CONSTITUTION (REFORM OF LEGISLATIVE COUNCIL AND SETTLEMENT OF DEADLOCKS ON LEGISLATION) AMENDMENT BILL

Second Reading

Adjourned debate on second reading.

(Continued from 16 July 2009. Page 3626.)

Mr HAMILTON-SMITH (Waite) (12:32): I indicate that, although I am speaking first, I am not the lead speaker: the lead speaker will be the member for Bragg. This is a very important bill. The government, as we know, has introduced two bills: the Constitution (Reform of Legislative Council and Settlement of Deadlocks on Legislation) Amendment Bill 2009 and the Referendum (Reform of the Legislative Council and Settlement of Deadlocks on Legislation) Bill 2009, both of which propose a referendum in 2010 before principal changes to current constitutional arrangements.

The parliament must consider each proposal, based on principle, with regard only to what will deliver a fair and more democratic and more robust democracy to the people of South Australia. There can be no suggestion during this debate of self-interest on the part of any party or interest or group of MPs. I think this is a debate we must have, based on what is in the best interests of all South Australians.

There are four principal proposals, and I want to address each one. The first involves a reduction in the number of members of parliament in the Legislative Council from 22 to 16. I believe this is a populist measure, which I doubt will garner much considered support, except as one which purports to indicate that reducing the number of MPs is a good thing; in fact, it is not. The committee system and the role of the Legislative Council as a house of review depends upon the current status of at least 22 members being maintained. In fact, a very important role of the upper house in examining legislation depends upon that number being maintained, at least. I believe that measure should be opposed.

There is a second proposal that the term of office of members of the Legislative Council should be reduced from eight years to four years. This proposal has some merit and is difficult to oppose. The government argues that all MPs should face the people every four years. Why, argues the government, should House of Assembly members face the people every four years while Legislative Council members receive eight year terms? Anything that makes our parliament more responsible to the people, more accountable and more democratic, the bill argues, is a good thing. Were this measure to take effect, it would reduce the quota required for election resulting in greater representation for minor parties and less representation for major parties.

I have actually commissioned some interesting research by the parliamentary library that examines this question. Curiously it shows that in the 1993 landslide, the Liberal government of the day would have had an overwhelming majority in the upper house of 12, with six Labor members, two Democrats, one Grey Power and one Independent. At the last election in 2006, it shows that Labor would have had eight, the Liberals six, the Greens one, Family First two, and the Independent No Pokies Party five.

It is difficult in the extreme to argue that because a major party's representation might be reduced, the measure should not be supported. For a range of reasons, the measure makes sense. It is fair, it is democratic, it empowers the electorate, and it makes sense. Counterarguments, in my personal view, about the benefits of split terms are difficult to substantiate and seem to lack sound research and balance. Arguably, the measure should be supported. Sadly, however, the government has chosen to link it to the earlier measure I mentioned and the two that I am now about to move to, presenting as one package all four proposals, which creates a difficulty for the parliament.

The third proposal, giving the President a deliberative rather than a casting vote, is supported by a very weak case. The argument that the government presents is poor. The inclusion of this measure is curious. The proposal seems to lack any tangible benefit and may involve the President in debate and discussions as a matter of course that might compromise his or her impartiality. The measure should be opposed.

The fourth measure, the deadlock provision, is one of the most compelling of the government's arguments in my view. In essence, the proposition is that arrangements extant in the federal parliament regarding the Senate should apply in South Australia. The double dissolution deadlock provisions in the federal parliament have served Australia well since 1901. The exercise of these provisions causes the Senate to reflect very carefully on its decisions and qualifies the power of veto.

The government's argument will be that this measure retains fulsomely the Legislative Council's role as a house of review and inquiry while qualifying the veto function. Ultimately, this proposal empowers the people of the state to get rid of or retain an obstructive upper house at an election. The measure then provides for a joint sitting should a newly-constituted parliament prove unable to break the deadlock. The government explains the difficulty with the existing constitution and the existing deadlock provisions in its second reading.

This measure does not diminish the Legislative Council's ability to significantly delay and review legislation, to submit it to committee and to cause public scrutiny that ultimately empowers the electorate. It is hard to argue against except on the basis of self-interest. This measure, arguably, should be supported, but again the government has linked this to the other measures as one package.

It is interesting to reflect on the history because there has been much debate in this place about constitutional reform in regard to the upper house. Inaugurated in 1857, the Legislative Council existed to fulfil two purposes: to protect democracy against tyranny by acting as a house of review and to protect property rights against democracy by limiting franchise and membership to male property owners. I have read Dean Jaensch's offering, The Flinders history of South Australia, where he argues that this was done by supporting the council in three elements: firstly, restricted franchise based on property, an electoral system weighted in favour of rural property and a veto power over legislation.

With these three elements, especially the veto power, the house soon found the council was a hostile, formidable institution and parliamentary sessions after 1857 soon descended into quarrels between the houses, conferences of managers and the council using its veto power. These disputes led to the creation of the 'Compact of 1857' in which council agreed to relinquish its rights to amend bills regarding the normal annual expenses of government but was permitted to suggest changes to any other bills of supply.

The greatest reforms of the upper house were during the 1970s under then Labor premier Don Dunstan. Dunstan's motivation was most likely fuelled by witnessing how the council obstructed the implementation of major Labor government policies from 1965 to 1968 by either rejecting the bills outright, making partisan amendments, or just laying them aside. Dunstan was also a firm believer in reforming the council to generate a true house of review, and his broad reforms included the introduction of an optional preferential voting system, a reduction in the sitting age qualification from 30 to 18, and an increase in the membership size of the council.

As extensive as the reforms were, popular disapproval of the upper house has not ceased, particularly driven by certain elements of the media. This may be because, while the Dunstan reforms were extensive, the changes only addressed the principles of democracy and representative government. Dunstan's reforms failed to clearly define, and hence legitimise, the chamber's role and existence in parliament. Consequently, South Australians found themselves in an interesting position: they had inherited a renovated house yet remained unconvinced of its value. The powers of the upper house are, of course, the key issue. These powers are established in various sections of the state Constitution Act 1934, and section 10 provides a broad overview:

Except as provided in the sections of this act relating to money bills, the Legislative Council shall have equal power with the House of Assembly in respect of [all] bills.

Further, section 61 of the act stipulates:

A money bill, or a money clause, shall originate only in the House of Assembly.

Money clause amendments are not permitted under section 62(1); however, the council does have the power, under section 62(1), to suggest amendments to bills of supply. Therefore, the powers of the Legislative Council may be said to equal those of the House of Assembly. Although they cannot introduce or amend money bills, they can suggest amendments or omissions, or even reject these bills.

Although rarely utilised, the possession of this veto power contributes to the popular image and the practicality of the second chamber being, at times, obstructive. This raises the question as to whether the council's power to veto bills hinders its ability to properly review bills. It may be argued that the removal of the veto power would result in the upper house having no other roles or interests, and therefore it would be able to concentrate entirely on the scrutiny of draft legislation.

In The Flinders History of South Australia Howell notes that 'the compact of 1857' resulted in the rejection of many money bills by the upper house which would have passed if members had insisted upon their lawful right to make amendments. This suggests that the veto power was employed as a political device to undermine the authority of the government of the day. It would be politically difficult to prove that hostile councils of today have continued to use the same strategy to spite the executive; however, as a number of MPs note, it s not entirely implausible.

Jan Davis, Clerk of the South Australian Legislative Council, noted in her paper 'The Upper House: a snapshot of the South Australian experience 1975-1998':

…(from 1975 to 1998) only 1.8 per cent of government bills have been rejected outright and this was usually after going through the whole legislative process to a deadlocked conference between the houses. Excluding sessions which have been prorogued owing to the calling of an election and where the government's legislative program had not been completed, only 7.1 per cent of government bills have not passed the upper house. Bills which have been the subject of in-depth consideration have, on balance, benefited from this dual process of investigation and amendment and indeed, in certain circumstances, it has obviously been essential.

As noted by Griffith and Srinivasan, this argument does not take into account how important the defeated bills were to the government's policy program—a very important point. It does not consider where a government might have had to agree to support a minor party proposal for a promise that any aspect of its own program would not gain enough support to pass.

Griffith and Srinivasan also observed that Davis's arguments against the view that the council is an obstructive chamber does not consider 'the more analytically difficult issue of inquiring into the curtailment of the government's legislative program where it thought it could not find sufficient crossbench support in the council'.

We have had the saga over Roxby Downs. We have had the saga over the sale of ETSA. Arguably, we have had governments held back over time from being bold and creative because of this power of veto. When questioned about this particular practice, the Clerk of the Legislative Council expressed doubt that governments would shelve bills that constituted the main part of their manifesto and cited as an example the Liberal Party's repeated attempts to pass the unpopular voluntary voting bill.

Shadow ministers and former shadow cabinet ministers would refute this view and claim that the practice is common. At cabinet meetings, the probability of certain bills passing the upper house is calculated and, if the chances of success are low, bills are laid aside. Of course the power of veto affects government intentions.

While the power to veto may directly block legislation, it has also proved to be successful in indirectly discouraging the introduction of legislation that may conflict with the views of councillors. It is important to realise that, as the Legislative Council houses various minority parties and Independents, each often with different legislative priorities and agenda, the number of bills that fail to be introduced may be quite significant.

From all this, it may be understood that, while the veto power might be used to block bad legislation, it serves as a distraction to the chamber, drawn upon to prevent governments from executing their policies. If a government wants to be bold, if it does not have control of the Legislative Council it is constrained from being visionary.

This is a distraction to the chamber, a tool used to prevent governments from executing their policies. Such activity suggests that the chamber's obstructive image is justified and, in order for public perceptions to change, the council must make concerted efforts to reform itself. It must exchange its veto power for a right to delay, or we must consider the proposals in this bill.

I want to refer briefly to the history of the mother parliament, and those who have attended Westminster conferences would be familiar with it. By a quirk of history, Westminster has, through the House of Lords, given itself a most interesting device. Historically, members of the House of Lords represented the interests of the British aristocracy and often united with members of the House of Commons to check on the powers of the monarch.

The powers of the house were equal to those of the House of Commons, except that the Lords could not initiate or amend bills that imposed taxes on people, nor could it initiate or amend bills granting aid or supply. The house also maintained a right to reject supply bills; however, this was rarely utilised.

The Lords came under a double attack throughout the 1880s, and attempts to reform the chamber were made by the House of Commons, which condemned the hereditary right of a seat, and by Liberal and Conservative peers, who wished to change membership and make the house more effective. These attempts at reform failed, as did the constitutional conference of Liberals and Conservatives in 1910.

It was only when the government introduced the Parliament Act in 1911 that reforms started to take place. The act was predominantly concerned with the powers of the upper house, and it was eventually passed by the Lords in 1911, albeit under the threat of the introduction of more Liberal peers to the chamber to ensure its ratification.

The provisions of the act concerning the powers of the Lords are summarised on the United Kingdom parliamentary website, and they are as follows: bills certified by the Speaker as money bills to receive Royal assent without amendment within one month of being sent from the Commons and at least one month before the end of the session; any other public bills, except those extending the life of the parliament, to become acts of parliament without the consent of the Lords if passed by the Commons in three successive sessions, with two years between the first reading and the final passing in the Commons and, if sent up to the Lords, at least one month before the end of each of the three sessions; and finally, the maximum duration of a parliament reduced from seven to five years.

These would have been alternative amendments that could have been made to our constitutional arrangements. Although officially an important act, the Parliament Act of 1911 was deemed only a temporary measure, as the phrasing of the provisions was seen to be unclear.

Consequently, in 1917 Viscount Bryce chaired a conference, comprising 15 appointed members from both houses, to think about the composition and specific powers of a reformed second chamber.

Although the proposals in the Bryce report 1918 were reported to parliament one year after the conference, it failed to be implemented due to the war. The proposals of the Bryce report concerned the upper house powers, including (and worth noting), first, full powers of non-financial legislation, but no power to amend or reject purely financial legislation determined by a small joint standing committee of both houses; and differences between the two houses to be resolved by a 'free conference committee of up to 30 members of each house'. In certain circumstances, a bill agreed to by the Commons and by an adequate majority of the free conference might become law without the agreement of the second chamber.

The history of the mother parliament's determinations is worth scrutiny in the context of this debate. Under the leadership of Tony Blair, the British Labour Party introduced the House of Lords Act 1999, which abolished the automatic right of hereditary peers to sit in the House of Lords and reduced the membership size of the hereditary peers. Curiously, by dint of history, Westminster has delivered itself a non-elected chamber, where some of the best minds in the country are able to contribute to legislation without necessarily blocking the government of the day from governing.

In summary, I find some of the proposals in this bill worth supporting but, because the government has chosen to link all four measures together, it is difficult to support. I will vote in accordance with the wishes of the Liberal parliamentary party, and my vote will go accordingly; but it would have been an interesting debate, if the government was serious about this measure, had it decided to break it up into the four component parts so that we could address each part bit by bit step by step.

It is very clear to MPs and political observers that South Australia's present constitutional arrangements inadequately deal with deadlocks between the houses. There needs to be change. If the government is serious about this, it needs to look at how it is handling the measure and adopt a different approach. The commonwealth constitutional arrangements are superior and well tested. I think there are aspects of the bill that are worth supporting, but unless the bill is broken up into its respective parts it is going to be a difficult exercise.

Time expired.

Ms CHAPMAN (Bragg) (12:52): I indicate that I will be the lead speaker on this bill, on behalf of the opposition. This bill, the Constitution (Reform of Legislative Council and Settlement of Deadlocks on Legislation) Amendment Bill, will be followed by the Referendum (Reform of Legislative Council and Settlement of Deadlocks on Legislation) Bill. One, in substance, addresses the proposed implementation of the reforms to the Legislative Council and the operation thereof, and the second facilitates the accommodation of the constitutional requirement in the event that reforms are to be proposed for the people of South Australia's consideration. I propose to deal with the substance of both measures in the course of my contribution

These bills were introduced by the Attorney-General on 16 July 2009. I noted, when reading his contribution, that the government first announced, through the Premier's media release on 24 November 2005 (on which date he also made a ministerial statement in this parliament), an important initiative that his government was going to undertake. On that day he said that he considered that it was important that there was reform in the Legislative Council, but that the people of South Australia needed to have the opportunity to consider a number of questions. He outlined in his contribution to this house a time when he claimed:

...the 22 members of the Legislative Council, who have no defined electorates and no defined electorate demands, spent their wealth of time and resources to research issues, examine legislation and consider its consequences on our community.

Later he went on to say:

The place is now intent on holding up legislation by claiming it is not ready to deal with it, referring issues off to select committees which should ordinarily be debated in the house and amending legislation to make it unworkable.

I indicate that, whilst I will take issue with a number of the claims of the Premier in relation to that statement, I note that that appears to be the motive upon which he proposes that his government would propose and effect Legislative Council reform. Later in that contribution he goes on to say:

It is a decision for the people of this state. I want to be able to put the choice—the options—to the people of South Australia so that they have more than four years to consider, discuss and debate the issues and form a view before the 2010 referendum to be held in conjunction with the state election.

He goes further:

Let the people decide. It is their parliament, and it is their constitution. Let the people decide. They can choose to keep the upper house, they can choose to get rid of it or they can choose to reduce the number of members of parliament.

He goes on:

Apart from abolition, or no change at all, we want to put to the people an option for reforming the upper house. Somehow, I think the reform option could be quite popular. These reforms would include:

reducing the terms for its members from the ludicrous eight year terms down to four year terms;

reducing the number of members, say, from 22 MPs to 16, or maybe more;

reducing its ability to indefinitely delay legislation that has passed the lower house.

Near the conclusion of his contribution he said:

No-one should be afraid of the will of the people. This is not a job for us: it is a job for the people of this state to decide whether or not they want an upper house or whether they would like to see it reformed and reduce the number of members of parliament.

Well, how things have changed! In the next eight months that elapsed, we then had the Attorney-General introducing bills which were only a shade of those high and lofty promises and commitments to South Australians that they would have an opportunity to consider a choice: whether they have a Legislative Council at all; whether they continue to have one; whether it be abolished as such; and whether it be reformed; and that it was their choice. Now, of course, we have a very different situation.

I think it is important for members to appreciate as we embark on the debate of the matters that are now before us what is the real motivation of the government, and that was made abundantly clear in the initial scathing and critical statements of the Legislative Council made by the Premier in that announcement to this parliament back on 24 November 2005.

That is where the truth lies as to the real intention and objective of the government, and that included the clear desire by the Australian Labor Party to get rid of the Legislative Council altogether and then to dress it up with the pretence that it would give the people of South Australia some real say in relation to both that and/or reform. Well, we now have the bills and the Attorney-General's second reading explanation of the reforms we are to have, and I will come to the question of whether they should be dealt with individually or as a package in due course. I seek leave to continue my remarks.

Leave granted; debate adjourned.

[Sitting suspended from 13:00 to 14:00]