Members are aware of the unethical behaviour of Cory Bernardi and Rachel Carling-Jenkins when they conspired to take the legislative council seat of Western Metropolitan to which the DLP had been elected by the voters of that region.
The state executive has contacted the Governor of Victoria and the President of the Legislative Council and advised that we consider the defection of Rachel Carling-Jenkins to have caused a casual vacancy. We requested that a joint session of parliament be called at which the seat could be filled by a DLP nominee.
In response, the Governor referred the executive to the President of the Legislative Council. The President responded to the request of the state executive and advised that he considered that under the circumstances there was no casual vacancy and as such a joint session of parliament would not be called.
On Tuesday 22nd August 2017 the President, the Hon Bruce Atkinson, made the following statement to the Legislative Council.
“I just want to make another shorter statement to the house to clarify another matter — that is, a member changing party or affiliation and casual vacancies. As the house has been advised, Dr Carling-Jenkins has changed parties. She was elected as a member of the DLP and has now joined the Australian Conservatives. The DLP sought advice from me, and indeed from the Governor, as to whether or not Dr Carling-Jenkins was entitled to continue as a member of this place or whether they were able to seek to nominate a new member of Parliament, given that she had been elected as a member of the party on the occasion of the last state election. So I make the following statement.
As this house will be aware, one of its members has recently changed their party affiliation. The house has also experienced on a number of occasions the resignation of a Council member leading to a casual vacancy. It is important that I take this opportunity to remind the house of the distinction between these two actions and certain requirements under the Constitution Act 1975 when a Council member’s seat becomes vacant.
Firstly, the action of a member resigning from one political party and joining another party does not cause their seat to become vacant. The member may have changed their political party but importantly they have not resigned as a member of the Council, and as such no vacancy would exist. This is consistent with various changes in elected members’ party affiliations throughout Australian Parliaments in the past, including this one. Further, individual candidates, not political parties, are elected to seats in the Council and sworn in as members.
The Constitution Act outlines various circumstances in which a Council member’s seat becomes vacant, such as a resignation. Section 30 of the Constitution Act 1975 states: ‘A member may resign his or her seat by a letter addressed to the Governor and on its receipt by the Governor the seat of such member shall become vacant’. It is upon receipt of such advice from the Governor that this house proceeds to fill a casual vacancy through a joint sitting.
However, section 27A of the Constitution Act states that if a casual vacancy occurs, it is filled in a joint sitting by nomination of the registered political party that endorsed the member as a candidate at the previous election. In other words, if a member changes party affiliations mid-term and subsequently resigns, the political party that originally endorsed the candidate at the state election will be required to nominate a replacement.
I think that is probably an understood position. It might not just be a resignation of course; they might go to God”.
Members are naturally disappointed by this outcome but should be encouraged by the fact that since the defection of Rachel Carling-Jenkins the party has gained more members than it has lost.
We will continue to pursue the election of ethical and principled members of parliament and expect to win back the seat of Western Metropolitan, and others, at the next state election.
I would personally like to extend my thanks to all those members who have contacted me with their words of support as well as their financial support for the future of the party.
Victorian State Secretary