Constitution (Deadlocks) Amendment Bill

Second Reading

The Hon. P. MALINAUSKAS (Minister for Police, Minister for Correctional Services, Minister for Emergency Services, Minister for Road Safety) (19:49): I move:

That this bill be now read a second time.

I seek leave to have the second reading and explanation of clauses inserted in Hansard without my reading it.

Leave granted.

This Bill proposes to amend the Constitution Act 1934 ('Constitution Act') to insert a new mechanism to resolve persistent disagreements between the Legislative Council and the House of Assembly.

Section 41 of the Constitution Act currently provides that where a Bill has been passed by an absolute majority of the House of Assembly but rejected by the Legislative Council and, after a general election, the same or a similar Bill is then passed by an absolute majority of the House of Assembly but rejected by the Legislative Council, the Governor may either dissolve the Parliament or issue writs for the election of two additional members for each Council district.

Section 41 has never been used. The most likely reason for this is that it only operates in relation to Bills that have been in dispute for more than one term of a government. Further, the deadlock mechanism does not guarantee the resolution of a deadlock. This is because, since the introduction of a single state-wide electorate in 1973, the option to elect two additional members to the Legislative Council is unlikely to resolve a deadlock. In addition, it is also not necessarily the case that a dissolution election would return a Parliament that is amenable to the Bill or Bills that triggered the double dissolution.

This leaves disagreements between the Houses of Parliament in South Australia to be dealt with by way of ordinary negotiations in the course of the parliamentary process, and the Conference of Managers process, provided for in the Standing Orders.

This Bill provides another option. The Bill deletes the current section 41 of the Constitution Act, and replaces it with a new deadlock mechanism, which is modelled on the deadlock mechanism in section 57 of the Commonwealth Constitution. The new deadlock mechanism includes a double dissolution and a joint sitting. It is intended that the new deadlock mechanism will be a workable option in the event of an ongoing and persistent deadlock between the Houses of Parliament.

Proposed new section 41 of the Constitution Act provides that the Governor may call a double dissolution to resolve a deadlock where the following two processes have occurred.

First, the House of Assembly has passed a Bill (referred to as the 'first Bill'), and the Legislative Council has:

failed to pass the first Bill within 15 sitting days after its transmission to the Legislative Council; or

rejected the first Bill; or

passed the first Bill with amendments to which the House of Assembly does not agree.

Second, the House of Assembly has introduced a Bill that is the same as the first Bill, and passed that Bill with amendments (if any) within the scope of proposed new section 41(6) of the Constitution Act. This is referred to as the 'second Bill'. The Legislative Council has then:

failed to pass the second Bill within 9 sitting days after it is transmitted to the Legislative Council; or

rejected the second Bill; or

passed the second Bill with amendments to which the House of Assembly does not agree.

At a double dissolution election, all members of the House of Assembly and the Legislative Council would vacate their seats. Sections 14 and 15 of the Constitution Act set out the process for determining which members of the Legislative Council would then retire at the next general election.

After a double dissolution, where the House of Assembly introduces a Bill that is the same as the second Bill, and passes that Bill with amendments (if any) within the scope of proposed new section 41(7) of the Constitution Act, then it would be referred to as the 'third Bill' for the purposes of new section 41. If the Legislative Council then:

fails to pass the third Bill within 9 sitting days after it is transmitted to the Legislative Council; or

rejects the third Bill; or

passes the third Bill with amendments to which the House of Assembly does not agree,

the Governor may convene a joint sitting of the members of the Legislative Council and House of Assembly.

The joint sitting may consider the third Bill and any amendments that have been made to the third Bill by one House and not agreed to by the other (referred to 'prescribed amendments'). If the third Bill is affirmed by an absolute majority of the total number of members of the Legislative Council and the House of Assembly at the joint sitting, then it will be taken to have passed both Houses of Parliament, along with any prescribed amendments that are also affirmed by an absolute majority of the total number of members of the Legislative Council and the House of Assembly at the joint sitting. The third Bill can then be presented to the Governor for assent, unless it is a Bill that would in the ordinary course require approval at a referendum prior to assent (in which case that would need to occur).

As with the deadlock mechanism in the Commonwealth Constitution, it is intended that a double dissolution could be triggered by more than one Bill, and that more than one Bill could be considered at a joint sitting.

Subsections (6) and (7) of the proposed new section 41 set out the types of amendments that the House of Assembly can make to a second Bill and third Bill. Consistent with the position in section 57 of the Commonwealth Constitution, the House of Assembly can:

make amendments to the second Bill that are certified by the Speaker as being consistent with amendments made to, or agreed in relation to, the first Bill by the Legislative Council; and

make amendments to the third Bill that are certified by the Speaker as being consistent with amendments made to, or agreed in relation to, the second Bill by the Legislative Council.

This ensures that the deadlock mechanism provides scope for changes to be made to the second and third Bills to reflect any compromise, or agreements reached along the way, between the Houses.

In addition, the House of Assembly can make amendments to the second and third Bill which are certified by the Speaker to be necessary owing to the time has elapsed since the date on which the first or second Bill passed the House of Assembly. This would allow, for example, a commencement date in a second Bill or third Bill to be amended where the commencement date had already passed or was no longer appropriate having regard to the passage of time.

As well as the amendments to section 41 of the Constitution Act, the Bill makes a minor amendment to section 57 of the Constitution Act to make clear that section 57 applies to a Bill for the purposes of section 41. Where a Bill is restored to the Notice Paper after prorogation then, for the purposes of section 41, the Bill will be treated as if no prorogation had occurred. This ensures that the process for settlement of deadlocks is not disrupted by the prorogation of Parliament.

If passed by the Parliament, the Bill will need to be approved at a referendum. As such, the commencement of this Bill is subject to the operation of the Referendum (Deadlocks) Act 2015.

For too long the Constitution Act has been without an effective deadlock mechanism. It is hoped that the introduction of the deadlock mechanism that includes a joint sitting would provide an effective deadlock mechanism in the event of a persistent disagreement between the Houses of Parliament, to complement the Conference of Managers process that is currently utilised by the South Australian Parliament.

I commend the Bill to Members.

Explanation of Clauses

Part 1—Preliminary

1—Short title

This clause is formal.

2—Commencement and operation

The measure will need to be submitted to a referendum under the proposed Referendum (Deadlocks) Act 2009.

3—Amendment provisions

This clause is formal.

Part 2—Amendment of Constitution Act 1934

4—Substitution of section 41

This clause sets out a new scheme with respect to the settlement of deadlocks between the House of Assembly and the Legislative Council. It is based on the scheme under section 57 of the Commonwealth of Australia Constitution Act. Essentially, the scheme provides for a double-dissolution trigger if a particular Bill is rejected on 2 occasions by the Legislative Council, taking into account some specified time periods and other related requirements. If, after a double-dissolution election, the Bill is rejected on a third occasion, the scheme provides for a joint sitting. If the joint sitting affirms the Bill (by an absolute majority), the Bill (with any amendments affirmed by an absolute majority of the joint sitting) is deemed to have passed Parliament and will be presented to the Governor for assent.

5—Amendment of section 57—Restoration of lapsed Bills

This clause is related to the operation of proposed section 41.

Schedule 1—Transitional provisions

1—Powers of Legislative Council in relation to Bills

The new deadlock provisions will only apply in relation to Bills introduced into the Parliament after the commencement of this measure.

Debate adjourned on motion of Hon. D.W. Ridgway.