Division 2Division 2 Special provisions relating to the Legislative Council
In this Division:periodic Council election includes an election for the return of 15 Members of the Legislative Council held after the commencement of the Constitution and Parliamentary Electorates and Elections (Amendment) Act 1978 and before the commencement of the 1991 reconstitution Act.
the 1991 reconstitution Act means the Constitution (Legislative Council) Amendment Act 1991.
17 Reconstitution of the Legislative Council
(1) On the commencement of the 1991 reconstitution Act, the Legislative Council is reconstituted.(2) On and from that commencement, the Legislative Council shall (subject to this Division) consist of 42 Members elected at periodic Council elections.(3) The following Members of the Legislative Council cease to be Members on the commencement of the 1991 reconstitution Act:(a) the last 3 members of the Legislative Council elected at the third-last periodic Council election held before that commencement,(b) if the seat of such a Member has become vacant since that periodic Council election—a Member of the Legislative Council who is the successor (whether immediate, intermediate or ultimate) of that Member.
22 Eligibility to vote at periodic Council elections
The persons who would, if a periodic Council election were a general election of Members of the Legislative Assembly, be entitled to vote at that general election, and only those persons, shall be entitled to vote at that periodic Council election.
22A Conduct of periodic Council elections
(1) Periodic Council elections shall be conducted in accordance with the provisions of the Sixth Schedule.(2) (Repealed)(3) A writ for a periodic Council election shall not be issued until after the issue of the writs for the general election of Members of the Legislative Assembly held next after the immediately preceding periodic Council election and, when issued, shall name as the day for the taking of the poll the same day as the day for the taking of the poll at that general election.(4) A reference in subsection (3) to a writ does not include a reference to a writ issued by reason of the failure of an election, including a failure of an election by reason of its being declared void in accordance with law.(5) Subsection (1) does not limit the power of the Legislature to make laws (being laws that do not expressly or impliedly repeal or amend any of the provisions of the Sixth Schedule and are not inconsistent with any of those provisions) for or with respect to the conduct of periodic Council elections.
22B Term of service of Members of Legislative Council
(1) A Member of the Legislative Council shall cease to be a Member of the Legislative Council:(a) on the day of his death,(b) on the day on which his seat as such a Member becomes vacant, otherwise than by reason of paragraph (c), or(c) on the day on which his term of service as a Member expires under subsection (2), (3) or (4),whichever first occurs.(2) Subject to subsection (4), the term of service of a Member of the Legislative Council (other than a long-term continuing Member) shall expire on the day of the termination, either by dissolution or expiry, of the Legislative Assembly next preceding the second general election of Members of the Legislative Assembly to be held after his or her election as a Member of the Legislative Council.(3) Subject to subsection (4), the term of service of a long-term continuing Member shall expire on the day of the termination, either by dissolution or expiry, of the Legislative Assembly next preceding the third general election of Members of the Legislative Assembly to be held after his or her election as a Member of the Legislative Council.(4) The term of service of a Member of the Legislative Council elected to fill the seat of another Member which has become vacant otherwise than by reason of subsection (1) (c) shall expire on the day on which that other Member’s seat would have become vacant by reason of subsection (1) (c).(5) In this section, long-term continuing Member means:(a) a member of the Legislative Council who was one of the first 12 Members elected at the third-last periodic Council election held before the commencement of the 1991 reconstitution Act, or(b) a Member of the Legislative Council who was one of the first 6 Members elected at the second-last periodic Council election held before that commencement, or(c) if the seat of a Member referred to in paragraph (a) or (b) has become vacant since the periodic Council election concerned—a Member of the Legislative Council who is the successor (whether immediate, intermediate or ultimate) of that Member.
22D Filling of casual vacancies in seats of Members of Legislative Council by joint sitting of both Houses
(1) Whenever:(a) a vacancy occurs in the seat of a Member of the Legislative Council otherwise than by reason of section 22B (1) (c), or(b) a vacancy occurs in the seat of a Member of the Legislative Council by reason of section 22B (1) (c) and that vacancy is not filled by reason that insufficient Members of the Legislative Council are elected at the periodic Council election next following the occurrence of the vacancy,the Governor, by message to both Houses of Parliament, shall convene a joint sitting of the Members of the Legislative Assembly and the Members of the Legislative Council to be held at a place and time specified in the message for the purpose of the election of a person to fill the vacant seat.(2) A person may not be nominated at any such joint sitting for election to fill a vacant seat of an elected Member of the Legislative Council if he is not eligible to be so nominated under subsection (3) or, if applicable, subsection (4).(3) A person is not eligible to be so nominated if, were he a Member of the Legislative Council, he would be disqualified from sitting or voting as such a Member.(4) Where:(a) a Member of the Legislative Council was elected at a periodic Council election and was, at the time of his election, publicly recognised by a particular political party as being an endorsed candidate of that party and publicly represented himself to be such a candidate, and(b) the vacancy (not being a vacancy referred to in subsection (1) (b)) to be filled is in the seat of that Member or of the successor (whether immediate, intermediate or ultimate) of that Member,a person is not eligible to be so nominated unless he is a member of that party, except where there is no member of that party available to be so nominated.(5) This section does not apply to or in respect of a vacancy that occurs by reason that a periodic Council election is declared void in accordance with law.
22E Members elected at joint sittings of both Houses of Parliament
(1) The oath or affirmation required to be taken and subscribed or made by a Member of the Legislative Council under section 12 shall not be taken or made by a person elected at a joint sitting to fill a vacancy referred to in section 22D (1) (a) until the expiration of 2 days after his election.(2) If, before a person elected at a joint sitting to fill a vacancy referred to in section 22D (1) (a) takes and subscribes the oath or makes the affirmation required to be taken and subscribed or made under section 12, he ceases to be a member of the political party membership of which was necessary under section 22D (4) for him to be eligible to be nominated for that election, he shall be deemed not to have been elected at that joint sitting and the vacant seat of the Member which he was elected to fill shall, when he so ceases to be a member of that party, again be vacant.(3) More than one vacancy may be filled at the one joint sitting.
22F Suspension of Legislative Council business for general election of the Legislative Assembly
The Legislative Council shall not be competent to dispatch any business during the period commencing on the day of the termination, either by dissolution or expiry, of any Legislative Assembly and ending on the day fixed for the return of the writ for the periodic Council election held next after that termination.
(1) There shall be a President of the Legislative Council, who is the Presiding Officer of the Legislative Council and is recognised as its independent and impartial representative.(2) A person shall be chosen to be President of the Legislative Council:(a) before the Legislative Council proceeds to the dispatch of any other business at its first meeting following a periodic Council election, and(b) at any other time when the office of President of the Legislative Council becomes vacant.(3) The person so chosen shall cease to hold office as President of the Legislative Council immediately before the Legislative Council assembles for the dispatch of business at its first meeting following a periodic Council election, and shall also cease to hold that office:(a) if he ceases to be a Member of the Legislative Council,(b) if he is removed from that office by a vote of the Legislative Council, or(c) if he resigns his office by writing under his hand addressed to the Governor.(4) Until Standing Rules and Orders of the Legislative Council otherwise provide, the President of the Legislative Council shall be chosen in accordance with the procedure for the time being for choosing the President of the Senate of the Parliament of the Commonwealth.(5) The President shall preside at all meetings of the Legislative Council except as may be provided by the Standing Rules and Orders of the Legislative Council.(6) The President or other Member presiding may take part in any debate or discussion which may arise in the Legislative Council.(7) Subject to subsection (5), during the absence from New South Wales of the President, the Chair of Committees of the Legislative Council shall act in his place and shall, for all purposes, whether of this Act or otherwise, have and may exercise and perform all the powers, authorities, duties and functions of the President.(8) Whenever a vacancy occurs in the seat of a Member of the Legislative Council otherwise than by reason of section 22B (1) (c), the President may notify the Governor of the vacancy.
The presence of at least 8 Members of the Legislative Council (in addition to the President or other Member presiding) shall be necessary to constitute a meeting of the Legislative Council for the dispatch of business.
22I Determination of questions
All questions arising in the Legislative Council shall be decided by a majority of the votes of the Members present other than the President or other Member presiding and when the votes are equal the President or other Member presiding shall have a casting vote.
22J Resignation of seats in the Legislative Council
Any Member of the Legislative Council may, by writing under his hand, addressed to the Governor, resign his seat therein, and upon the receipt of the resignation by the Governor, the seat of that Member shall become vacant.