Constitution (Appropriation and Supply) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 7 June 2016.)

The Hon. M.C. PARNELL (17:03): I will be very brief in my contribution to this bill. I recall that my mother once told me that if you did not have something nice to say perhaps you should not say anything at all. I will not take the advice literally, but I do not need to spend a lot of time on this bill. I think this bill is rubbish. The Greens are not going to vote for it: we are going to vote against it.

In fact, this bill is best described as a solution looking for a problem. The bill proposes a new process for securing the passage of the annual appropriation and supply bills, effectively ruling the Legislative Council out of the equation. The reason I say this is a solution looking for a problem is that—certainly in my understanding of the history of this chamber, and I am very familiar with the last 10 years, other members are familiar with periods that go beyond that, and history tells us that even before that—this is not a chamber that is wont to behave as we have seen, for example, in the United States where, for want of passing a budget, public servants risk not getting paid. It is just not a problem that has existed here in South Australia.

That is not to say that this chamber does not weigh into debates over budgets, budget measures bills and appropriation bills. I think it is appropriate that we do, because there is no greater statement of what a government in a democracy stands for than how it is proposing to spend taxpayers' money.

In my time in this chamber I have certainly seen various budget measures that have been objected to and voted against in this chamber, and I think that that is appropriate in a democracy. What we have not seen—and that is why I do not think this bill is necessary—is opposition or the crossbench or anyone else holding governments to ransom, threatening to shut down the business of government, threatening to not pass supply bills so that public servants cannot get paid. It is simply not part of our political culture.

Certainly, I know the opposition, who, as I understand, are also opposing this bill, have at various stages taken not necessarily consistent positions in relation to budget measures. If there is a budget measure they do not like, they will vote against it. Car park tax is a good example. If there is a budget measure that they are a bit ambivalent about, maybe they will just let it go through, because it is a budget measure. A good example of that would be the changes to the probate fees, where I moved disallowance a while ago. That was via the mechanism of regulation, rather than by legislation, but the principle is the same. It was a part of the government's budget.

With those brief words, I would invite the government to abandon this. If they want to come back to us with a real, live problem that needs a real, live legislative solution, then let them do that. But simply imagining a worst-case scenario that has never happened and is unlikely to happen, and asking us to legislate to completely remove the Legislative Council from the process of appropriation and supply is ludicrous, and the Greens will not be supporting it.

The Hon. T.J. STEPHENS (17:06): I rise today to speak to the Constitution (Appropriation and Supply) Amendment Bill currently before the council. I acknowledge the detailed contribution of my colleague the Hon. Mr Lucas, as he outlined the history of the powers of this place in regard to money bills and clauses. In referring to Combe's volume on responsible government in South Australia, the Hon. Mr Lucas identified that there was originally no limit on the powers of this council to amend or reject money bills and clauses. In acknowledgement of its constitutional position as the upper house and the house to which the government is not responsible, the council resolved to merely suggest any amendments to a money clause or bill for the other place to then adopt or reject. In effect, this retained the power to consider money clauses and bills, whilst also acknowledging the constitutional supremacy of the other place in regard to money matters.

It has been by the grace of the membership of this place in times past that the Compact of 1857 was strictly adhered to until it became a substantive part of the Constitution Act by way of amendment in 1913. The codification of this long-held convention, whilst unnecessary, has nonetheless ensured that it has survived to this day. It is worth noting, also, the Hon. Mr Lucas's references to the negligible number of government bills negatived or laid aside by this place since 1993, at an average of one bill per year. These statistics alone undermine the government's argument for the need for this bill. The premise that this council may misuse the powers it has to reject or amend money bills or clauses—and I emphasise the subjunctivity here—is simply not reason enough to do away with 150 years of parliamentary precedent and, indeed, an amendment to the constitution of the state.

It is plainly obvious that the powers of this place are a frustration to the Attorney-General and also to the Treasurer. The Labor Party as a whole is ideologically bent towards abolition of this place, and as the Hon. Mr Lucas mentioned previously, this goes a long way to explaining their wanton desire to curtail the powers in question. In the introductory second reading contribution, the Minister for Police, as the Attorney's representative, opines that the current provisions of the Constitution Act, which relate to powers of this place in regard to money bills, 'have not operated as originally intended'.

The government has arrived at this opinion because of the council's ability to amend the Appropriation Bill as it sees fit, as opposed to only those specific clauses which relate to money appropriated for a previously authorised purpose. However, as the Hon. Mr Lucas touched on, criticism should be directed at the way the Appropriation Bill and budget process is structured, rather than at this place and its age-old constitutional power.

To clarify, if the government was more transparent in the budget papers as to the specifics of its expenditure and the appropriation of money for specific purposes, it would be much easier to identify which expenditure had been previously authorised and which had not. It is as if the government is projecting a problem of its own creation onto this council, something it does often. The proposed amendment the government offers to its budget obscurity is to completely strip this place of its powers in regard to the Appropriation and Supply Bills. This has no basis in logic for the reasons I have just spelt out, but also because there has been no previous example of this council misusing its power. There was, of course, the defeat of the infamous car park tax in 2014; however, honourable members, and indeed ministers, would be aware that this was effected by a suggested amendment in the other place to the Budget Measures Bill, not the Appropriation Bill.

As the Hon. Mr Lucas pointed out, this constitutional amendment bill, if assented to, would not prevent such an occurrence in the future. This, in my opinion, makes this bill all the more redundant. If this bill were to become law, an absurd situation would arise whereby an appropriation or supply bill would come before this place, yet any suggested amendment, or rejection of the said bills, would be taken as if the council had actually passed it in this place. What an affront to parliamentary practice and a complete legal fiction.

Crudely, I will remind honourable members holding office under the Crown that the Legislative Council existed even before there was a House of Assembly. Bicameralism and the Westminster system go hand in hand. This parliament, as any like it in the Westminster tradition, is a sum of its parts, and any attempt to remove or weaken one of the parts weakens the whole. All honourable members should be mindful of this, as should those in the other place, ministers of the Crown and all constitutional scholars.

This brings me to the final point with regard to the related Referendum (Appropriation and Supply) Bill 2015. This package of bills, including those dealing with deadlocks, which I may speak to at a later hour, involve complex constitutional matters that appear to confuse even some academics, let alone the average South Australian voter. It seems utterly ridiculous and entirely unnecessary to put these gross changes to the South Australian electorate at a referendum, not to mention irresponsible.

I can see that this is necessary in law as the Constitution Act requires changes to the powers of this place to be approved at a referendum. However, my opinion is that this section exists to prevent the abolition of this place by a zealously ideological government. I do not think it was intended for this section to be used to alter the constitutional power, which this place has held for time immemorial, with which the vast majority of South Australians would not be familiar. Unsurprisingly, I do not support any further reading of this bill, and I implore all honourable members to emphatically reject it.

The Hon. A.L. McLACHLAN (17:12): I too rise to speak to the Constitution (Appropriation and Supply) Amendment Bill 2015. My words on this bill apply equally to the Constitution (Deadlocks) Amendment Bill 2015 and to the accompanying referendum bills. I will not be supporting the passage of any of these bills at the second reading. When contemplating the effect of these bills on the workings of our democracy, I could not but think of the witches' lines in the first act of Macbeth:

Fair is foul, and foul is fair:

Hover through the fog and filthy air.

These bills may appear, on a brisk reading, possibly benign and even reasonable; they are neither. They are insidious and they are a cowardly attack on the democratic structures of this state, an insult to its peoples.

These bills were given conceptual birth in the stygian realm of Labor's politburo, where moral confusion reigns. This is a less than subtle attempt to neuter the Legislative Council. Where are the constitutional crises that might generate community discussion for such bills? Where is the evidence that the council consistently frustrates governments? Where is the community engagement about the workings of their constitution and the need for change? Why is reform of the Legislative Council only being considered and not reform of the House of Assembly? So many questions like these roll off the tongue, but there are no answers to these questions, only silence.

These bills are presented to us by a government that has tired of the workings of a democracy and has become so affected by vanity that it believes that its actions should not be considered or challenged by others. These bills reflect a petulance that we have come to expect from this government. The intellectually bereft seed of thought that has germinated into these bills is that the Legislative Council has a subordinate or even an ancillary role to the House of Assembly. This view cannot be supported by the constitutional history of our nation state, nor by reasoned argument. US President Woodrow Wilson stated that:

Liberty has never come from the government. Liberty has always come from the subjects of the government. The history of liberty is a history of resistance. The history of liberty is a history of the limitation of governmental power, not the increase of it.

In the early years of democracy in this state there was a compact of 1857 between this chamber and the other place, largely around the handling of money bills by the parliament. This was the product of the resolution of a dispute between the two houses regarding money bills. It is described by Mr E.G. Blackmore as a 'practical solution' and a compromise, 'the wisdom and moderation of which cannot be sufficiently praised.'

When considering the compact, it is clear that at all times the two houses were equal in every way and that there was no analogy between the council and the House of Lords. It affirmed that in any constitutional discussion in this state, we must always look to the express provision of the written law as it appears in the constitution, and not rely on the practices of the United Kingdom.

The Legislative Council and the House of Assembly are equal. This was and remains a foundation stone of our democracy and is critical to its resilience and success. The only concession by the council to the other place was that they can originate and amend money bills. This is because government is formed in the House of Assembly.

The article by Mr D. Clark entitled, 'The South Australian compact of 1857: the rise, fall and influence of a constitutional compromise' states:

During its 57 year life the compact was testament to the parliamentary virtues of moderation, creativity and compromise, and the overwhelming recognition in both houses that public business had to be forwarded for the sake of the province and its people.

It seems such political goodwill and common purpose to advance the interests of the state is in limited supply these days. Lord Hailsham observed:

Until recently the powers of government within Parliament were largely controlled either by the Opposition or by its own backbenchers. It is now largely in the hands of the government machine, so that the government controls the Parliament and not the Parliament the government. Until recently, debate and argument dominated the parliamentary scene. Now it is the whips and party caucus. More and more, debate is becoming a ritual dance, sometimes interspersed with cat calls.

He goes on to describe modern democracy as an 'elective dictatorship'. This is what these bills are designed to insidiously reinforce. Both the chamber and the other place each has a distinct franchise. Entrenched governments such as the one we have today have a habit of seeking to retain power rather than seeking to widen representation. This chamber is necessary because of the dominance of executive government assisted by an increasingly politicised bureaucracy.

Parliaments must be representative. This chamber offers an opportunity to provide South Australians with representation that goes beyond the simple single-member and single-party constituency. As the parliament stands today, it could be argued that the chamber has greater democratic legitimacy than the House of Assembly. Government was formed in the other place with less than 50 per cent of the vote.

The use of discrete electorates for the election of individual members has produced a majority on the floor of the parliament but it is in excess of the votes secured at the ballot of all electors. I would submit that the Legislative Council will always be more representative than the House of Assembly. Proportional representation more accurately awards seats to parties in proportion to the vote that they received, rather than a single-member electoral system. In other words, the franchise that supports the council will better reflect the principle of one vote, one value.

The consequence of this is that this chamber will enjoy the benefits of minor parties gracing its benches, whose participation in the life of our democracy I welcome. The presence of minor parties helps underpin the modern and important democratic principle of majority rule with minority consensus. The assembly can offer no substantial impediment to government action.

Without an empowered Legislative Council, the only protection for the citizens will be what is disclosed by the media. The media can only rely on their own diligence; they have no formal powers to scrutinise the actions of the executive. This chamber provides an important check and balance in the Westminster system and relies on the division of power. If there is to be an exploration of possible constitutional reform, I believe it should start with the workings of the other place and its election.

In the life of our democracy, the workings of government have rarely been disrupted by a blocking of supply. The right exists only to be exercised in extreme and unforeseeable situations that test the fabric of our democracy. If it is ever used, then the party exercising the power will have to explain their case to the electors. To seek to remove the power is a clear signal from this government that it continues to believe that it should not be subject to scrutiny and not be held to account for its decisions.

In the short time I have served in this place, I have not had the experience of being involved in a deadlock conference. I can only rely on the accounts of other honourable members as well as being informed by the writings on the same. The conference represents the final means for resolving the conflict that exists between the houses. The conference allows the free exchange of personal views to provide the best opportunity for the settlement of disputes, or, as Blackmore eloquently puts it, 'where the maximum of agreement and the limit of concession are ascertained'.

I am particularly drawn to the paper titled 'Why the conference procedure remains the preferred method for resolving disputes between the two houses of the South Australian parliament' written by the Clerk of the House of Assembly, Mr Rick Crump. Mr Crump suggests that:

The private, flexible and informal procedures of the conference provide an ideal consensual forum where true negotiation and compromise can be employed by representative groups of both houses to effect agreement where the exchange of messages has failed.

It seems to me that the procedure will only work where those attending approach the conference in a spirit of goodwill keeping in mind their solemn duty is to advance the interest of the state and its peoples.

If the government is critical of the process then it is criticising itself. What it is implicitly arguing is that it should not have to subject itself to such a process, that its mandate in the other place is enough, that it cannot find within itself to seek compromise. This is arrogance, especially since we still live in the shadow of the last election where the majority of South Australians did not vote for this government. They rule only by virtue of their majority on the floor of the other place. Ironically, the government only has democratic legitimacy because of the very existence of the Legislative Council and its interaction with it, for the council is elected by proportional representation.

The government seeks to replace the deadlock conference procedure with a pathway for resolving disputes between the houses similar to what occurs in the commonwealth parliament. There is no correlation between our democratic structures and the federal ones. The Senate was created as a house of review and to protect the interests of the states. The Legislative Council was created as an equal partner to the House of Assembly.

The number of parliamentarians in this state is dramatically less than in the commonwealth parliament. We are dedicated to realising the ambitions of a relatively smaller number of peoples living on our lands. The federal parliament governs for many states, many peoples and many lands. Our deadlock provisions are fit for purpose having regard to the size of our state and its democratic institutions.

The real motive of the government in attempting to adopt the commonwealth model is to restrain debate and intimidate members of this place to be compliant with its will. The government believes that the threat of a double dissolution will bring the democratic traditions of this house to heel. I believe the debates in this chamber exert a positive impact on policy. They are superior because of the level of expertise required for legislative scrutiny. Mr J.S. Mill stated that:

A majority in a single assembly…easily becomes despotic and overweening, if released from the necessity of considering whether its acts will be concurred in by another constituted authority.

We must reject these bills to ensure that the chamber can continue to work for the peoples of South Australia. As pointed out by the Hon. T. Griffin, a former member of this place, now passed, when referring to the possibility of watering down the powers of the Legislative Council, he said:

It would change the balance of power and would tip the power in favour of a government with fewer protections for the wider community from the potential abuses of power by a ruling majority in the House of Assembly. It would make the government even less subject to scrutiny and less accountable.

The government hides behind the shallow pretext that a functioning democracy needs an effective and efficient government. These bills represent the government's express rejection of the democratic principle of majority rule with minority consent. The Jacobean argument of this government is that two equal representative chambers are not necessary when one is sufficient, an argument that found much favour in the ferment of the French Revolution and its aftermath.

In other words, the sovereignty of the people of South Australia must be expressed in a single institution. They adopt the reasoning of Abbe Sieyes: 'If the second chamber dissents from the first, it is mischievous; if it agrees it is superfluous.' In my view the will of the people cannot be reflected in one institution. Citizens cast their vote and decide their preferences on many issues impacting their lives. We do not live in an homogenous society. We are enriched by diversity.

This chamber and its unfettered future is critical to ensure a consensus model of democracy, one that embraces diversity, not one based on a single majority, on a single view, entrenching narrow and monochromatic vision for this state. Consensus and deliberation are important to ensuring our democratic structures serve all our peoples, not just the plutocracy that is formed in the shadows, made up of intelligentsia and the elite, secure in their high-paid bureaucratic sinecures, free from public sight and challenge, bonded together by a collective hatred of the light in the form of transparency and accountability.

Our electoral system has not delivered a majority rule for some time. An empowered chamber ensures all voices are heard in this state. We must strenuously resist any attempts to diminish the power of this chamber and entrench an elected dictatorship. I do not support the passage of these bills.

Debate adjourned on motion of Hon. J.M. Gazzola.