Bills

Constitution (One Vote One Value) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 14 November 2017.)

The Hon. P. MALINAUSKAS (Minister for Health, Minister for Mental Health and Substance Abuse) (15:47): I thank all members for their contributions to this important legislation. I look forward to further discussing the bill in depth during the committee stage.

Bill read a second time.

Committee Stage

In committee.

Clause 1.

The Hon. R.I. LUCAS: I want to speak at clause 1 of this because we are in an extraordinary set of circumstances and I think we need to understand firstly what is being proposed or what is possibly about to occur and where we are actually up to, and what the legal position is, so that we actually understand where we are up to. There is an amendment that has just been tabled by the Minister for Employment, which I have never seen before, so the Liberal Party have had no discussion or debate about this particular amendment. It has been dropped on the table and it has clearly been discussed with some other members of the chamber and our party has not seen it. We are not aware of what the amendment does or how it fits with the existing bill and the amendments of the Hon. Mr Parnell, for example.

I think it is going to be important to establish firstly what the legal position is in relation to these particular provisions and firstly what the government's intentions are. There are two bills, clearly: there is this one and then there is the attached referendum bill. In this particular one, we have had the discussion and the debate. Members are aware of the Liberal Party's position, which is strong opposition to the intentions of the government to, in essence, remove the fairness provisions of the constitution. My understanding from public statements that have been made by other members was that they, too, objected to that and were not supporting this particular bill and the attached bill, and that it would not be proceeding.

My question is: what is the government's position in relation to this new amendment, which is section 83A? Is it proposing that the Constitution (One Vote One Value) Amendment Bill as it stands, together with the proposed addition, is what they are seeking to have passed by the Legislative Council?

The Hon. P. MALINAUSKAS: I will attempt to answer the Hon. Mr Lucas's question concisely. The amendment that the government has filed in respect to 83A principally does what it says and I think it is rather self-explanatory. It requires the government of the next parliament to conduct a review into section 83 of the act in whatever form the parliament passes, if indeed it does pass an alternative form of it. That is a new amendment. In the event that the council and then, of course, subsequently the House of Assembly passes an amended form of section 83, then this would require a review of that clause post the next election, and I believe in the first 12 months after that election.

The Hon. R.I. LUCAS: Yes, but my question is: is it the government's intention, should it get the numbers in the Legislative Council and in the parliament, that the whole of the current one vote one value bill, with the addition of 83A, pass?

The Hon. P. MALINAUSKAS: I think the council is yet to determine the format in which the respective bill will pass, and that will be determined as we go through the committee stage.

The Hon. R.I. Lucas: But I am asking what your position is.

The Hon. P. MALINAUSKAS: The government's position will become clear as we work through the respective clauses. We are going to work through the clauses methodically and the government will annunciate its position on each clause.

The Hon. R.I. LUCAS: I do not wish to be unreasonable in relation to this, but this amendment has only just been dropped on the table. We have had no discussion in the Liberal Party at all and we are trying to understand what the government is actually proposing, and I think we need to know what the legal position is.

The Hon. P. Malinauskas interjecting:

The Hon. R.I. LUCAS: Sure; that is why I asked the question and so far I have not had the answer. My quick legal advice that I have in terms of quick discussion with parliamentary counsel is that if the Legislative Council was to remove section 77, which is the thing that we have been saying we are opposed to, and just leaves in there the review, then, in essence, what the parliament would be saying is, 'We are not going to change anything in relation to the constitution or go to a referendum at this stage. All we're requiring is that, after the next election, there should be a review of section 83.'

But for that to occur, if that was the set of circumstances that the government and members wanted—that is, nothing happens now and there is no referendum at the next election and no decision taken to get rid of the fairness clause or whatever it might happen to be—all we are saying is that there should be a review of section 83 after the next election by whoever is in government and the argument could be had then. For that to occur, if that is the set of circumstances, then my quick understanding is that clause 4, which makes the changes to section 77, would need to be deleted from this bill to leave existing 77 there.

You would also have to change or delete clause 2 which essentially says that this section does not commence until the Referendum (One Vote One Value) Bill goes through. If that is deleted, it would just be like a normal bill: it would be saying that there shall be a review after the next election as per new section 83A and it would come into operation on assent. Unless you delete clause 2, it would never come into operation unless you actually had a referendum. That is the quick legal advice I have in relation to the situation.

If we leave in section 77 and pass a referendum bill, then we have to have a referendum, which is what I oppose and which, I understand, a number of the minor parties have opposed. They have said, 'We're not supporting a referendum at this election.' What I gather might be being discussed is that we will not have a referendum at this election but we do want to have a review of section 83 after the next election, but for that to occur, a number of other things have to be changed in this bill. Otherwise, under the guise of having a review, the government might be trying to sneak through a referendum as well as having a review. They would attempt to change the law now by having a referendum at the next election and also have a review after the election.

The Hon. P. Malinauskas interjecting:

The Hon. R.I. LUCAS: Well, that was the question I was asking.

The Hon. P. MALINAUSKAS: I have greater clarity about the context of the Hon. Mr Lucas's question. Maybe if I enunciate the government's position on a range of things, it will give the answer to the Hon. Mr Lucas's question. The government's intention is to support the Hon. Mr Parnell's amendments to the bill and then remove the government's proposition. I will go through it clause by clause; we will naturally be dealing with these clauses in any event.

The government will be supporting clause 1. The government will oppose the existing clause 2, support clause 3 and oppose clause 4. The government will support the Hon. Mr Parnell in his amendments. Then the review of what will remain of the bill and the shape the bill would take in its amended form—assuming the Hon. Mr Parnell's version of the bill receives support in the House of Assembly—will take place post the election, but within 12 months of it.

Let me distil that down more concisely. The government is supporting the Hon. Mr Parnell's amendments and withdrawing its position on the bill, which will then necessarily mean that there is no referendum at all and then we will have a review of that provision post the election. In opposing clause 2 of the bill, that will in turn render the referendum bill redundant, and as a result, the government will not be proceeding with the referendum bill.

The Hon. R.I. LUCAS: My question to the minister is that if, under the proposed amendment—there has obviously been some discussion—that is, we have a review of section 83, does not the Hon. Mr Parnell's amendment actually delete the provisions of section 83? So, on the one hand we are saying, 'Let's review section 83,' but we are saying, 'Let's get rid of the fairness clause and let's get rid of 83,' before we actually review it.

Section 83 of the Constitution Act: the Hon. Mr Parnell's amendments, which the minister is indicating that he is going to support, are that section 83(1) and 83(3) of the constitution be deleted. Section 83(1) states:

In making an electoral redistribution the Commission must ensure, as far as practicable, that the electoral redistribution is fair to prospective candidates and groups of candidates so that, if candidates of a particular group attract more than 50 per cent of the popular vote…they will be elected…

That is the fairness provision that has been inserted.

The Hon. M.C. Parnell: It's not fair.

The Hon. R.I. LUCAS: That is the Hon. Mr Parnell's argument: that is not fair. What I am saying is that the parliament determined that it was the fairness provision; the Hon. Mr Parnell disagrees with it, but if we are going to have a review of section 83, how do you have a review of that section when, at the same time, you have already deleted the key provisions?

The Hon. M.C. Parnell: You review what is left.

The Hon. R.I. LUCAS: That is right, you review what is left. So, you get rid of the bits that the Hon. Mr Parnell and the Labor Party do not like, which is the fairness provision—

The Hon. M.C. Parnell: So-called.

The Hon. R.I. LUCAS: Yes, the Hon. Mr Parnell says the 'so-called' fairness provision, but they were inserted by the Labor Party. A Labor Party inserted those fairness provisions, supported by Independents and the Liberal Party at the time, in the constitution. They were supported by a referendum. My question (that is going to come back to the minister in a tick) is: if something has to be inserted by a referendum, how do you, without a referendum, actually remove them?

The minister is saying that he is not going to have a referendum. All the legal advice was that to put these fairness provisions in we had to take them to a referendum. An overwhelming majority of South Australians supported a change to the constitution and, by way of referendum, they voted for these particular provisions and put them in there. Now what is being proposed is a dirty deal done between the Labor Party and the Greens, who do not like the fairness provision. They are purporting to say that what they are going to do is remove the fairness provision without going to a vote of the people and without going to a referendum in relation to this.

If you are going to review section 83, which is the new amendment that is being canvassed—83A, which says that after the election, after 12 months or whatever it is, there shall be a review of section 83—then you should be reviewing all of the existing section 83. That would seem to be what some people might be attracted to; that is, let's review the whole of 83. But what is being proposed here is: we will review 83, but what is left of 83. We will gut 83 by taking out the fairness provision, which was put in there, and we will also take out subclause (3), which is a related provision. All that is left of 83 is the original provisions which used to be there, which is community of interest and topography and population—

The Hon. P. Malinauskas: All the usual things that determine where boundaries go.

The Hon. R.I. LUCAS: Yes; well, part of it and part that the Labor Party supported and added to it, the fairness provision. This was your doing. It was your party that put the fairness provision into the constitution. We supported it, the parliament supported it and, ultimately, the people supported those particular provisions.

What I am saying here is that if what is attracting some people—and I am specifically speaking to crossbenchers here—is to have a review of section 83, then have a review of section 83, not gut section 83, whether that is legal or not, given that what has been proposed is that we do not go to a referendum, and the minister is going to respond to that in a moment. What is being proposed as a package here is: we will take out the fairness provision, we will take out the related provision of 83(3) and then all that is going to be reviewed will be what is left, which has nothing to do with fairness. So, I think some people are being sold a pup here, and what is happening here is that right at the death knell—

The PRESIDENT: The Hon. Mr Lucas should speak through the chair, please.

The Hon. R.I. LUCAS: Right at the death knell an amendment is dropped on the table. We have been given assurances in relation to the attitude of various people to this particular bill in relation to where it was going. Right at the death knell an amendment is dropped on the table, which we have not had a chance to discuss, and I don't think people understand what this actually means. We will be left in a position, if not of a legal quandary, in terms of whether or not what we are being asked to do right at the very end is actually constitutionally valid.

If we are wanting to have this particular debate, then adjourn the house and come back next week in the optional week and have the debate, so that we can take legal advice.

The Hon. P. Malinauskas: This has been on the table—

The Hon. R.I. LUCAS: Not this amendment; this amendment has not been on the table.

The Hon. P. Malinauskas: It's a vote against the review.

The Hon. R.I. LUCAS: Yes, but what is also going to happen is that you are also going to be agreeing to taking out the fairness provisions, and whether or not there will be a referendum.

The Hon. P. Malinauskas interjecting:

The PRESIDENT: Order! Let the Hon. Mr Lucas finish.

The Hon. R.I. LUCAS: This amendment was not on the table—

The Hon. P. Malinauskas: It's been on the table for two weeks.

The Hon. R.I. LUCAS: Until—in the last hour.

The Hon. P. Malinauskas: No, that's not right.

The Hon. R.I. LUCAS: This amendment about the review—

The Hon. P. Malinauskas: Well, vote against the review.

The PRESIDENT: Will the minister please desist.

The Hon. R.I. LUCAS: This amendment about the review was not on the table until the last hour. Through public statements that members had made—the crossbenches and the Liberal Party—the position of a majority of members publicly had been that these bills were not going to be supported, and that was the public position, and that was the understanding I had from assurances I had been given from a number of members in relation to this particular issue.

We have not discussed this review provision in the party room. We have not had a chance to discuss whether or not it actually fits with the other provisions, what the legal position is in relation to the rest of the bill, whether or not you can actually take two provisions out of section 83 of the constitution without going to a referendum, when the only way they were put in was the legal advice that was provided to the Labor government at the time, and supported by the parliament at the time, that the only way you could put these provisions into the constitution was by way of a referendum.

The Hon. P. Malinauskas: Well, let's respond to them.

The Hon. R.I. LUCAS: Well, I would be interested to hear the legal advice.

The Hon. M.C. PARNELL: Just for the record, the Greens' position in relation to the so-called fairness clause in section 83(1) and 83(3) has been that we have never supported them, ever. These provisions ignore the crossbench. When I say 'crossbench', the growing crossbench. These provisions completely ignore the 30 or more per cent of South Australians who do not support either of the major parties. The Hon. Rob Lucas might say, 'Well, that's not true, because subsection (3) gives the Electoral Boundaries Commission the ability to try to guess who might be on the crossbench, to guess the proportion of the vote they might get and then to guess which side they might lean to to form a government.

It is an absurd provision, it is universally regarded as absurd. The Electoral Boundaries Commission has never, to my knowledge, actually applied it, because they can't, because it's impossible, so it actually makes sense to get rid of it. There has been a bit of commentary in the media just in recent days, and one that I thought was particularly important was the contribution of the architect of these clauses, Malcolm Mackerras. I will just read a couple of sentences from an InDaily article from a few days ago:

The fairness clause, a uniquely South Australian oddity, has been contentious for many years, with expert witnesses to successive boundaries commissions insisting it was unworkable in practice. The psephologist who initially proposed the clause, University of Sydney political scientist, Malcolm Mackerras, told InDaily last year it had been an 'abject failure' and had proved to be a 'silly clause of which I am not proud'.

Mr Mackerras went on:

I must confess I hesitate to claim it among my achievements because one doesn't like to claim such an achievement that has been such a failure.

That was first reported last year in the media. Like I say, it has been the Greens' position forever and so I think we have been as transparent as one can be in saying we do not like these provisions. I will keep on calling it the so-called fairness clause because it is not fair to those South Australians who do not support the main parties. It should be no surprise to members that I have been on a crusade for 12 years to try to end two-party thinking in relation to politics. I cannot think of how many amendments I have moved to the Parliamentary Committees Act and other bits of legislation that are designed to take out references to 'the group supported by the Leader of the Opposition' or 'the group supported by the government'. Those provisions are insulting to those of us who are on the crossbench.

The Hon. Rob Lucas in seeking to work out where this bill might go has—and the minister as well has correctly intimated that the government has agreed with the Greens and I think that is the right call. I mean, I would say that, wouldn't I? It is my amendment but they have agreed with me. The consequential changes that are required relate to existing clause 2 and clause 4. I had thought clause 4 could sit in parallel but it is neither here nor there. The main insult to the people of South Australia is section 83(1) and (3) of the constitution so we are getting rid of those. The kicker, I guess, is this idea of the referendum and what provisions require a referendum and what provisions do not require a referendum.

When the member asked me before, I said that my view had always been—and I will confess here to not having done primary legal research—that if you messed with section 83, it had to go to a constitution.

An honourable member interjecting:

The Hon. M.C. PARNELL: A referendum, sorry. I have now been told that that might not be the case.

The Hon. R.I. Lucas: Who has told you that?

The Hon. M.C. PARNELL: In my discussions with the minister.

The Hon. R.I. Lucas: With the minister?

The Hon. M.C. PARNELL: You can ask the minister directly whether that it is the case.

The CHAIR: Order! The Hon. Mr Parnell, you have the call.

The Hon. M.C. PARNELL: My position was that I assumed, without checking, that it needed to be. I think the risk we run here is not terribly high from the Liberal Party's point of view. If it turns out that that is the wrong way to approach it, and if we do change section 83 and it turns out that it did require a referendum, then section 83 has not been changed, and you have lost nothing and the referendum clause has already gone, status quo, you should be happy.

If this legal thinking that maybe a referendum is not required turns out to be wrong you have nothing to lose. If it turns out to be correct then the parliament can do what the parliament has been elected to do and we can change the law to make it more democratic and to make it fairer for all South Australians and the Greens' position is that that means taking subsection (1) and (3) out of section 83. Like the honourable member, I have only seen the review clause today, but I reckon if I had a dollar for every review clause that was presented on the last day of debate of a particular bill, it is the most common of all the late amendments, of all the things that get dumped on the table later.

I remember a very famous debate, it may have been WorkCover, no amendments passed at all, but I think the Hon. John Darley managed to get a review clause through in the end and it was the only amendment that was passed out of all of the hundreds that were moved. Other members including the Hon. Dennis Hood have moved for a review clause. It is the most common late minute amendment that I have seen in this place. If people are thinking, 'I reckon we have got this right but to be on the safe side, let's put in a review clause,' I do not find anything offensive about it.

If it looked like it was sneaky or tricky or it meant anything other than the plain language written in it, then, yes, the member might have a point, and you might need to legally analyse it. It is pretty damn straightforward as far as I am concerned: the Premier will review it, says when he has to review it, and then he has to table the review before parliament. It is pretty straightforward. I accept that the honourable member has this legitimate question of all of a sudden apparently a referendum is not required. We can explore that. You can ask the minister the basis of that advice.

Like I say, my assumption, without having done any independent legal research myself, was that you did need to, but if that turns out not to be the case, so be it. I am maintaining the position that our party has always held, that is, that we need to delete these obsolete clauses which hark back to a time when there where only two parties. Back when this referendum and the debate was had in parliament, there was not an extensive crossbench.

In the last parliament, the numbers on the floor were exactly a third, a third, a third. In the upper house, they were seven, seven, seven. That has not translated to the lower house yet, but it may. The Hon. Dennis Hood's party may have remarkable success in the next election. They may get several members elected to the House of Assembly. The Dignity Party, I know, is pushing hard. They are going to have candidates in the upper and lower houses. The Greens, of course, aspire to form government one day. It might not be this election, but it is certainly our aspiration eventually.

The idea that we are held back by a constitutional provision which basically says, 'No, it is a two-party world and you cross-party and Independent members are irrelevant to it,' I think is an antiquated provision that we need to delete. It is not my call, but the honourable member can pursue whether or not a referendum is required, and I will be interested to hear the answer as well.

The Hon. P. MALINAUSKAS: The government agrees largely with the Hon. Mr Parnell's position, notwithstanding the fact that the Greens aim to be a party of government. That might not be something that we have a unanimity of opinion on. I think some legitimate questions have been raised by the Hon. Mr Lucas, questions that I myself have tested in the exercise of developing the government's position, because I largely understood the position to be consistent with what I understand might be the Hon. Mr Lucas's understanding. Maybe I can provide some clarity.

There is the question: why was it the case that a referendum was required when the fairness clause was initially introduced? It is correct to say that a referendum did occur when the fairness clause was introduced, but that is because, I am advised, that particular bill also amended section 82 around the regularity of electoral redistributions. It changed the regularity of electoral redistributions from every eight years to every four years, and section 88(2)(a)(iii) clearly provides that a referendum was required in relation to that part of the change. A referendum was not, however, required in relation to the fairness clause.

In terms of the way that bill developed, the form in which it was introduced into the House of Assembly only provided for changes to the frequency of elections. At that time, the bill, the Constitution (Electoral Redistribution) (Appeals) Amendment Bill, was already accompanied by the Referendum (Electoral Redistribution) Bill. The changes to insert the fairness clause came in after the bill was considered by a select committee of the parliament. It was not the case that those changes also required a referendum. Rather, I am advised, they were inserted into a bill that was already going to a referendum.

The Hon. R.I. LUCAS: My question to the minister is: who has provided that legal advice to the minister?

The Hon. P. MALINAUSKAS: I just wanted to check that I can say this. The government, I am advised, received advice from the Solicitor-General.

The Hon. R.I. LUCAS: Obviously, at short notice I am not in a position to argue the constitutional niceties of whether or not a referendum was required, other than to say my understanding was the same as the Hon. Mr Parnell's and it remains unless, I guess, we have had the opportunity to take alternative legal advice in relation to whether or not a referendum is required.

Given we are where we are, the point that I want to make now is directed directly at my friends and colleagues, the Hon. Mr Darley, the Hon. Mr Hood and the Hon. Mr Brokenshire. I will be quite pointed about this. I have worked closely with each of you. I have accepted that by and large there are swings and roundabouts. There are occasions when members, for justifiable reasons, change their position, but generally in the discussions I have had with each of you, when you have given a clear and explicit commitment to me as an individual representing my party, you have honoured that.

There have been one or two areas where I know there have been late changes of heart, but, in something as significant as this, I place on the public record that I will be appalled if we get to a position of what is now being outlined by the government and the Greens, which, in essence, is a dirty deal designed at the last moment to get rid of the fairness provision and to do over the Liberal Party. It is a fairness provision which has been in the constitution for more than two decades and was introduced by the Labor Party and supported by the parliament.

This is a situation where, on the basis of an hour's notice of whatever it is, the whole world is in these terms. This is not a particular act that relates to shop trading hours or work health and safety—important acts as they are—this is something that will impinge and impact on the electability, or not, of governments forever hence.

Members interjecting:

The Hon. R.I. LUCAS: It will. We had a situation and the Hon. Mr Parnell—

Members interjecting:

The CHAIR: Order!

The Hon. R.I. LUCAS: —refers to quotes that Mr Mackerras and others have made in relation to the redistribution. We agree with some of those aspects in relation to the unfairness of past redistributions, but that, in my view, is not a criticism of the act: it is a criticism of the Electoral Commission who did not interpret the legislation as they were required to do. What occurred on this occasion is that the Electoral Commission was required to follow the Constitution Act and the fairness provisions and was required by the force of legal argument to adhere to the law of the land.

When the Labor Party challenged that and took it to the Supreme Court, they got wiped five-zip because the Supreme Court said, 'That's what the law says, that's the constitution, that's what the fairness provision says.' The Supreme Court, by a majority of five-zip, said, 'That's the law, that's what should be followed and that's what should be done.' That was the legal position. The Labor Party did not like it because they thought they had been in the position for 16 years.

There is no argument at all—without me wishing to impinge on the impartiality of judges—that Liberal governments had appointed people to these positions. There is no argument in relation to that. What we had was that the Electoral Commission for the first time was required by the force of legal argument to follow the fairness provision and to actually follow the constitution. Then, as I said, when the Labor Party took it to the Supreme Court, they got wiped five-zip because the Supreme Court justices—all of them—lined up behind the Chief Justice and said, 'This is what the law requires.' This is a law that was introduced by a Labor government. It was not something imposed on this parliament by a Liberal government.

We fought for it and we supported it, and so did the Independents at the time in both the House of Assembly and in the upper house. It was a united view. It then went to a referendum, and an overwhelming majority of South Australians—I do not remember the numbers—supported it. So, what I am saying directly to the Hon. Mr Darley and the Hon. Mr Hood and others is: I know there have been discussions that have gone on, but the Liberal Party has been dudded at this late stage. The discussions we have had have been dudded by a dirty deal that has been done between the Greens and the Labor Party to disadvantage the Liberal Party. We have been disadvantaged over the last 12 years—three out of the last four elections. Under these particular provisions we got more than 50 per cent.

Members interjecting:

The CHAIR: Order! The Hon. Mr Lucas has the floor.

The Hon. R.I. LUCAS: We got more than 50 per cent of the vote: 53 per cent at the last election, 52 per cent on occasions and 51 per cent on occasions. So, what the commission has done is it has said, 'This is what the Constitution Act requires; it's a fairness provision.' What I am saying to the Hon. Mr Darley, the Hon. Mr Hood and the Hon. Mr Brokenshire is: if there is this inclination to have a review, then let us have a review but of all of section 83.

The Hon. P. Malinauskas: That's what we'll do.

The Hon. R.I. LUCAS: No, it is not. What you are proposing to do is to take out 83(1) and 83(3), the fairness provisions, the bit that the Greens and the Labor Party hate and are trying to get rid of. If the Hon. Mr Darley wants to have a review—and I accept the fact that it might be his inclination to have a review—then so be it, have a review, but review the whole of section 83; do not at this stage gut the provisions by taking out 83(1) and 83(3), which is the Hon. Mr Parnell's amendments. Have a genuine review of the whole of section 83—

The Hon. P. Malinauskas: That's what we're doing.

The Hon. R.I. LUCAS: No, it is not, because you are seeking at this stage to gut it and then just to review the skeletal remains of what is left of section 83. The body, the flesh of section 83 would have been gutted, would have been deboned, and what is left will just be the 83(2) provisions. If there is an inclination for a review—and in the discussions I have had with the Hon. Mr Darley on occasions he has said, 'Yes, I'm not going to vote for these two bills; I'll vote against them at the second reading and we'll defeat them at that stage, but let's see how it works at this election, and then we'll have another look at it in the next parliament.' That has been, I think, a fair assessment of the point of view he has put to me. He was quoted publicly in InDaily and other places, indicating that was his position. He was going to vote against these bills; let us have a look at how they operate at this election and then we will assess them.

The Hon. P. Malinauskas: And that's not changing.

The Hon. R.I. LUCAS: Well, it is, because what you are doing is you are gutting it. If there is to be a review it should be a review of the whole of section 83, which would be to support the new 83A but not to support the Hon. Mr Parnell's amendments. The Hon. Mr Darley could be true to the position he has put to me privately in a series of discussions and to what he said publicly to InDaily and others; that is, let us see how they operate for this election and then we will reassess them in the new parliament.

If you take them out now, what prospect is there going to be under a Labor government after the next election, if they were re-elected, of a review of what is left of section 83? There would be no review of the fairness provision because it would not exist anymore. All we would be reviewing would be the population provisions, the topography provisions, the feasibility of communication provisions and the nature of substantial demographic changes. What is the point of reviewing—

Members interjecting:

The Hon. R.I. LUCAS: These ministers are squealing like stuck pigs because they know they have been caught out. I am putting on the record the nature of the dirty deal that they are attempting to impose in the discussions they have had with the Greens. And fair enough in relation to the Greens, I accept the Hon. Mr Parnell's position; he has argued this position. The dirty deal that is being done is by those opposite in the Labor Party. They are seeking to portray it to other members, like the Hon. Mr Darley and others, as being inoffensive and consistent with the Hon. Mr Darley's public and private positions previously.

I am saying clearly: it is not consistent with the discussions I have had with the Hon. Mr Darley in particular. It is not consistent with the statements the Hon. Mr Darley has made publicly in relation to this; that is, let this stand for this election, let us see how it goes and then have a review and reconsider it after the next election. If that was his position—and it was in the discussions with me—then that would be entirely consistent now with the Hon. Mr Darley supporting the new 83A; removing, as the honourable minister says he is going to do, clauses 2 and 4 of the bill and not supporting the amendments to be moved by the Hon. Mr Parnell, which is what the government wants you to do, the Hon. Mr Darley.

So my personal, political and public entreaty to the Hon. Mr Darley is: stay true to what you have said to me in the many discussions we have had, stay true to what you have said publicly and have a review, if you wish, of the whole of section 83, but do not at this stage gut section 83 by agreeing to the Hon. Mr Parnell's amendments because in the end that would be a superfluous review. There would be no review of a fairness provision because it would not exist anymore. It would have been wiped out by your vote and the Greens and the Labor Party, if you were to vote that way in the committee stage.

The Hon. P. MALINAUSKAS: We have just heard a lot of hyperbole from the Hon. Mr Lucas. It does not accurately reflect exactly what is going on here, and I think it is incredibly important when contemplating the bill that is before us that we be transparent about respective people's different positions because the Hon. Mr Lucas has tried to call into question the consistency of people's various positions within the chamber. So let's be clear about who is being inconsistent here.

The Liberal Party, represented by the Hon. Mr Lucas's remarks, has been consistent. The Liberal Party is opposed to any change in this particular area. The Greens, led by the Hon. Mark Parnell, have been utterly consistent in their opposition to an entrenched system that fundamentally has a construct which is predicated upon a two-party system operating in the Westminster system in perpetuity. The Greens have been consistent with their position on that.

As far as I know, I have not been privy to the discussions between the Hon. Mr Darley and the Hon. Mr Lucas, which the Hon. Mr Lucas has now revealed publicly, but everything the Hon. Mr Lucas has remarked on I understand to be utterly consistent with the Hon. Mr Darley's position and also the position of the Australian Conservatives. The only group represented in this chamber today that has changed their position is the government. It is the government that has changed its position on this bill.

We have heard the arguments put to us by both the Australian Conservatives, we have heard the arguments put to us by the Hon. Kelly Vincent, who I should have mentioned earlier, and we have heard the arguments put to us by the Hon. Mr Darley. The government has responded to the position of the Hon. Mr Darley and the Hon. Kelly Vincent. It is the government that has changed its position. The government has conceded that the support is not there for the bill in the form that we originally proposed. The government concedes that support is not there for the referendum bill that is also contingent upon this bill.

We have acquiesced our position and heard the arguments provided principally by the Hon. Mr Parnell and agree with them. We do not think it is a decent, fair or responsible position in this day and age for the government to support a provision that was developed at a time that was fundamentally different to the one that we are in now. To maintain the rage over a provision that was developed when the two-party construct was believed to exist in perpetuity is a flawed position.

The government is transparent in the fact that it has changed its position in respect of the Hon. Mr Parnell's amendments. It is the government changing its position, no-one else in this room, and the inference from the Hon. Mr Lucas is simply not accurate. The Hon. Mr Lucas in his enraged state, in his desperate attempt to cling on to the existing flawed system, is referring to the review somehow being problematic.

Understand this, Mr President: as far as reviews go in their simplicity, there could be none simpler than the one that is before this parliament. The proposition is that the government, in light of changing its position in support of the Greens amendments to the bill, review that post the election. That is the proposition. It is as plain as they come. The Hon. Mr Parnell referred to this earlier. We are supporting the concept of a review to take place after the Hon. Mr Parnell's version of the bill has had its opportunity to operate. We think that is an eminently reasonable proposition and one that we support. We think it has been put on the table in good faith.

But the Hon. Mr Lucas's contention that anyone in this chamber has changed their position apart from the government is wrong. The government concedes that we have had a change of position and now acknowledge the Hon. Mr Parnell's version of the bill is superior—well, not necessarily superior. We hold true to wanting to see our version of the bill succeed. That clearly does not have the support to succeed. The government accepts that, but in that context we are willing to support the Hon. Mr Parnell's version of the bill, which is consistent with the public interest.

That is what has to be at the forefront of everyone's mind here. Everybody knows that the peculiarity of the fairness clause that exists in South Australia is an absurdity. It cannot be applied in practice by the Independent Electoral and Boundaries Commission in the event that we have an election with a rising component of the vote that is not held by the two major parties. It makes it almost impossible for the Independent Electoral and Boundaries Commission to undertake that work. The government acknowledges the Hon. Mr Parnell's arguments in that respect.

So, it is incumbent upon all of us that when we have an opportunity to change a bill that otherwise provides for a construct where the two major parties have typically in the past argued a case in their own self-interest, that where a major party is willing to concede a point in the interest of the genuine pursuit of democracy in this state, that that opportunity is seized upon.

The Hon. Mr Lucas has made it clear that the Liberal Party is going to baulk at that opportunity—the government will not. The government will work hand in hand with the crossbench, with the Hon. Mr Parnell, to ensure that we have an amended act in a form that best represents the democracy that currently exists here today, as distinct from what was the case when this fairness clause was initially introduced.

The Hon. D.W. Ridgway: What about two years ago? Why at one minute to midnight? What are you trying to hide?

The Hon. P. MALINAUSKAS: There is no change here at one minute to midnight. The amendments that are on the table were tabled by the Hon. Mr Parnell some time ago—

The Hon. M.C. Parnell: Last month.

The Hon. P. MALINAUSKAS: Last month—so it is the government that is willing to acquiesce its position consistent with the Hon. Mr Parnell. No other jurisdiction in the country, and I am advised no other jurisdiction the world, has a clause consistent with the fairness clause. We have an opportunity to right that wrong. We have an opportunity to fix up this mistake and we have a party of government, a major party, willing to support the crossbenchers in the endeavour to fix this up. It is a worthy clause, it is a worthy pursuit and we call on crossbenchers to do the same thing that the Hon. Mr Lucas has asked people to do and that is remain consistent in their positions. Everyone can remain consistent in their position. It is the government that is changing its position to drop the bills as they are originally proposed because the support is not there and rather support the Hon. Mr Parnell's amendments.

The Hon. K.J. MAHER: I will not speak for very long. I will might reflect on a few things people said and draw together some of what has been mentioned in this debate. The Hon. Mark Parnell talked about the creator of the scheme as it currently stands and his view on it. It was then, I think, deliberately and wrongfully characterised by the Hon. Rob Lucas as being that it is the application that is at fault. That is not what the person who came up with this scheme says. Malcolm Mackerras said it is the scheme itself that is at fault. It is the fairness clause itself that is at fault—not the application of it, and not what a boundary description does. The person who created this scheme says the scheme itself is at fault.

I think it needs to be taken into account that nothing changes for this coming election. The boundaries the Liberal Party are so fond of remain. They are the boundaries for this election. This is what the election is going to be fought on. These are the boundaries that this election is going to be fought on. Then, if the amendment from the Hon. Mark Parnell succeeds, the future redistributions, pending a review—so that is not necessarily what will happen—will occur in a way that is consistent with every other state and the commonwealth. It will take into account things like the number of electors in each seat and communities of interest.

The next election occurs on the boundaries that the Liberals are so fond of and then, going forward, the redistribution occurs from those boundaries consistent with how it happens in the rest of Australia and, quite frankly, throughout much of the rest of the world. I am sure we will have the Hon. Rob Lucas again get up and yell and bully, and that is his general modus operandi. What he does, he gets up and we saw him yell at crossbenchers. We saw him yell and try to bully crossbenchers. That is how he operates. We see him come in here time and time again. He names public servants who cannot defend themselves. He comes in and puts words in people's mouths, cajoles and bullies. Quite frankly, I think when people behave like that, it says that they are not strong in their own thoughts on their position and they need to resort to that. Quite frankly, you lose people when you behave like that.

The Hon. M.C. PARNELL: I do not believe I need to make a personal explanation, but I will make a clarification. I did say that I had filed these amendments two weeks ago. They were in fact filed on 31 October, which is four weeks ago.

The Hon. D.G.E. HOOD: I rise briefly to make a few points on this issue. The first thing is that I must say, quite legitimately, that the Australian Conservatives are attracted to the Hon. Mr Parnell's amendments. We can see the logic in them. It is not for me to defend the Greens, but we can see that he has been a consistent advocate for that position. One has to respect that those are the facts. He has advocated that position for a long time now and I think these amendments he has put forward are a reflection of that position, so none of us are surprised, I think, by the Greens' amendments.

The one thing I am determined to achieve when I leave this place—and who knows when that will be; it will be at least four years from now, and I certainly hope it is longer but that remains to be seen—is that nobody in this place will ever come to me and say, 'You made me a promise and you didn't keep it,' or 'You gave me your word and you broke it,' or something to that effect. I will not do it. We have made many commitments over the 12 years I have been in this place and I have yet to break one of them, to the best of my knowledge, and if any member has a different view of that, I would certainly like to talk to them about it. I do not intend to start now.

I have had very fruitful discussions with both the government and the opposition and indeed the Greens on this issue, and some very detailed discussions particularly with the government. But we gave a commitment some time ago now to the opposition on this issue and, as I said, we do not break our commitments. That said, I can see the merit of the government's argument and the Greens' position in this particular case, but when it all comes down to it, if you cannot rely on what people say in this place, then it is very difficult to rely on much at all, so our position remains unchanged. I think our position is well established and I do not need to go through it again. Our position remains unchanged and we believe that we have had sufficient debate on this and we should bring it to a vote in the near future.

The Hon. K.L. VINCENT: Let me start by saying that I hope the eardrums of poor Hansard are alright. May I also say that, quite frankly, it would be nice to see the Hon. Mr Lucas speak so passionately about issues that were not only about his perceived election chances, but I will leave that there for the time being. The Hon. Mr Lucas does raise a valid point, though, about the need for consistency in this and indeed all the debates where possible.

I am not going to go into any great detail, given the time and given that this is an issue that has been before us for four weeks, as we have now been reminded in regard to this amendment. The Dignity Party's basic position is that we support the one vote one value amendment bill but we are not attracted to the idea of a referendum. My understanding, through recent discussions with the government, is that the position the government has now reached after consulting with crossbenchers and other parties, will result in exactly that outcome—this bill passing but without the need for a referendum. That is why I am attracted to it on behalf of the Dignity Party.

I can also very much see the merit in the Parnell amendments in their own right. As other members have already said, Mr DeGaris—the architect and designer of what is known as the fairness clause—has admitted that it does not work in practice and we can ascertain from that, I think, that that is because it was designed at a time at which the rise of minor parties and independent voices in parliament could not be foreseen, so I think we do need to move forward with amending that.

It was put to me that the clause had not been previously taken out in previous parliaments because a referendum was required and the complexities that come with that. If a referendum was not required to remove that clause after all, it would have looked better if the government had sought legal advice from the Solicitor-General and not at the end of this parliamentary sitting.

Notwithstanding that, I am told that the advice is sound and, indeed, when I met with minister Malinauskas last night about this bill, I asked him to assist me with securing my position knowing that I was doing it based on evidence, if I could see that advice and, if that was not possible, if someone from the government could write me a letter basically outlining the advice and what the impact of it would be. Obviously, the position that has been landed upon is that the advice from the Solicitor-General itself is privileged, but I do have a letter from the Attorney-General with today's date on it. It states:

Dear Kelly,

I write in relation to the Constitution (One Vote One Value) Amendment Bill 2017 (the bill).

As you are aware, the Hon. Mark Parnell MLC has filed amendments to the bill (the Parnell Amendments).

I have sought legal advice in relation to the Parnell Amendments. After considering the advice, the Government has determined that a referendum would not be required to give effect to the bill in amended form.

Given that this essentially achieves what the Dignity Party would have liked to have seen from the outset, and that we have had these amendments before us for four weeks, I think we have had ample time to have become more informed and maintain our consistent position, which is to support the bill in its current form.

The Hon. J.A. DARLEY: I do not deny the fact that until 2.30 today my position was to oppose both bills. I looked at the Hon. Mark Parnell's amendments and I thought they had some merit. I had concern about those and I discussed them with the Hon. Mark Parnell. Then the government came to me with its amendment concerning the review. No matter what we do today, my understanding is that the election in 2018 will be fought on the boundaries that currently exist. If there is a review afterwards, there is nothing to say that the outcome of that review could change section 83—you could put things back, take things out, etc. So, on that basis, I changed my view.

Clause passed.

Clause 2.

The Hon. P. MALINAUSKAS: I move:

That clause 2 be opposed.

Clause negatived.

Clause 3 passed.

Clause 4.

The Hon. P. MALINAUSKAS: I move:

That clause 4 be opposed.

Clause negatived.

New clause 5.

The Hon. M.C. PARNELL: I move:

Amendment No 1 [Parnell–1]—

Page 2, after line 24—After clause 4 insert:

5—Amendment of section 83—Criteria

(1) Section 83(1)—delete subsection (1)

(2) Section 83(3)—delete subsection (3)

I do not need to speak to it; we have agitated the issue.

The Hon. R.I. LUCAS: As I indicated before, the Liberal Party will be strongly opposing this particular provision. Section 83 of the Constitution Act is headed 'Electoral fairness and other criteria'. They are not words that I use. They are the words in the Constitution Act, inserted by a Labor government and supported by the parliament and the people of South Australia.

It is the electoral fairness and other criteria provisions, and the electoral fairness subclause is this 83(1). The Hon. Mr Parnell is moving that we remove the electoral fairness provision from section 83. For the reasons I have outlined, we are trenchantly opposed to the removal of this particular provision. Given that there is to be a review, we strongly disagree with the position that the Hon. Mr Darley has just outlined. When one looks at the new review provision, on which we will vote soon, it states: 'The Premier must undertake a review of the operation of section 83.'

Section 83, if the numbers prevail in this chamber, will not include a fairness provision, will not include subsection (3), which is a related provision to the fairness provision, so the Premier of the day will be entitled—and if the Labor government is re-elected—to review the section 83 that is left; that is, if members do what they are intending to do, gut section 83, all that will be left will be 83(2) of the Constitution Act. It will have no reference to fairness or the other related provision under 83(3).

So the Premier of the day will only have to review, and will say, 'All the act requires me to do is review the operation of section 83,' and will look at the various provisions of section 83. That is why we say that, if you are going to have a genuine, fair dinkum review of section 83, then you leave section 83 in there at the moment.

As the Hon. Mr Darley and the minister have agreed, the boundaries will stay the same for this election and, if after the election the parliament wants to have an urgent review, it says that the review required must commence not later than 12 months. So, if the government of the day wants to have a review in the first month of the new parliament and institute changes if they wish to, they can do all those sorts of things immediately upon election after March of next year.

But, at least it would be a genuine, fair dinkum review of the existing 83. It would be a review of the fairness provision, and then all those other provisions, such as population, topography, feasibility, communication, demographic changes, etc. But, if what occurs is what is being proposed, it will not be a review of the fairness provision because it will have gone.

It is a fanciful notion to suggest that any future Labor government, given that they are now concerned that a fairness provision disadvantages them—they have been happy to reap the electoral benefit for more than a decade (three elections out of the last four) of previous electoral commissions' interpretation of this particular provision. It is only now that it has been properly interpreted and supported by a 5-0 judgement of the Supreme Court that they now have concerns about electoral fairness.

The point I make is that various members have said—the Hon. Mr Parnell has prosecuted this case—that in some way there is a growing tide of Independents and minor parties in this chamber. This particular chamber has been strongly divided into threes, more so in the last period, since the 1990s. No government has controlled this chamber since the late 1970s.

The Hon. M.C. Parnell: It's fairly elected, that's why.

The Hon. R.I. LUCAS: That is for an upper house. It is a different system from the lower house. The view of many, other than the Hon. Mr Parnell, is that good governance is based on a party or government being able to actually govern in their own right in the House of Assembly. It is not a view that the Hon. Mr Parnell accepts, but up until now it has been a view that the Labor Party and Liberal Party have accepted; that is, if you want to have government, you ought to have a government in the house of majority, in the lower house, that is able to govern, and then they are subject to a different electoral-based system in the Legislative Council or in the Senate, which acts as the filter or the house of review. There is a strong argument to have different electoral systems electing both lower houses and upper houses.

I remind members that, contrary to what the Hon. Mr Parnell is saying, at the time these fairness provisions were introduced there was a minority government in the House of Assembly. There were a number of Independents in the House of Assembly, at least as many I suspect, from memory, as there are now in the House of Assembly. So, this notion that there has been some creeping change in the House of Assembly over the years from when this was introduced does not correspond with the facts.

Martyn Evans, Terry Groom and others were represented at that particular time and it was one of the reasons why the fairness provisions were implemented: because the government of the day had to rely on Independents or minor parties—I cannot remember whether they represented parties, I think they were Independents—at the time in relation to getting their legislation through, and a number of reforms were achieved in that period because of the role of the Independents. The situation at the time and the fairness provision introduced in the House of Assembly was very similar to the situation that we have now in terms of the House of Assembly.

Again, it is my final plea to members to say: if you want a genuine review of section 83, you cannot support this particular motion from the Hon. Mr Parnell because what it does is it guts section 83 before the review and it means that ultimately the review will not include a review of the fairness provision because it will no longer exist if you vote to support this particular amendment.

The Hon. P. MALINAUSKAS: The review allows the opportunity to review section 83 in its amended form as suggested by the Greens post the election. It is a prudent approach. It was one that we thought makes obvious sense considering that a change is being proposed along the lines suggested by the Hon. Mr Parnell. If the council is going to support that change it makes sense for that review to take place after the election.

The committee divided on the new clause:

Ayes 10

Noes 9

Majority 1

New clause thus inserted.

New clause 6.

The Hon. P. MALINAUSKAS: I move:

Amendment No 1 [Employment–1]—

Page 2, after line 24—Insert:

6—Insertion of section 83A

After section 83 insert:

83A—Review

(1) The Premier must undertake a review of the operation of section 83.

(2) The review required under this section must commence not later than 12 months after the general election of members of the House of Assembly next occurring after the commencement of this section.

(3) The Premier must prepare a report based on the review and must, within 12 sitting days after the report is prepared, cause copies of the report to be laid before each House of Parliament.

New clause inserted.

Title passed.

Bill reported with amendment.

Third Reading

The Hon. P. MALINAUSKAS (Minister for Health, Minister for Mental Health and Substance Abuse) (17:01): I move:

That this bill be now read a third time.

The Hon. R.I. LUCAS (17:01): I rise at the third reading. I will not repeat the arguments. The Liberal Party is trenchantly opposed to this particular provision. We oppose the third reading of this particular bill. We oppose the third reading and we will be dividing at the third reading.

Ayes 10

Noes 9

Majority 1