South Australian Current Acts South Australian Current Acts (1) Subject to this
section, the office of a member of a council becomes vacant if the
member—
(a)
dies; or
(b)
resigns by notice in writing to the chief executive officer; or
(c) is
removed from office by the Governor on the ground of incapacity to carry out
official duties satisfactorily; or
(d) is
removed from office by the council on the ground that he or she has been
absent, without leave of the council, from three or more consecutive ordinary
meetings of the council; or
(e)
becomes a member of an Australian Parliament; or
(f) is
declared bankrupt or applies for the benefit of a law for the relief of
insolvent debtors; or
(h)
fails to submit a return under Part 14 of the
Local Government (Elections) Act 1999 before the expiration of one month
from the end of the period allowed under that Act for the submission of the
return; or
(i)
is convicted of an indictable offence punishable by
imprisonment; or
(j)
becomes an employee of the council; or
(k) is
disqualified from office by an order of a court or SACAT under this Act.
(1a) Despite
subsection (1)(h) but subject to subsection (1b)—
(a) the
office of a defaulting member will be taken not to be, and never to have been,
vacant as a result of the failure by the defaulting member to submit a
prescribed return before the expiration of 1 month from the end of the
relevant period for the member; and
(b)
—
(i)
nothing done or purportedly done by the defaulting member
in the performance or discharge of official functions or duties during the
defaulting period is invalid or unlawful; and
(ii)
no allowance, expense or other entitlement paid or
payable to a defaulting member in respect of their office during the
defaulting period is to be recovered or withheld,
by reason only of the failure referred to in paragraph (a) (and the
operation of subsection (1)(h) until the commencement of the Local
Government (Casual Vacancies) Amendment Act 2023 ).
(1b) The office of a
defaulting member becomes vacant if the defaulting member fails to submit a
prescribed return in accordance with the requirements of Part 14 of the
Local Government (Elections) Act 1999 (other than section 80(3)(b))
before the expiration of 10 business days after the day on which the
Local Government (Casual Vacancies) Amendment Act 2023 commences.
(1c)
Subsection (1b) does not apply to a defaulting member who submitted a
prescribed return during the defaulting period.
(1d) A reference in
subsection (4) to a failure to submit a return under Part 14 of the
Local Government (Elections) Act 1999 includes a reference to a failure
to submit a prescribed return under subsection (1b).
(1e) Nothing in
subsection (1a) or (1b) affects the operation of Part 14 of the
Local Government (Elections) Act 1999 in relation to the failure by a
defaulting member to submit a prescribed return in accordance with the
requirements of that Part.
(1f) No act or
proceeding of a council is invalid by reason only of the operation of
subsection (1a).
(2) If a member of a
council stands for election to an office in the council other than the one
presently held by the member, the latter office becomes vacant at the
conclusion of the election.
(2a)
Subsection (2) does not apply if—
(a) the
member is standing for election to a casual vacancy in the office of mayor but
is unsuccessful; or
(b)
—
(i)
the member is standing for election to a casual vacancy
in another office but is unsuccessful; and
(ii)
the conclusion of the election falls within
12 months before polling day for—
(A) a periodic election; or
(B) a general election (other than a
periodic election) if the date of that polling day is known at the time of the
occurrence of the vacancy.
(3) The resignation of
a member takes effect on receipt by the chief executive officer of the notice
of resignation or on a later date, not more than 14 days in advance, specified
in the notice of resignation (but once the notice is received by the
chief executive officer the resignation cannot be withdrawn).
(4) If a member's
office becomes vacant because of the member's failure to submit a return under
Part 14 of the Local Government (Elections) Act 1999 —
(a)
SACAT may, on application made within one month after the vacation of office,
restore the member to office if satisfied that the failure arose from
circumstances beyond the member's control; and
(b)
proceedings for a supplementary election to fill the vacancy must not be
commenced until the period for making an application under paragraph (a)
has expired or, if there is an application, until the application is
determined; and
(c) the
member cannot be nominated as a candidate for the election to fill the vacancy
unless he or she has submitted to the chief executive officer the return that
was required to be submitted.
(5) If a member's
office becomes vacant because the member has been convicted of an offence
under subsection (1)(i), proceedings for a supplementary election to fill
the vacancy (if required) must not be commenced until the period for appealing
against the conviction has expired or, if there is an appeal, until the appeal
is determined.
(6) If the office of a
member of a council becomes vacant under subsection (1) or (1b), the
chief executive officer must notify the members of the council at the next
meeting of the council and give notice of the occurrence of the vacancy in the
Gazette (but the members of the council need not be notified if the member is
removed from office by the council).
(7) A member's office
does not become vacant by reason only of the fact that the member, after an
election or appointment, ceases to be an elector for the area.
(8) If a casual
vacancy occurs in the office of mayor—
(a) on
or after 1 January of a year in which a periodic election is due to be held
(and before polling day for that periodic election); or
(b)
within 7 months before polling day for a general election (other than a
periodic election) (the date of that polling day being known at that time),
a member chosen by the council may act in the office of mayor until the
conclusion of the election.
(9) The member chosen
under subsection (8) may, but need not, be the deputy mayor (if any).
(10) If a person is to
be chosen under subsection (8) and the votes for 2 or more candidates are
equal, lots must be drawn to determine which candidate or candidates will be
excluded.
(11) In this
section—
"defaulting member" means a member of a council who failed to submit a
prescribed return before the expiration of 1 month from the end of the
relevant period for the member;
"defaulting period", in relation to a defaulting member, means the period
commencing on the expiration of 1 month from the end of the relevant
period for the member and ending on the commencement of the Local Government
(Casual Vacancies) Amendment Act 2023 ;
"prescribed return", in relation to the periodic elections (within the meaning
of section 5 of the Local Government (Elections) Act 1999 ) held
in 2022, means the campaign donations return required to be furnished by
a member under Part 14 of the Local Government (Elections) Act 1999
within 30 days after the conclusion of the election (held as part of
those periodic elections) at which the member was elected (the "relevant
period for a member );
"relevant period for a member"—see the definition of "prescribed
return".