Could South Australian independent MP Fraser Ellis lose his seat after being found guilty of deception charges?

Could South Australian independent MP Fraser Ellis lose his seat after being found guilty of deception charges?
  • PublishedJuly 6, 2024

For 20 minutes on Monday morning, Fraser Ellis sat in an Adelaide court room waiting patiently as an ill-timed software update to the court’s computers delayed his hearing.

“We’re at 18 per cent,” the clerk updated the room as the minutes ticked by.

“Now 27 per cent.”

After 15 minutes, Magistrate Simon Smart had had enough, requesting a laptop and microphone be brought in so proceedings could get underway.

The delay seemed fitting for a case that has stretched on for years.

But a few minutes later the computers were back online, and Magistrate Smart entered the court and wasted little time.

“I return a verdict of guilty in respect to counts six, 14, 18 and 22, and verdicts of not guilty as to the concern of the balance. I publish my findings,” he said.

Outside court, Ellis was shocked.

 “I showed up today and hoped to be fully acquitted,” he said.

Fraser Ellis speaks to the media outside court.
Fraser Ellis is considering whether he would appeal the verdict.(ABC News: Bethanie Alderson)

In the 66-page judgement, Magistrate Smart detailed why he had dismissed 19 of the 23 charges of deception Ellis faced — namely that he found Ellis was innocent because of “explainable” errors made in claiming a travel allowance for country MPs.

But on four counts, Magistrate Smart found Ellis guilty of deliberately or dishonestly benefiting himself to the sum of $2,738.

In South Australia, the charge of deception becomes a minor indictable offence when the money involved is greater than $2,501.

If Ellis’s crimes were below that threshold, they could possibly be dealt with by the courts as summary offences, which are considered less serious.

That difference of $238, which pushes the offending into the category of minor indictable, could have major implications for Ellis’s political future.

‘An issue for the parliament’

Under South Australia’s constitution, if a member of the House of Assembly is convicted of an indictable offence, their seat becomes vacant, triggering a by-election.

Ellis, the independent MP for the Yorke Peninsula seat of Narungga, won’t know if a conviction has been recorded until sentencing later this year.

Professor John Williams sitting down wearing a black suit and glasses
Professor John Williams says Fraser Ellis’s political future won’t be clear before sentencing.(ABC News Simon Royal)

But even if he is convicted, it’s not clear if he would be kicked out of parliament and expelled from his seat, according to constitutional expert and professor of law at the University of Adelaide, John Williams.

“It really becomes an issue for the parliament,” Professor Williams said.

“Section 43 of the Constitution of South Australia says that whenever a question arises as to a vacancy, it shall be determined and heard by the house, in this case the House of Assembly, as to whether or not there is a vacancy,” he said.

“In one sense, the parliament itself gets to determine whether or not the grounds have been made out that it was an indictable offence and whether he should be expelled.”

The question then becomes would either party or any of the independent MPs, want to try to oust Ellis – an MP who voters elected after he was charged?

Ellis quit the Liberal Party upon being charged in 2021 and was re-elected as independent in the seat of Narungga in 2022.

“The principles here are parliament obviously wants to have a membership which is of good character on one hand but also, they’ve got to not make a situation where a person who has been elected and the people of his district who knew, or may not have known, of these questions have elected him in,” Professor Williams said.

“They’ll have to consider: is this the kind of offence, if it’s upheld, that would warrant someone’s expulsion?”

Professor Williams says he believes there is no clear precedent to this situation in South Australia.

“What normally happens is people resign,” he said.

South Australia's parliament building.
Fraser Ellis was re-elected as the member for Narungga in the 2022 state election.(ABC News: Michael Clements)

The government has responded cautiously to the verdict as it seeks its own legal advice.

“This is complex,” SA Premier Peter Malinauskas said.

“He’s not a member of the Liberal Party. If the Liberal Party decided to embrace Fraser Ellis that would then become a pretty serious question for David Speirs and the Liberal Party.

“But he’s an independent, he’s been elected by the people of Narungga and they get to determine who gets to represent them into the future.

“Whether or not there is by-election between now and the next general election, time will tell, and we’ll have to make sure we assess the legal advice to make sure whatever is meant to be done is done.”

A man in a navy suit looks directly at the camera
David Speirs says he would welcome Fraser Ellis to return to the party if no conviction was recorded.(Che Chorley)

Opposition Leader David Speirs said the door is open for Ellis to return to the Liberal Party if he avoids a conviction.

“He’s a friend, he’s someone I’ve worked closely with,” Mr Speirs said.

“I think if there wasn’t a conviction recorded that would be a clear line in the sand with regard to this situation that he’s faced over recent years.

“So, I would be open to having those conversation if he were.”

For now though, all Ellis, the premier and the opposition leader can do is wait.

Parliament is in recess for the winter break and won’t return until the end of August.

And a conviction won’t come until sentencing, with sentencing submissions to be heard on September 4.

Then there’s Ellis’s right to appeal.


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