CONSTITUTION (APPOINTMENTS) BILL

Second Reading

Adjourned debate on second reading.

(Continued from 17 November 2009. Page 3905.)

The Hon. R.D. LAWSON (11:09): I rise to speak on this bill, which was introduced into the parliament only yesterday. It was passed in the House of Assembly yesterday, and it is here in this place today. The government is requesting that this important measure be dealt with today. Opposition members received a briefing on the matter yesterday morning, before parliament sat.

It is indeed regrettable that the government should be seeking to rush this measure through. The reason for the haste is said to be the fact that some other states are making similar amendments. However, the problem this bill seeks to address has been around for many years. It was identified by the former solicitor-general of South Australia, later Justice Selway, who has sadly passed away.

Solicitor-General Selway, as he then was, and other solicitors-general and constitutional law experts had identified a problem that arose because of the enactment, in 1986, of the Australia Act. The Australia Act of the commonwealth parliament and similar state legislation, in the language of the time, repatriated the Australian Constitution to Australia and defined more appropriately the role of the Queen in relation to Australian issues.

Section 7 of the Australia Act provides that all of the powers and functions of the Queen in respect of a state are exercisable only by the governor of that state. Subsection (3) provides for the appointment of the governor, and subsection (4) refers to the exercise of the powers of Her Majesty while Her Majesty is personally present in the state. The only power that is exercisable by Her Majesty when not personally present in the state is the power to appoint the governor.

At the same time as the Australia Act was passed, new Letters Patent were enacted in South Australia. Those Letters Patent establish various offices and bodies, including the Governor, the Executive Council, the Lieutenant-Governor and the Administrator of the State, in the absence of governors and lieutenant-governors, etc. Clause 14 of the Letters Patent provide that the appointment of a lieutenant-governor shall, in the language of the letter, be 'during our pleasure by commission under our signed manual'. The question arises as to whether or not that provision is inconsistent with the provisions of the Letters Patent.

Justice Selway, in an article that was subsequently published, in 2003, in Volume 32 of the Common Law World Review, said:

The consequences have been unfortunate. On 19 May 2000, Her Majesty the Queen of Australia, acting on the advice of her South Australian ministers, appointed the new Lieutenant Governor. There were necessarily doubts whether the appointment had been properly made. As the Letters Patent were made pursuant to the prerogative, an Order in Council was subsequently made by the Governor altering the existing Letters Patent, by providing that future appointments of Lieutenant Governors should be made by the Governor and confirming and validating existing appointments.

The article continues:

Obviously, it would be preferable if the validation could have been achieved by legislation, but that may have raised concerns in respect of the 'republican debate', even though it was relevant to it.

So, what happened, as I mentioned, is that the Letters Patent were made in 1986, following the passage of the Australia Act. In May 2000, those Letters Patent in South Australia were altered.

The point that is addressed in this bill is one that I regard as arguable but not decisive. In other words, it is arguable that lieutenant-governors who were appointed by the Queen and not by the Governor are open to challenge, particularly the acts of those lieutenant-governors whilst acting as lieutenant-governor may be open to challenge. There are many acts that the Governor undertakes and that, in the absence of the Governor, are undertaken by the Lieutenant-Governor. For example, assenting to legislation is an important function, and there is the appointment of ministers and many other administrative and legal acts performed by the Lieutenant-Governor in the absence of the Governor. There has been no challenge, or even suggestion of a challenge, to any of the acts or appointments of our lieutenant-governors on the ground that there is some defect or impediment in their appointment.

The matter was recognised by solicitors-general; it was the subject of discussions at a national level, and we are told that there was an agreement to proceed with uniform legislation in those states where it is required. We are advised that no remedy is required in Queensland, where there is no Lieutenant-Governor appointed, and the parliaments in Victoria, New South Wales and Tasmania have acted to address the situation. In Western Australia there is a constitutional difficulty because the provisions relating to the appointment of a Lieutenant-Governor are contained in the state's constitution, and apparently those provisions cannot be altered without a referendum in that state.

One can readily see that any Western Australian government, of whatever political persuasion, would be reluctant to put the state to the expense of a referendum on such an esoteric point, one which has never arisen in practice and which may arise only at some time in the future. However, we believe it is appropriate to act in an abundance of caution and to agree to the terms of this legislation, which will ensure that actions taken by lieutenant-governors since this issue first arose in 1986 will be validated, and there will be no opportunity for any challenge on the basis of any alleged defect or impediment.

Personally, I deplore the fact that the government has rushed this legislation into parliament. In the second reading explanation it was suggested that the Victorian government jumped the gun, prompting Tasmania to jump it even faster and forcing us into this position of urgency. I well recall when I was a young lawyer acting for former police commissioner Harold Salisbury in a royal commission into his dismissal. That dismissal was made by the Dunstan government and, as Mr Salisbury's counsel, I was looking at the constitution, which at that time contained a provision that all appointments and dismissals of certain officers should be passed by Executive Council and appropriately minuted and countersigned.

I discovered that, in fact, the dismissal of Mr Salisbury had not been countersigned, and advised that to the government law officers, who promptly came to parliament. The ministers of the day, without fully describing the situation and suggesting that the constitutional provision requiring the countersigning would, had it remained, have catastrophic effects on public affairs, in one day made an amendment to our constitution. In a single day it was introduced and passed by both houses, yet both houses were not fully aware of the circumstances; that the bill was being passed for the ulterior purpose of avoiding political embarrassment to the Dunstan government. Accordingly, when the government rushed this bill into the parliament I was, as you would imagine, suspicious that there was again some ulterior motive here—as, indeed, were my colleagues.

I am satisfied that there is no ulterior purpose; what we are addressing is a matter which ought to have been addressed in the ordinary course of a parliamentary session, and we would perhaps have had opportunities for consultation and other constitutional advice. We have not had those opportunities; however, in the circumstances, the opposition, not without making some protest, supports the bill.

The Hon. P. HOLLOWAY (Minister for Mineral Resources Development, Minister for Urban Development and Planning, Minister for Small Business) (11:21): I thank honourable members for their support of the bill and their willingness to deal with this matter this week as a matter of urgency.

I note the comments made by the Hon. Mr Lawson regarding the delays in getting this bill before the parliament. As indicated, there has been debate about whether the provisions of the Australia acts mean that the lieutenant-governors and administrators are to be appointed by the Governor or by Her Majesty. For some time states have been discussing a national approach to this matter, including a possible amendment to the Australia Act, and it was thought prudent that, if legislation were to be introduced, the states should endeavour to introduce the legislation at the same time.

It is accepted that there have been delays in reaching agreement, but these are not the fault of South Australia. Different states had different considerations to take into account. Now that some other states have moved to introduce and pass legislation, it is important that the bill be enacted so as to limit any potential challenges. In noting that some other states have introduced or passed legislation, I take the opportunity to clarify a statement in the second reading report. The report refers to Tasmania having a bill before the parliament. It appears that Tasmania passed its legislation late last week. Again, I thank honourable members for their cooperation in ensuring the passage of this bill so that any legal issues in relation to the appointments of lieutenant-governors are clarified.

Bill read a second time.

Committee Stage

In committee.

Clause 1.

The Hon. R.D. LAWSON: I do not have a copy of this bill. The Legislative Council does not have a copy of this bill. I am using a draft that was an advance used in the House of Assembly, and I think this is a deplorable situation that we should be called upon not only to speak to the second reading on principles but also now being called upon to examine in committee a bill which has not actually formally been laid before us.

The Hon. P. HOLLOWAY: The bill is the same as that passed in the House of Assembly yesterday. Copies of the bill are available for anyone who wishes to peruse it.

The Hon. R.D. LAWSON: I am not sure whether crossbench members have been similarly provided with the bill, but certainly the practice of the Legislative Council is that bills and amendments be placed before members before they are asked to consider or vote upon the provisions of the bill, but presently we have not been formally provided with copies of the bill that passed in the House of Assembly. Can I ask you, Mr Chairman, to indicate when we will be supplied with a copy of the bill?

The Hon. P. HOLLOWAY: I am not responsible for the provision of bills, but obviously it should be circulated. Everyone knows what is in the bill. That much is clear; there are certainly copies of the House of Assembly version. No amendments were moved in the lower house.

The CHAIRMAN: It will not be printed until later today. My advice is that the assembly did not have an official copy when it debated it yesterday or whenever.

The Hon. P. HOLLOWAY: I guess these situations arise when you have these situations to deal with. The background of the bill and the need for it have been well canvassed. There should be no-one in this committee who is not aware of the wording of the bill, even if it is not technically the version of the upper house. If the honourable member really wishes to make an issue of it, I guess we can adjourn the debate and delay it, but I do not believe anyone in this committee could argue that they are not aware of what the bill is or does.

The Hon. S.G. WADE: Given that this bill is correcting a legal technicality, I am wondering whether there is a legal issue that might arise if the council purports to pass a bill that does not exist.

The CHAIRMAN: The bill exists.

The Hon. S.G. WADE: The house has a bill, but we do not have a bill.

The CHAIRMAN: What the House of Assembly passed was not the official bill.

The Hon. P. HOLLOWAY: To save us wasting time, I suggest that progress be reported.

Progress reported; committee to sit again.