Constitution (Electoral Fairness) Amendment Bill

Introduction and First Reading

The Hon. R.I. LUCAS (Treasurer) (16:10): Obtained leave and introduced a bill for an act to amend the Constitution Act 1934. Read a first time.

Second Reading

The Hon. R.I. LUCAS (Treasurer) (16:11): I move:

That this bill be now read a second time.

This bill seeks to reinstate in the Constitution Act what is known as the 'fairness clause': subsections 83(1) and 83(3). The fairness clause was actually moved in 1990 by the then deputy premier of the Labor government, Don Hopgood, and supported by the Liberal Party and other Independent members at the time. The insertion of the fairness clause in the Constitution Act came after decades of campaigning by the Labor Party and others on the issue of electoral fairness.

Subsections 83(1) and (3) provided that a redistribution must be fair so that the candidates of a particular group attracting more than 50 per cent of the statewide vote will be elected in sufficient numbers to enable a government to be formed—the fairness clause. That is the imperative requirement that the statewide popular vote should, so far as practicable, determine the outcome of elections in this state. Of course, that ought to be an uncontroversial proposition. That is chief among a number of settled principles that ought to remain similarly uncontroversial. They are principles expressed in the Constitution Act, the result of reform commenced by the Hall Liberal government and continued by the Dunstan Labor government, culminating in the establishment in 1975, by part 5 of the Constitution Act, of an independent commission.

First among those, and long-settled, is the principle that members of parliament represent electors rather than geographic area. The system of malapportionment was brought to an end with the result that districts had drawn on the principle that the number of electors in each district does not vary by more than the permissible tolerance. Section 77 of the Constitution Act, which as a result of Labor's determination to appeal the 2016 commission's findings, is now the subject of Full Court authority in the case of Martin v Electoral Districts Boundaries Commission [2017] SASCFC 18. Secondly, a gerrymander ought to be avoided rather than embraced. Thirdly, it ought not be controversial that boundaries should be drawn in such a way that seats will change hands in response to a change in voting patterns across the state.

The importance of the fairness clause, a creation of the work across parties 30 years ago, is to avoid a gerrymander. The need for an imperative reference to the statewide vote in the form of the fairness clause was recognised by all sides then. As referred to earlier, the fairness clause was actually introduced by the then Bannon Labor government. Labor deputy premier Don Hopgood said at the time, on commending the introduction of the fairness clause, that it was an enhancement of the Hall and Dunstan electoral reforms, and had they thought of it in 1975 then they would have included it at the outset. He said, and I quote:

When Premier Dunstan sought to incorporate this principle in legislation in the early 1970s, he had the advantage that he did not have to bother with talking about political Parties. People say that he ignored fairness, but I think it would be fairer to say—because I talked to Don Dunstan and Hugh Hudson at the time and I had read all the literature—that what they said was that they did not know how one could formulate legislation to go that step further. They did not really think it was possible. I think what honourable members are saying this evening is that this committee has been very imaginative and adventurous in the way in which it has sought to bring down a formulation for the consideration of both houses of parliament which will attempt to do that which a former decade did not discount but really felt was just too difficult to tackle.

It is apparent that there is an unusual risk of gerrymander in this state, intended or inadvertent. That is for reasons including our state's geography and the concentration of the bulk of the population in metropolitan Adelaide. The parliament recognised that fact back in the 1980s and 1990s. It worked on a principled basis to ensure that the electors of the state could have confidence that the outcome would follow the will of the state as a whole.

Moreover, the independent commission, the Electoral District Boundaries Commission, charged with the responsibility to determine electoral boundaries, has long recognised the unusual risk of gerrymander in South Australia. The 1991 commission, for example, called it 'an enduring but uncontrived imbalance' which it said, at paragraph 14.2:

…arises from a number of factors peculiar to South Australia… including the shape of the state (mainly the contours of the coastline), the uneven distribution of its rainfall, the consequential uneven distribution of its population.

The 2016 commission found, at page 30 of its report, that there was an innate electoral imbalance that applied over 40 years. The fairness criteria were determinative of the 2016 redistribution, the EDBC observing, at paragraph 13.3 of its final report:

Ultimately, having ensured that the number of electors in each electoral district is not, at the relevant date, 10 per cent more or less than the 'electoral quota', the commission must give effect to the requirements of section 83(1) and (2).

Here it should be said that, over the period of time that we had the fairness clause operating, for a long time it did not achieve the desired result, as demonstrated by election results following its introduction. I seek leave to incorporate into Hansard a purely statistical table which outlines election outcomes since the 1991 redistribution.

Leave granted.

Table 1: House of Assembly election outcomes since the 1991 redistribution

SOURCE: calculated from data at—

State Electoral Office, 1996, Statistical Returns for General Elections 1993 and By-elections 1994, SEO, Adelaide

State Electoral Office, 1998, Statistical Returns: General Elections 11 October 1997, SEO, Adelaide

State Electoral Office, 2003, Statistical Returns for the South Australian Elections 9 February 2002, SEO, Adelaide

State Electoral Office, 2007, Election Statistics: South Australian Elections 18 March 2006, SEO, Adelaide

Electoral Commission SA, 2010, Election Statistics: South Australian Elections 20 March 2010, ECSA, Adelaide

Electoral Commission SA, 2015, Election Statistics: South Australian Elections 15 March 2014, ECSA, Adelaide

Electoral Commission SA, 2019, Election Statistics: South Australian Elections 17 March 2018, ECSA, Adelaide

This table shows that at three recent elections (2002, 2010 and 2014) the Labor Party has polled less than 50 per cent of the two-party preferred vote and yet has become the government. It might therefore have been thought that perhaps the fairness clause was ineffective, or that the goal to which it aspired was not practicable. Never, however, was the principle expressed by the fairness clause itself controversial. The 2016 commission, in its application of the fairness clause, demonstrated that there was in fact no problem with the provision, it was just that it had never been properly applied.

The efficacy of the fairness clause was then demonstrated by the outcome of the 2018 election which, for the first time in a very long time, indeed produced results that reflected the popular will. No-one has seriously questioned the fairness of the outcome of the 2018 election. The 2018 election result is a powerful reason for the reinstatement of the fairness clause. It puts away any notion that the fairness clause was irrelevant or ineffective.

What the 2018 election result did was prove that the fairness clause was a key element in ensuring a fair election outcome. Before the 2018 election was held, before the outcome of that election could be known, and therefore before its application could be tested, in the dying days, the very last days of the former government, in December 2017, by the Constitution (One Vote One Value) Amendment Act 2017, Labor removed subsections 83(1) and (3) of the Constitution Act. I said at that time:

The bill is one of the most grotesque, offensive and obscene grabs for power I have seen in my time in this parliament. The background to this particular bill is that earlier this year the full bench of the Supreme Court made a decision which confirmed a decision of the Electoral Districts Boundaries Commission in relation to their interpretation of the law of the South Australian parliament, in particular the Constitution Act as it applies to redistributions. The result was a unanimous decision of the Full Court of the Supreme Court. It was that not only had the Electoral Districts Boundaries Commission correctly interpreted the constitution, the law of the state, but that it had resulted in what has been commonly referred to as a fair set of boundaries, as required by the Constitution Act of South Australia.

I said further on that occasion—and remember that this was prior to the 2018 election, before we had the benefit of the demonstrated results of the application of the fairness clause:

Having enjoyed the benefits of favourable decisions to them from previous boundaries commission redistributions, in this bill they now want to rewrite the rules completely to try to favour themselves again. That is why I have described this bill as the most grotesque, offensive and obscene grab for power that I have ever seen in this chamber.

Finally, during that debate, I made the following statements about the Labor Party's hypocrisy on electoral fairness and their original attempt to amend section 77 of the Constitution Act:

It is clear that the Labor Party is prepared to jettison decades of Labor principles, policy, campaigns and argument. Those campaigns and argument, which were argued by Labor intellectual giants of the past, with the names of Dunstan, Hopgood, Hudson and Virgo, have been attempted to be overthrown by the Labor intellectual pygmies of 2017, with the names of Weatherill, Rau, Maher and Malinauskas. The dilemma we have in South Australia is that we have people who purport to represent the Labor Party seeking to overturn decades of Labor policy, campaigns and implementation of their own policy positions through legislation in terms of one vote one value.

Now, that it does not suit their partisan interests, they seek to overthrow everything they have believed in for the last many decades because they are unhappy with the independent decision of five judges on a Full Court of the Supreme Court, and they are unhappy with the independent decision of the boundaries commission in relation to trying to implement fair electoral boundaries in South Australia. That is why we have this bill, introduced by the Hon. Mr Malinauskas. In the brief second reading speech on the bill, he says:

The bill will delete current section 77—

That is the amendment they introduced in 1975, which they said was historic because it implemented one vote one value. The Hon. Mr Malinauskas, on behalf of the current Labor government, says:

The bill will delete current section 77 and replace it with a new paramount principle for the making of an electoral redistribution. The new paramount principle to which the commission must have regard is that the number of electors in each electoral district should be equal at polling day. This principle is not modified or watered down by a notion of tolerance. The commission must aim for numerical equality of electors across districts, or one vote one value. Proposed new section 77(2) expressly provides that the new paramount principle prevails over the provisions of section 83 of the Constitution Act, which sets out other considerations that the commission is, as far as practicable, to have regard to in making an electoral redistribution.

What the Australian Labor Party is now saying is, 'Stuff the campaigns and the policies that one vote one value was a quota and plus or minus 10 per cent,' that campaign for decades. What they are now saying is, 'Because it no longer suits us we are now redefining one vote one value', and are trying to pretend this is what they meant all along, that you actually have to have an independent commission driving a boundaries redistribution that has to have exactly equal numbers in each electorate come election day. That is the paramount principle, not the issue of the fairness of the electoral system.

What the Labor Party wants is this mathematical formula-driven process which, they know, has allowed them to win government with less than 50 per cent of the vote in three out of the four last elections. The Hon. Hugh Hudson pointed out many years ago the notion of the differential concentration of majorities favouring at one stage the Liberal Party and at another stage the Labor Party. He argued that these things come and go, but if one looks at the 1989 result the situation has clearly been that there have not been any examples of a Liberal government selected since 1989 with less than 50 per cent of the vote but there have been four Labor governments elected on less than 50 per cent of the vote. As I said, three out of the last four have been elected with less than 50 per cent of the vote. Further on, the Hon. Mr Malinauskas, on behalf of the government, said:

'The 2016 commission took a different approach. It used the 10 per cent permissible tolerance in section 77(1) of the Constitution Act to try to address what the commission described as the "innate imbalance, against the Liberal Party, caused by voting patterns in South Australia upon which have been imposed successive redistributions". The government considers that the use of the 10 per cent permissible tolerance in this manner erodes the principle of "one vote one value". This government is firmly of the view that the commission should strive to achieve, to the extent possible, numerical equality of electors in each district at polling day, that is, to achieve one vote one value.'

There it is in all its naked obscenity. Contrary to decades where the Labor Party have argued that one vote one value was a quota with plus or minus10 per cent (as I put on the public record), because it no longer suits them they are now clearly saying that, 'One vote one value, under our new definition, is that it has to be exactly equal numbers in each electorate at the time the election,' irrespective of whether it delivers a Labor government with only 47 per cent of the vote or 46 per cent of the vote. That does not matter. Electoral fairness is not the issue from the Labor Party viewpoint; it is the notion of the new version of what one vote one value is, and not what they have long campaigned for over many, many years.

Clearly, this bill is trying to gut the fairness criteria in the Constitution Act. It is trying to return South Australia to the circumstances which led to 2002, 2010, 2014; that is, Labor governments elected with significantly less than 50 per cent of the vote and, as former Labor luminaries like Hugh Hudson and Don Hopgood identified, to take advantage of the differential concentration of majorities. What the bill and this Labor government are seeking to do is to tie the hands of the independent boundaries commission behind its back so that it cannot achieve electoral fairness.

So, electoral fairness is not the overriding provision they should achieve, even though the Labor Party moved the electoral fairness provision in 1990. What they are seeking to do is constrict the boundaries commission from being able to achieve electoral fairness through this devious and underhanded mechanism of redefining what they have long argued one vote one value was.

That is the end of that very long contribution I made in the 2017 debate. Fairness is not achieved by slavish adherence to rules, such as precise numerical equality of elector numbers in each district at the expense of distorting the overall outcome. The former Labor government's attempt to amend section 77 was only not proceeded with because of advice that a referendum would be required and, of course, a deal they had negotiated to amend section 83.

As a result of the removal of the fairness clause, unless subsections 83(1) and (3) are reinstated, the 2020 redistribution would be done without that imperative reference to the statewide vote, which has proved so necessary to ensure a fair outcome. As I have indicated, the 2018 election produced a fair outcome. The election result compels us to return to the fairness clause. Its removal prior to the election might conceivably have been defended on grounds that its importance or efficacy was not proved. The election, however, proved the efficacy of the fairness clause in ensuring a fair outcome.

It is this fact that should cause members to reflect on what happened prior to the election. The election proved that the fairness clause was never the problem. The problem over the last 30 years since its introduction was, rather, that it had never been properly applied. There is an urgency to this measure because, in order to ensure the fair boundaries that have resulted from the application of the fairness clause stay fair, it is necessary to reinstate these subsections of the constitution before the next commission commences its work.

In or about early 2020, the Electoral Districts Boundaries Commission will commence work on setting boundaries for the 2022 election. Therefore, this parliament is being asked to resolve this issue before the end of this calendar year. That would ensure the commission, as it commences its work next year, would have a requirement that the overriding purpose of an electoral redistribution is to try to ensure the results of any election are fair and reflect the wishes of the majority of the voting population. I urge members to reinstate the fairness clause and to support the bill. I seek leave to have the explanation of clauses inserted in Hansard without my reading them.

Leave granted.

EXPLANATION OF CLAUSES

Part 1—Preliminary 1—Short title 2—Amendment provisions

These clauses are formal.

Part 2—Amendment of Constitution Act 1934

3—Amendment of section 83—Electoral fairness and other criteria

This clause restores the subsections in section 83 that were removed by the Constitution (One Vote One Value) Amendment Act 2017.

4—Repeal of section 83A

This clause repeals the review provision that was inserted by the Constitution (One Vote One Value) Amendment Act 2017.

Debate adjourned on motion of Hon. I.K. Hunter.