has been arguing strongly that Mr Xenophon is not a member of a political party and therefore the principle enunciated by Don Dunstan ought be followed here. I should also mention the statement made this day in another place by the Premier when he said that it was finally the intention of the Labor Party to nominate Mr Darley. My questions to the minister are:

1. These points were all obvious from the beginning. Why is it only today that the government has finally agreed to nominate Mr Darley?

2. Why did the government not announce before today its intentions in relation to Mr Darley, having regard to the fact that the Premier says it was and is the Labor Party's intention?

3. Why will not the government immediately convene an assembly of members to allow principle and precedent to be followed, to (once again, as the Hon. Don Dunstan said) give voice to the views expressed by the electors at the election of the retiring member?

The Hon. P. HOLLOWAY (Minister for Police, Minister for Mineral Resources Development, Minister for Urban Development and Planning) (14:39): Yesterday I made a detailed statement to this council identical to that of the Premier which set out the many constitutional issues that are involved with the Hon. Nick Xenophon's move to the Senate. Don Dunstan's comments, if I heard the honourable member correctly, were about the Senate. Senate vacancies are filled under the Australian Constitution, and the amendments that have been passed in the Australian Senate. This state has its own Constitution, and any vacancy to be filled in this council needs to be done under the Constitution of South Australia, not the Australian Constitution.

In any case, whatever the issues were in relation to the Liberal Movement back in the 1970s, we all know that the honourable member who asked the question, along with his leader in the lower house, is probably one of the inheritors of the Liberal Movement tradition, unlike the conservatives within in the party such as the Leader of the Opposition and the former leader of the opposition, who come from the other faction in the Liberal Party.

Whether you compare the Liberal Movement as a political party with the No Pokies Campaign is a moot point. Whether or not that is the case, I would have thought that, particularly since the Hon. Sandra Kanck has raised with the Premier the issue of eligibility and given that it is justiciable, it is prudent and appropriate that the government should get legal advice in relation to it.

Whether or not the Liberal Movement is equivalent to the No Pokies Campaign in the context of whether or not it is a party under the terms of this state's Constitution I think is a matter on which any government would be wise to get advice from the Solicitor-General, and we will do that.

The PRESIDENT: Order! I think I can remember the last Senate position taking some time to fill.

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