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Legislative Council - Fifty-First Parliament, Second Session (51-2)
2007-11-13 Daily Xml
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Ministerial Statement

LEGISLATIVE COUNCIL VACANCY

The Hon. P. HOLLOWAY (Minister for Police, Minister for Mineral Resources Development, Minister for Urban Development and Planning) (14:25): I lay on the table a copy of a ministerial statement relating to the Legislative Council casual vacancy made earlier today in another place by my colleague the Premier. It reads:

The government intends to recommend to His Excellency the Governor in Executive Council that a proclamation be issued for a joint sitting of the House of Assembly and the Legislative Council on Wednesday 21 November at 9.30am to fill the casual vacancy in the Legislative Council caused by the resignation of Mr Nick Xenophon.

As I have previously informed the house, the government will act in accordance with its legal advice in relation to the filling of the vacancy. In a detailed statement to the house, I set out the requirements that must be met before the provisions of section 15(4) of the Constitution Act could operate to allow the appointment of a person nominated by the No Pokies Campaign.

In essence, the Constitution requires that the No Pokies campaign must establish, amongst other things, that it is a political party (though not necessarily registered under the Electoral Act), that it endorsed Mr Xenophon as a candidate for the 2006 election, that it publicly recognised that endorsement and that Mr Xenophon represented himself as an endorsed candidate of the campaign.

I wrote to Mr Xenophon on 24 October 2007 and invited him to place any material before me relevant to those issues to enable me to obtain further advice and give the matter full consideration. On 1 November 2007, Mr Xenophon responded in his private capacity. Mr Xenophon finally conceded that the provisions of the Constitution Act that allow for the filling of casual vacancies in cases of party appointment do not apply. In those circumstances, I am advised that the parliament—that is, the joint sitting—has an unfettered discretion as to who it elects to fill the vacancy. Some, including Mr Xenophon, have urged the government to follow convention. In support of that contention, they seek to rely on the words of a former premier, the late Don Dunstan, when he spoke at a joint sitting in 1977. The opposition leader in another place has also relied on those words.

Both the leader and Mr Xenophon overlook the fact that the 1977 joint sitting was convened to fill a senate vacancy, not a Legislative Council vacancy. In any event, the provisions of the current South Australian Constitution were enacted in 1985, well after Don Dunstan had left the parliament, and long before he addressed that joint sitting. They could not get the right law, let alone the right constitution. The fundamental point about conventions is that they are established by long accepted custom and practice that is widely recognised and followed. It would be very unusual to rely on one or even two instances as a convention. The fact is that the events of 1977 surrounding the senate vacancy and the appointment of a replacement are so far removed from the current circumstances that they do not assist in establishing a convention or a binding precedent.

The selection of a person to fill the 1977 senate vacancy created by the resignation of former Liberal senator Steele Hall turned on the question of which party had the moral if not the constitutional right to claim the vacancy. The changes to the commonwealth Constitution did not deal with the situation where a retiring or deceased senator had been a member of a political party at the time of his election and where that party had become defunct at the time the vacancy occurred. On the one hand, the Australian Democrats, which had evolved from the Liberal Movement, claimed the vacancy as theirs. On the other hand, the Liberal Party claimed the vacancy. It is a matter of historical record that the late Janine Haines was appointed. It was a question fairly and squarely about party structures and affiliation.

In the present case involving Mr Xenophon, it is clearly not about a political party. Mr Xenophon and Mr Darley were both independent candidates. Mr Xenophon in his letter to me confirms that he was not endorsed by a political party. To my knowledge, there is no convention relating to the filling of council vacancies caused by the death or premature resignation of an independent Legislative Councillor. No person, party or other organisation has been able to point to or establish the existence of a convention in these circumstances. The parliament is, therefore, navigating uncharted waters.

While there is no convention, common sense would support the proposition of replacing an independent with another independent. In a very real sense, it reflects the choice made by the electorate to the extent that it supported an independent No Pokies ticket above that of the major parties or the Democrats. I have previously advised the council that it is my expectation that Mr John Darley will be nominated to replace Mr Xenophon. I have seen or read nothing which alters my view about that. Therefore, with the support of my government, I intend to nominate Mr John Darley at the joint sitting to fill the vacancy caused by Mr Xenophon's resignation. Mr Darley has confirmed his willingness to accept the appointment.

I hasten to add that I do not expect future joint sittings or future generations to rely on this support and these noble words as a precedent for establishing a convention. The circumstances of this situation are unique and too unusual to be considered as a precedent. I urge members to do the right thing, the decent thing, and support the nomination of Mr Darley, although all members are free to nominate other persons as there is neither convention nor precedent. I should advise that, if there is more than one nomination and a ballot is required, a secret ballot will be conducted.

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