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

Committee Stage

In committee.

(Continued from 9 September 2009. Page 3924.)

Clauses 2 and passed.

Clause 4.

Ms CHAPMAN: Clause 4 proposes to repeal section 10 of the constitution. As outlined in the second reading contributions by myself and other speakers, a significant question has been raised as to why it is necessary to repeal section 10 of the Constitution Act, particularly as it raises the further question of the real motive of the government. Section 10 (which I am sure the minister will be familiar with) provides:

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.

Section 10A contains a number of exceptions to that rule that both houses will have equal power. In this regard the Law Society of South Australia's Constitutional Committee has raised a number of questions. It has observed that the Commonwealth Constitution contains an explicit provision which recognises the general equality of the powers of both houses of the commonwealth parliament, as provided in the last paragraph of section 53.

This is notwithstanding the existence of the deadlock provision, which is contained in section 57 of the Commonwealth Constitution which refers to legislation being passed without the consent of the Senate when it is passed at a joint sitting. During the course of the debate on this matter the Attorney has interjected from time to time to suggest that what he is proposing in respect of deadlocks will be similar to what is provided in the Commonwealth Constitution. We do not agree with that. Nevertheless, if that is his position, it makes it even more puzzling as to why the government feels it necessary to repeal section 10.

The Law Society's committee even raises the question as to what the government's real intentions may be in removing section 10, which is capable of having a further exception if that is what the government wishes and can be provided in section 10A. Secondly, the commonwealth position sits in harmony with a similar clause and a deadlock provision. Thirdly, to date, we have not had any explanation from the government as to why section 10 needs to be repealed. My first question to the minister is: have you received any advice, crown law or otherwise, indicating the necessity to repeal section 10?

The Hon. M.J. ATKINSON: The South Australian upper house is the most powerful upper house of any upper house in the commonwealth. It has a deadlock provision that, where the upper house rejects a bill of the House of Assembly, in order to try to break the deadlock, the House of Assembly has to go to a general election by itself. Not one of them in the upper house—

Ms CHAPMAN: On a point of order, Madam Chair: my question was very specific. Has the Attorney received any advice, including crown law advice, as to whether it is necessary to repeal section 10?

The CHAIR: Member for Bragg, you had considerable liberty in illustrating why you were asking that question. I will allow the Attorney similar liberty in responding.

The Hon. M.J. ATKINSON: Thank you, Madam Chair. That is to say that, where there is a deadlock, with a bill of the House of Assembly rejected by the upper house, the House of Assembly must go to an election to seek a mandate for the bill but the other place does not need to go to the people. If the House of Assembly comes back after the election and moves the bill again, then and only then can it get the equivalent of a double dissolution election. This is a situation which the parliamentary Liberal Party seeks to perpetuate.

The parliamentary Liberal Party is a party that wanted to deny the vote in the upper house until 1975 to most South Australian women. It is a party that wanted to deny the vote for a period to ex-servicemen, university graduates and a whole range of adult South Australians. The Liberal Party wished to deny the vote for the Legislative Council. On top of this undemocratic, 18^th century deadlock provision, it wanted to have pre-Reform Act franchise, and it was only through the struggle of the parliamentary Labor Party led by Donald Allan Dunstan that the Liberal Party was forced into giving all adult Australian citizens in South Australia the right to vote for the other chamber of parliament.

Given that it had to be coerced—that is, the parliamentary Liberal Party—into letting most South Australians vote for the upper house, it is not surprising that we have this struggle to reform the undemocratic provisions. The two houses are not equal. The upper house has a colossal advantage over the lower house—the people's house—where the 47 members are each required to gain a majority, after preferences, before being elected to this chamber.

The government believes that the provision to which the member refers is not an accurate assessment of the constitutional arrangements of South Australia and does not have a place after a proper package of reform bills is passed. As to the question of legal advice, I am astonished by the ignorance of the member for Bragg, or perhaps bad faith, in that not even in this chamber are citizens required to disclose their legal advice and, if they do so, they can be compelled to table the entire legal advice.

Ms Chapman: Talk about a secret government! No wonder we need an ICAC.

The Hon. M.J. ATKINSON: Well, regarding corruption, we all know the member for Bragg's role in Catch Tim.

Ms CHAPMAN: Why is it then, minister, that the commonwealth parliament, which you aspire to replicate here in this bill in respect of deadlock provisions, can coexist with an equality clause that you say cannot operate here and has to be repealed?

The Hon. M.J. ATKINSON: The question is rhetorical.

Mr HANNA: In relation to the government's deadlock provision proposal, I would say that it simply has not made its case. The background to all of this is the fact that there are very few bills which are ever rejected outright, or lost, by the government of the day, whether Liberal or Labor—certainly within the 12 years that I have been in parliament.

With respect to amendments, I understand as a rough sort of estimate that about a third of the bills are the subject of some amendment, but a lot of those are government amendments, because it has a second look at the matter once it goes to the Legislative Council. So, it certainly cannot be called a house of obstruction. It does seem to perform its function as a house of review. The government motivation is to enable the House of Assembly to trump the Legislative Council, thus extending the power of this house. The government simply has not made out its case for the need for change.

The Hon. M.J. ATKINSON: The Rann government aims to allow the people of South Australia, in a double dissolution election, to decide which side in a deadlock is right. We allow the people of South Australia to trump the government in the House of Assembly or to trump the Legislative Council. It is not a question of the government trumping anyone: it is a question of putting the dispute—the deadlock—to the people of South Australia in an election.

The position adopted by the member for Bragg—whose understanding of the constitution can be written on a very small piece of paper—and the member for Mitchell—

Ms Chapman: Under pressure they get nasty.

The Hon. M.J. ATKINSON: Speaking of nastiness, the interjections I have had to endure in the last five minutes, only a fraction of which are recorded on the record, are amazing. All the time I have been on my feet the member for Bragg has been interjecting about personal matters, and I ask her to stop.

The position of the member for Bragg and the member for Mitchell is that, when the upper house refuses to pass a government bill or refuses to pass a government bill other than with amendments unacceptable to the government formed in the assembly, the assembly should go to an election by itself and that the upper house need not do so. It is only after a general election returns the government and the bill is persisted with—then and only then, say the members for Mitchell and Bragg, should a double dissolution election be held. All we want is substantially the same provision as applies in the federal parliament.

Ms Chapman: But they've got a section 10.

The Hon. M.J. ATKINSON: With respect, section 10 is not to the point. The point is—

Ms CHAPMAN: I rise on a point of order, Madam Chair. Section 10 is exactly what we are debating at the moment in committee, that is, the repeal of it. I ask that the Attorney's attention be drawn to what we are debating here.

The CHAIR: There is no point of order. The Attorney.

The Hon. M.J. ATKINSON: I am weary of points of order from the member for Bragg which consist of, 'I am right and the Attorney is wrong.' The government believes in real equality between the houses—not formal equality, real equality—with this qualification: the parliamentary Labor Party believes that the Premier and most of the ministers should be from the House of Assembly. If the member for Bragg and the parliamentary Liberal Party really believed their rhetoric they would have made the Hon. Rob Lucas the leader of the parliamentary Liberal Party years ago, but they accept that there is a kind of primacy among equals of the House of Assembly that the government should be formed in the House of Assembly. I am thankful for that small mercy.

Ms CHAPMAN: I have a further question. Having not identified any legal advice being obtained on the actual repeal, has the Attorney given any consideration (in terms of presenting the proposal that we repeal section 10) as to whether there be an exception provision, that is, the retaining of section 10 but adding to the list of exceptions the deadlock provision; and, if not, why not?

The Hon. M.J. ATKINSON: We could, of course, cross-reference section 10 to section 41 and say, 'Well, the houses are equal except for this and that.' The advice was that it was better and simpler to take it out because the constitution speaks for itself; it does not need the commentary of section 10.

Mr HANNA: I want to clarify that section 10 itself does not explicitly deal with the deadlock provisions. As I understand it, that is the thrust of the member for Bragg's question about why we would need to remove section 10 in order to change the deadlock provisions. Equality with respect to bills would seem to be the same power to accept, amend or reject any particular bill, with the exception of money bills. So it is hard to see how it is a necessary concomitant of replacing the deadlock provisions.

Clause passed.

Clause 5.

Ms CHAPMAN: This is the proposal that the Legislative Council be reduced in number to 16 members. Currently, it is 22 as per section 11 of the Constitution Act. My question to the Attorney-General is: what was the basis upon which it was established that 16 is the desirable number that equates to the financial saving claimed during the second reading debate? Also, will the Attorney outline the actual savings?

The Hon. M.J. ATKINSON: The government believes that, for a state of about 1.5 million people, 69 members of parliament is excessive. It has long been the view of the parliamentary Labor Party that the number can be reduced without any real loss of representation for the South Australian people. If we reduce the term to four years, the result is that the entire other place is elected at each election. If we have 22 members in that house, as we currently do, then the quota to be elected to the other place is halved.

Mr Hanna: So?

The Hon. M.J. ATKINSON: So, we end up with what I would describe as ballot paper and preference malfeasance such as we see in New South Wales with microquotas. If one can think up a snappy name to register on the eve of an election and with a few behind-the-scenes preference deals, someone who is almost entirely unknown and has done no campaigning whatsoever—not to put too fine a point on it, a cad and a bounder—can be elected to the other place on microquota. So, we think halving the quota is not a good idea, but we do believe in electing all the legislative councillors at the same time, so we propose that 16 is the number that would reduce the quota and make it easier for Independents and minor parties to be elected for a four year term but would not reduce it so far as to lead to the abuses that have been recorded in New South Wales.

It is just a matter of judgment: it is just a matter of what is a reasonable quota and what is a reasonable number of members of the other place. We think that 22 members of the upper house are not really required in a state as small as South Australia. There have been fewer members in the past, and we think a modest reduction in the number of members of parliament—and a corresponding increase, I suppose, in the workload of the existing members—is an appropriate gesture to productivity that we should make to the people of South Australia.

If the people of South Australia are given the opportunity to vote on this (which members opposite wish to deny them), I do not know what they will say. However, they have told us repeatedly, I think, that they would like slightly fewer members of parliament and, certainly, they have told us through the Constitutional Convention that they think members of parliament should have four year terms not eight year terms. One may recall, certainly under the old superannuation scheme, that one could be elected for one term as a legislative councillor and qualify for parliamentary superannuation. That is certainly not something I wish to countenance. I think there is a case for this modest reform, and that is why the number was chosen. If the member for Bragg was to make a criticism of it, it might be that it is an even number when it should be an odd number; 15 or 17.

Mr HANNA: The Attorney-General mentioned the Constitutional Convention, and that is very apt. It really was a great innovation of former speaker Peter Lewis to promote a collection of citizens gathered together as a constitutional convention, I think, back in 2003. One of the issues they discussed was the appropriate number of members of parliament. As I recall, the deliberations went like this. When people were initially asked, 'Do we have too many members of parliament or should we have fewer?' the majority answered that we should have fewer members of parliament, because they have a poor reputation, because there are members of parliament who are scallywags, those who are lazy and those who deceive and thus we are all tarred by that brush to some extent.

The interesting thing is that, after a period of education about what members of parliament do and the service they can provide, the numbers turned around and the majority of people, who were better informed, then said that we should not be cutting the number of members of parliament. So, there is a very strong argument for not reducing the number of members of parliament, based on what members of the public want once they are informed about what we do.

Secondly, the issue highlights a problem with this whole referendum proposal: the fact that there are basically four different elements inextricably joined. I would seek to hack away the unsavoury bits and leave the four year term proposal; that is what I am trying to do. It certainly should not be put to the public in its current form. It would be just like John Howard's republic referendum, when the answer was almost guaranteed to be no, because there are unsavoury bits that would make it unattractive to one group or another and thus the good in this bill would be thrown out with it.

It would be pointless wasting our effort and our money putting this to the people as a series of four questions as a package. If they were put as separate questions as to the President's vote, as to the number of members of parliament, as to the four year terms and as to the deadlock provisions, I think the government would have a much stronger case that every aspect of this should be put to the people.

The Hon. M.J. ATKINSON: I thank the member for Mitchell for raising that point, because I have thought long and hard about what he said last time about splitting the bills, and I tried to look at whether it could be done. It can be done, but it would be a God-awful mess, and let me tell you why.

There are three potential problems with the proposal of asking the electorate to vote on four separate bills, each only amending the constitution in a particular way. One is that the putting of multiple bills to the electorate by referendum is unprecedented, and I challenge the member for Mitchell to find an example of it in the state's history. The second is that some of the reform proposals can only succeed in conjunction with the others. The member for Mitchell would be the first to mock me if we got an inconsistent result and say that it was my fault. The third related problem is that none of the four bills could be guaranteed to set out accurately the consequential amendments arising from the primary reform because those consequential amendments would depend on what was voted on.

The constitution stipulates that referendum questions must be in terms of approval or otherwise of a particular bill. Because of the wording of section 10A(3) of the Constitution Act, there must be a bill in place to which the referendum question relates. Putting more than one bill to the vote as a referendum has, I am advised, no Australian precedent, and I challenge the members for Mitchell and Bragg to come up with one.

Mr Hanna: You wouldn't want to be innovative, would you?

The CHAIR: Order!

The Hon. M.J. ATKINSON: The member for Mitchell interjects, 'You wouldn't want to be innovative, would you?' The member for Mitchell would be ecstatic if I did what he asked and an inconsistent answer came back. He would be on radio chiding me about it forever. He would delight in the immolation of the proposal by this means. He makes this proposal only for devilment.

Although there are several examples of multiple proposals being put simultaneously to voters, in each of those cases the proposals have been quite distinct or related and not inconsistent and contained in the same bill. The closest law we have on the topic arises from Boland and Hughes (1988) in which an individual challenged the Hawke government's proposed referendum to extend the right to trial by jury, to extend freedom of religion and to ensure fair terms for compulsory acquisition of property.

The bundle of separate reforms was contained in a single bill. The plaintiff complained that the referendum did not relate to a proposed law, the equivalent of section 10A in the Commonwealth Constitution. Note that the government did not attempt multiple bills but inserted separate unrelated proposals in one bill. The plaintiff's application was rejected by then Chief Justice Mason of the High Court, who said:

In conformity with the doctrine of parliamentary supremacy, there is no relevant limitation or restraint on parliament's capacity to formulate an amendment or amendments to the constitution in the form of one bill if the houses so decide.

Mr Hanna: So you could do it either way.

The CHAIR: Order! This is a very important matter. Can members refrain from interjecting and the Attorney refrain from responding to interjections?

The Hon. M.J. ATKINSON: The chief justice's statement gives some support for the view that multiple proposals may be put to the electorate in a single bill. The fact that multiple bills have never been put before might invite a legal challenge. The Solicitor-General is of the opinion that the risk of a successful legal challenge is low. Any legal challenge could only be made in a court after the bills had passed both houses; that is, after parliament had approved the bills being put to the electorate by referendum. More importantly, some of these reforms are only workable or desirable in particular combinations. At least one of the combinations of possible responses is unworkable—unworkable, irrespective of in which order the questions are asked.

The reform of the deadlock provision can stand alone, but it is also a necessary prerequisite for reducing members' terms. Section 41 of the constitution currently provides that a deadlock is resolved by the dissolution of the Legislative Council. The subsequent election of members is undertaken in a manner that presumes staggered elections in accordance with the current scheme for election of legislative councillors.

Mr Hanna: My amendment fixes that.

The CHAIR: Order!

The Hon. M.J. ATKINSON: The member for Mitchell is the general manager of the universe.

The CHAIR: Order!

The Hon. M.J. ATKINSON: The Crown Solicitor has advised that a four year term—

Ms Chapman: His advice is not secret now.

The CHAIR: Order!

The Hon. M.J. ATKINSON: The Crown Solicitor has advised that a four year term for legislative councillors would be inconsistent with the provisions for resolving a deadlock. The Solicitor-General agrees. Accordingly, the deadlock provision must be passed for the term to be reduced in length. There may be other outcomes that are unworkable or undesirable, such as a change to the President's vote without a reduction in the number of members.

Mr Hanna: Unless you have an odd number.

The Hon. M.J. ATKINSON: Indeed. But it does not matter what changes I make to this bill, all members opposite will not support it—and it will not be supported in the other place.

Ms Chapman: Stop being insulting.

The Hon. M.J. ATKINSON: I am not being insulting. I am just stating a political fact of life.

The CHAIR: Order!

The Hon. M.J. ATKINSON: The problem of dependence of at least one of the reforms on another reform creates an insurmountable barrier to the proposal of putting four separate questions to the electorate by four separate bills. No bill could be guaranteed to be accurate and each would need its own referendum machinery bill.

Further, each of the four bills would be drafted as if it were the only bill to be approved by the electorate. However, if two bills were approved there might be consequential amendments associated with the combination of bills that are dealt with in neither bill. The government would be faced with the prospect of attempting to amend the bill that had been put to the electorate. Each bill for reform needs to be supported by its own referendum machinery bill. If four questions are to be put to referendum, eight bills are required.

Ms CHAPMAN: The Attorney-General has just referred to the legal opinion of the Crown Solicitor, supported, he claims, by the Solicitor-General. I ask him to table the legal opinion that has been obtained.

The CHAIR: Not required.

Ms CHAPMAN: Having established a reduction in the number of members of the Legislative Council to 16 as an arbitrary number (which the government determined in its wisdom was workable and would provide some saving)—having not told us what the savings are, although we have asked—and having had it confirmed (again, by the member for Mitchell), as was traversed in the debates, that the public (if there is any assessment of that being the convention) does not want a reduction, my question is: has the government in its decision to reduce the number of members from 22 to 16 taken into account all the constitutional obligations at the national level?

The Senate comprises 50 per cent of the number of members of the House of Representatives. In New South Wales, 42 compared with 93 represents 45 per cent as a proportion; in Tasmania, 15 compared with 24 is 60 per cent; in Victoria, the upper house at 40 compared with the lower house at 88 is 45 per cent; and in Western Australia, 36 compared with 59 is 61 per cent. Our current proportion is 47 per cent—which at least sits within the parameters of those figures—and to plunge this number to 16 members would be totally inconsistent with other jurisdictions. Was that taken into account when the government decided that 16 was the magical figure?

The Hon. M.J. ATKINSON: Yes.

Clause passed.

Clause 6.

Mr HANNA: Contrary to what the Attorney-General was imputing to those on this side of the committee—meaning those on the opposition benches and the crossbenches—there is some support for some of this proposal. We come now to clauses 6, 7 and 8 which seek to implement a four year term for the upper house. I support that proposal. I think the government would actually be on a winner if it presented just that question to the electorate. Certainly, the community to whom I have spoken in the electorate of Mitchell would testify to that.

The Hon. M.J. Atkinson: I can imagine how extensive that would have been.

The CHAIR: Order!

Mr HANNA: Very, actually. I will be supporting clauses 6, 7 and 8. The Attorney-General has already explained that section 41 will need some amendment in order to have this question as the sole question put to the people.

Ms CHAPMAN: As the government well knows, the opposition has raised some concerns about this proposal, in particular that we have elections every four years for members of the Legislative Council—whether there are 16 or 22 of them. One of the aspects the opposition has raised is that of the weakening of the independence of the Legislative Council as a direct result of such a move. However, as the government seems particularly concerned about the cost of having a number of legislative councillors, my specific question is: did the government do any work or make any inquiries regarding what would be the extra cost of having an election of all members of the Legislative Council every four years rather than every eight years?

Obviously, each of the candidates would come up for re-election every four years, and I ask whether the government has made any inquiries or done any assessment, either itself or through the Electoral Commissioner, regarding what the extra costs would be to hold elections of many more candidates, as well as in terms of the election day itself.

The Hon. M.J. ATKINSON: The suggestion made by the member for Bragg appears to be that it would be more costly for the taxpayer to elect 16 members than 11 members. I disagree with her premise.

Ms CHAPMAN: Is the Attorney telling the committee that no assessment was done on whether or not there would an extra cost to hold the elections every four years for all members?

The Hon. M.J. ATKINSON: I think it takes only a modicum of common sense to realise that the member for Bragg's premise is flawed.

Ms CHAPMAN: My final question is: did the government undertake any research as to what it claims it would save as a result of holding a four yearly election for all members?

The Hon. M.J. ATKINSON: We already have Legislative Council elections every four years.

Clause passed.

Clauses 7 to 10 passed.

Clause 11.

Mr HANNA: I move:

Page 4, lines 10 to 41 and page 5, lines 1 to 24—Delete clause 11 and substitute:

11—Amendment of section 41—Settlement of deadlocks

(1) Section 41(2)(b)—delete paragraph (b)

(2) Section 41(3)—delete 'Whenever there are more seats vacated by members returned for the same district than there are seats to be filled and such members' seats were of unequal tenure the seats of those members the unexpired portions of whose terms are the shorter shall be first filled.'

In the course of debate I have already made it clear that I think the approach should be to put the question to the people of South Australia that there should be four year terms of the upper house, and that there should be no other substantive question put to them. In order for this to be achieved with the government's current bill it would be necessary to amend section 41.

In current section 41 of the constitution there is a reference to Legislative Council members which makes it clear that members would be elected in staggered terms—in other words, it refers to the current eight year term system for the upper house. My amendment is a simple one to delete the relevant paragraphs, and that would mean that the government's provisions pertaining to the four year terms can stand, and be comprehensive and coherent, without jarring with the current provisions of the constitution.

The Hon. M.J. ATKINSON: It is clear that it is in the interests of the member for Mitchell, and his political history, his association with minor parties and his current status as an Independent, that he wants to lower the quota for election for the Legislative Council to micro levels. That would suit his political purpose, and I understand that. It is self-interested, as anything the major parties do in electoral and constitutional matters. I want my view recorded that the amendment is self-serving and self-interested.

The member for Mitchell is a sinner, like the rest of us. He is not the product of the Immaculate Conception. He is not bringing a detached and objective view to this. He has a political interest. I think he was a candidate at one time for Greens' preselection for the upper house. This amendment serves his interests by electing all 22 members of the Legislative Council every four years in one election so that the quota is 4 per cent after preferences.

That serves his interest, and I understand that, but let us not pretend that this is motivated by the common good or the public weal: it is the member for Mitchell's political self-interest, just as much as the provisions advocated by the parliamentary Labor Party and the parliamentary Liberal Party do not run counter to their electoral interests.

I do not think it is in the interests of the state for the quota to be so low for election to the other place. I would lower the quota and make it easier for Independents and micro parties, but I would not lower it to the same extent that the member for Mitchell proposes.

Mr HANNA: First, I observe that the Attorney-General frequently imputes motives of self-interest to everyone who dissents from his point of view, and I wonder whether that says more about him than about the rest of us. Secondly, I have no interest in running for an upper house position. Thirdly, the question is a matter of degree: even if one takes the Attorney-General's comments at face value, what should the quota be?

The real issue is: to what extent do we wish diversity in the upper house? The Attorney-General is concerned that people with whom we have nothing in common would be elected to the upper house because they might get 2 or 3 per cent of the vote and then, with preferences, reach a quota of just over 4 per cent and therefore be elected. We might have people from the Shooters Party, people from religious parties or people from who want to save the Murray, I do not know.

When I was thinking about the issue of a four year term and keeping the same number of upper house members at 22, I did think about this potential problem, if it is a problem at all. There is an answer to it, that is, one which is put in place in a number of democracies whereby there is a minimum threshold which must be achieved in terms of percentage before one can follow through to the final count and therefore be elected to an upper house chamber or a unicameral chamber.

So, I thought that maybe there should be a 2 per cent threshold and that you would have to get at least 2 per cent of the primary vote in order to stay in the count and receive micro party preferences in order to get a quota, if it is as low as just over 4 per cent.

Then I thought: it is democracy and if the people of South Australia want to elect people who are on the fringes of our political discourse, why not? If they are really that dubious, they will not last long. The people will sort them out eventually, so why not let all those flowers bloom? It will all be taken care of in the fullness of time.

The Hon. M.J. Atkinson interjecting:

The CHAIR: Order!

Progress reported; committee to sit again.

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