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This is a Bill, not an Act. For current law, see the Acts databases.
South Australia
Constitution (Casual Vacancies) Amendment
Bill 2009
A BILL FOR
An Act to amend the Constitution Act 1934; and to make related
amendments to the Electoral Act 1985.
Contents
Part 1—Preliminary
1 Short
title
2 Amendment provisions
Part 2—Amendment of Constitution
Act 1934
3 Repeal of section 13—Casual
vacancies
4 Insertion of section 37A
37A Casual
vacancies
Schedule 1—Related amendments and transitional
provisions
Part 1—Related amendment to Electoral
Act 1985
1 Amendment of section 47—Issue of
writ
Part 2—Transitional provision
2 Transitional
provision
The Parliament of South Australia enacts as
follows:
This Act may be cited as the Constitution (Casual Vacancies) Amendment
Act 2009.
In this Act, a provision under a heading referring to the amendment of a
specified Act amends the Act so specified.
Part 2—Amendment
of Constitution
Act 1934
3—Repeal of
section 13—Casual vacancies
Section 13—delete the section
Before section 38 insert:
37A—Casual vacancies
(1) This section applies to—
(a) a casual vacancy occurring in the Legislative Council; or
(b) a casual vacancy occurring in the House of Assembly
if—
(i) the member whose seat has become vacant—
(A) 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
(B) publicly represented himself or herself, at the time of his or her
election, to be such a candidate,
and that party has nominated a member of that party to occupy the vacancy;
or
(ii) the member whose seat has become vacant was not a person described in
subparagraph (i) but has nominated, by notice in writing to the Speaker of
the House of Assembly, a person whom he or she wishes to be chosen, in
accordance with this section, to occupy the vacant seat.
(2) Subject to this section, if this section applies to a casual vacancy
occurring by death, resignation or otherwise in the seat of a member of either
House of Parliament, a person will be chosen to occupy the vacant seat by an
assembly of the members of both Houses of Parliament.
(3) An assembly need not be held under subsection (2) to supply a
casual vacancy if the vacancy occurs 3 months or less before—
(a) in the case of a member of the Legislative Council—a day on
which the former member would, if circumstances giving rise to a casual vacancy
had not occurred have been required to retire in any event; or
(b) in the case of a member of the House of Assembly—a day on which
a general election of members of the House of Assembly must be held in
accordance with section 28.
(4) Where—
(a) a casual vacancy occurs in the seat of a member of either House of
Parliament; and
(b) the House of Assembly is dissolved by the Governor (otherwise than in
pursuance of section 41) or expires by effluxion of time; and
(c) as at the date of the dissolution or expiry, no assembly of the
members of both Houses of Parliament had been held to choose a person to occupy
the vacant seat; and
(d) in the case of a casual vacancy occurring in the seat of a member of
the Legislative Council—the member formerly occupying the seat would, if
the casual vacancy had not occurred, have been one of those required to retire
under section 14(2),
the vacancy must be supplied at the ensuing election.
(5) The following provisions apply in relation to the constitution and
proceedings of an assembly that is, in pursuance of subsection (2), to
choose a person to occupy a casual vacancy:
(a) the assembly will meet at a time and place appointed by
proclamation;
(b) a member of the House of Assembly or the Legislative Council appointed
by proclamation will preside over the assembly;
(c) a suitable person will be appointed by proclamation to be the clerk of
the assembly;
(d) the procedural rules (if any) prescribed by proclamation must be
observed at the assembly and, in the absence of a rule governing a particular
question of procedure that arises before the assembly, that question must be
decided by the person presiding or, if the assembly is dissatisfied with that
person's decision, by the assembly itself;
(e) the members of the assembly have, in relation to proceedings before
the assembly, the same privileges and immunities as the members of the House of
Assembly in relation to proceedings before that House;
(f) the person presiding over the assembly and the assembly itself have
respectively the same powers to maintain order as the Speaker and the House of
Assembly;
(g) there is no requirement for all members of both Houses of Parliament
to be present at a meeting of the assembly;
(h) a question before the assembly will be decided by a majority of the
votes cast by the members present at a meeting of the assembly;
(i) each member present at a meeting of the assembly, except the person
presiding, is entitled to 1 vote on a question arising before the assembly and,
in the event of an equality of votes, the person presiding will have a casting
vote.
(6) If this section applies to a casual vacancy and the member whose seat
has become 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 will, 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.
(7) If this section applies to a casual vacancy and the member whose seat
has become vacant was not a person described in subsection (6) but has
nominated, by notice in writing to—
(a) in the case of a member of the Legislative Council—the president
of the Legislative Council; or
(b) in the case of a member of the House of Assembly—the Speaker of
the House of Assembly,
a person whom he or she wishes to be chosen, in accordance with this
section, to occupy the vacant seat, the person chosen by the assembly to occupy
that vacancy will be the person so nominated.
(8) If a person nominated to occupy a casual vacancy in accordance with
this section is a person who would—
(a) in the case of a nomination to occupy a casual vacancy occurring in
the Legislative Council—be required to immediately vacate his or her seat
in accordance with section 17; or
(b) in the case of a nomination to occupy a casual vacancy occurring in
the House of Assembly—be required to immediately vacate his or her seat in
accordance with section 31,
the nomination will be taken to be invalid and of no effect.
Schedule 1—Related
amendments and transitional provisions
Part 1—Related amendment to Electoral
Act 1985
1—Amendment of
section 47—Issue of writ
Section 47(2)(a)—after "occurs" insert:
(other than a casual vacancy to which section 37A of the Constitution
Act 1934 applies)
Part 2—Transitional provision
The amendments effected by this Act apply in relation to a casual vacancy
occurring after the commencement of this Act, whether the member whose seat has
become vacant was elected before or after the commencement of this
Act.