Former Liberal MP Sam Duluk could legally stay in Parliament even if found guilty over common assault claim: Legal experts
Former Liberal MP Sam Duluk would be within his rights to stay in parliament even if found guilty of an assault charge stemming from a now infamous Christmas party, lawyers say.
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- Police report Liberal MP Duluk for basic assault
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Besieged former Liberal MP Sam Duluk would almost certainly be legally entitled to continue sitting in State Parliament, even if found guilty over an assault claim being investigated by SA Police, legal experts say.
Police on Friday confirmed Mr Duluk had been reported on a basic assault charge, after SA Best MP Connie Bonaros’ complaint over his alleged actions at a now-infamous Parliament House Christmas Party.
That led to expectations, even among his own supporters that Mr Duluk would be automatically ejected from Parliament if a guilty verdict were made.
However, senior legal sources contacted by The Advertiser say such a finding would appear to fall short of what’s required to trigger a by-election to replace him.
SA’s Constitution Act includes a range of circumstances under which an MP’s seat is declared “vacant”. They include being bankrupt, of “unsound mind” or “convicted of an indictable offence”.
But top lawyers say basic assault is a summary offence, of less severity than an indictable offence, and does not meet the threshold. Basic assault carries a maximum penalty of two years’ prison in SA.
Wentworth Chambers’ Andrew Tokley QC said: “As a basic assault is not an ‘indictable offence’ within the meaning … of the Constitution, that section would not apply so as to lead to a vacancy in the person’s seat in Parliament.”
“In the law, any touching of another person is technically an assault,” he added.
“An indictable offence is a more serious category.”
Constitutional law barrister Stephen McDonald, of Adelaide’s Hanson Chambers, said it was “pretty clear” that basic assault would not trigger automatic expulsion.
Sam Abbott QC, of Bar Chambers, said common assault was “not an indictable offence” and politicians could be guilty of some crimes but not kicked out of Parliament.
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Another eminent legal expert said current allegations had not risen to what would trigger the constitutional clause, while cautioning police inquiries were ongoing.
Mr Duluk has been banished from the Liberal party room while the police action is underway. He has voluntarily suspended his membership of the wider party, but local members this week passed a motion supporting Mr Duluk.
He is currently classified as an independent MP, but not attending Parliament while police continue to investigate.
Some supporters believe he should be able to rejoin the Liberals once the legal proceedings are over and if he shows progress with alcohol counselling Mr Duluk submitted to after apologising for drunken behaviour on the evening.
Mr Marshall has said he expelled Mr Duluk from the partyroom after the police report became public, and having received other allegations.