Bills

Constitution (Electoral Fairness) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 17 October 2019.)

The Hon. K.J. MAHER (Leader of the Opposition) (15:28): I rise today to speak to this bill and indicate that I am the lead speaker for the Labor opposition. This bill seeks to reintroduce the unfairness clause, and Labor opposes this bill. It is an attack on democracy and an attack on the principle of one vote one value.

Antony Green from the ABC has variously described this clause as 'absolutely unworkable, unless you have a dominant two-party result' and 'a gerrymander'. Even the person who was responsible for helping author the misleadingly named fairness clause, Malcolm Mackerras, has described it as 'a failure', 'a silly clause, of which I'm not proud', and 'just a silly idea and I should have never entertained it'. Labor has always been committed to the idea of a fair distribution of voters in electorates, and we will continue to defend that. What we, on this side, want to see is that electoral boundaries are drawn on the basis of one vote one value, population size in each electorate, as well as factors like communities of interest and geography.

The unfairness clause is firmly predicated that South Australia will only ever have two parties. The 2018 election indicated that that may not always be the case. There were any number of sliding door moments in that campaign, that had things gone just slightly differently we might have had five, 10 or even more members of SA-Best in the lower house.

It is worth keeping in mind that the Supreme Court judge who sits on the Electoral Districts Boundaries Commission has been appointed and her appointment was gazetted, as revealed in estimates, in the middle of the year. The commission should be allowed to get on with determining the boundaries without having to look over their shoulders, concerned at the new Liberal government changing the rules as they are undertaking their work.

We just have to look at some practical examples of how the boundaries were drawn at the last election. In attempting to give effect to the wildly unworkable provision, as Antony Green and Malcolm Mackerras have indicated, we saw massively different numbers of electors in different seats. Some seats ended up on election day over or under 10 per cent from the average. For example, the seat of Elizabeth was 11.1 per cent over quota, while the seat of Flinders ended up 11 per cent under quota. Clearly, the long-held principle in this country and in most Western democracies of one vote one value has been impossible to realise with the old unworkable so-called fairness provision.

In fact, of the 10 seats most under quota, only one is held by Labor, and that is Giles. Whilst of the 10 seats most over quota, seven are held by Labor. This, in effect, means that Liberal votes are worth more than Labor votes. So let's be very clear, the Liberals' view is not one of high moral principle or authority but one that seeks to entrench a broken system that unfairly makes Liberal votes worth more than Labor votes. It potentially makes Liberal votes worth more than SA-Best or Greens votes.

It entrenches a system where some votes are worth more than others. It entrenches a two-party system that we saw from the last election may not always be the case, and very nearly was not, and even one of the chief proponents of the old scheme, Malcolm Mackerras, has described it as 'a failure' and a 'silly clause…of which I am not proud'. We should allow the Electoral Districts Boundaries Commission to get on with their job, to draw the boundaries on what the parliament—and, in fact, this council—decided last time and have an election to look at how the new provisions work. With those few words, I once again indicate that Labor intends to oppose this bill.

The Hon. M.C. PARNELL (15:32): Having successfully ensured that the constitution is now fairer to all parties and candidates, not just the two old parties, the Greens are not about to undo the good work from two years ago by reinstating the offensive provisions back into the constitution. I have discussed this issue with a number of present and former Liberal Party members over the last couple of months. Whilst I am always happy to have a healthy and robust debate about the various models of democracy and all the different permutations that go to make up our system, I have made it clear to them that we do not support this bill and we will be voting against it at the second reading.

I made a fairly comprehensive contribution back in 2017. Some of the references I made back then were references that the Leader of the Opposition has just made now: Malcolm Mackerras calling it silly and that he wished he had not done it; Antony Green, the ABC election analyst, describing it as a gerrymander; and there were other commentaries as well. In his second reading explanation of this bill, the minister revisited his contributions from 2017, mostly revisiting his words attacking the opposition, the then government.

In summary, our opposition to this bill is based on the fact that the so-called fairness clause is, in fact, if fair at all, only ever fair to the two major parties. It is not fair to third parties. It is not fair to Independents. That is because the bill sees the world through that two-party lens. It only cares about the two-party preferred vote, and the only relevance of third parties or Independents is their role in supporting either Liberal or Labor to form government. That is the only relevance that minor parties, third parties and Independents have. How do they fit into a two-party system?

Let us have a quick look at the 2018 state election. This is the election that the government claims shows that the so-called fairness clause is working and delivering the outcome that South Australians want. Well, does it? Let us look at the results in the lower house: the Liberal party got 38 per cent of the primary vote in the lower house, the Labor Party got 33 per cent, minor parties and Independents 29 per cent. In other words, 62 per cent of voters did not vote for the Liberal Party. If we are going to be fair, 66 per cent of voters did not vote for the Labor Party.

If it really were a fair system that was based on the votes that South Australians cast, then Nick Xenophon's party would probably have got six seats, the Greens would have got three, even the Australian Conservatives would have got a seat based on their percentage of the statewide vote. The result of a system like that would be that we would have a coalition government, as they do in many other parts of the world, including wealthy and prosperous, advanced economies in Europe and Scandinavia. That is the sort of system they have had for many years.

What the government is seeking to do is manipulate the boundaries to ensure that they can win at least 50 per cent of the seats with only 38 per cent of the statewide vote. I refer members to an analysis published in InDaily a couple of weeks ago by Adrian Tisato. He makes it clear that he is a Labor Party lawyer and he analyses this debate through that lens, but I think his analysis pretty well holds up. He says, in his article:

Essentially, the Liberals make three claims. First: they were kept out of government in South Australia from 2002 to 2018 because of a 'gerrymander' that favoured Labor. This was despite South Australia's Constitution Act having a 'fairness clause' in it that was meant to prevent such a thing occurring.

Second: the 2016 boundaries commission was the only one that correctly applied the 'fairness clause'. All previous commissions failed to do so.

Third: in the last parliament, Labor sneakily removed the 'fairness clause' from the Constitution with the support of crossbenchers. The loss of the 'fairness clause' will increase the likelihood that the commission will set electoral boundaries for the 2022 election that will again be 'unfair' to the Liberal Party.

I think he accurately sums up what the Liberal Party arguments are. Importantly, he also goes back and analyses what actually happened in 2017. He refers to this claim of how Labor, allegedly with the support of the crossbenchers, snuck through an amendment to the Constitution Act that removed the fairness clause. He points out:

Labor did not propose the amendment. The Greens did. The Greens argued that the 'so-called fairness clause', as they have always called it,—

and as I continue to call it—

has always been unfair to minor parties and independents.

He then said, 'Labor and one other crossbencher supported the Green's amendment.' He may not have that right; I am pretty sure we had two crossbenchers, I think it was the Hon. John Darley and also the Hon. Kelly Vincent. I will come back to that vote a bit later on.

The question that arises is: why has this issue been put back to us now? I think the answer is fairly clear, and that is that the job of setting the boundaries for the next election is underway. The minister said, in his second reading:

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's necessary to reinstate those sections of the Constitution before the next Commission commences its work.

The minister may have missed the bus a little bit because the electoral boundaries commission, either around the same time or maybe even a little earlier than that (let us say it was around the same time), wrote to all the political parties and told them that they had, in fact, started work.

The letter the registered officer for the Australian Greens received was dated 10 October and signed by David Gully, secretary to the Electoral Districts Boundaries Commission. It basically invited us and all other political parties to make submissions to assist the boundaries commission by making representations on 'the effects of amendments enacted by the Constitution (One Vote One Value) Amendment Act 2017 which commenced on 12 December 2017.' The boundaries commission says:

Notification of the commencement of proceedings and an invitation to make written representations will be advised by way of an advertisement, published in newspapers circulating generally throughout the State commencing Saturday 19 October 2019.

That ad has been in the paper already, so that is underway. It goes on:

Any person wishing to make representation to the Commission on the effects of the amendments to section 83 of the Constitution Act may do so in writing, and deliver the representation either personally or by post, to reach me no later than 5.00pm on Friday 15 November 2019.

It then goes on to say that the first hearing has been set for 10am at the Supreme Court on 3 December. The work is underway, so I understand why the government has brought this on, but there is a bit more to it than that. When the constitution was changed two years ago, one of the changes was the insertion of section 83A, and this is the review clause. This is important because that clause provides:

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.

What does that mean? The section commenced operation on 12 December 2017. The general election for the House of Assembly was on 17 March 2018. The review should have been commenced by 17 March 2019. So 7½ months ago the Premier was legally required, under the constitution of South Australia, to commence a review. In blatant disregard of that provision of the constitution, the government instead decided to simply present a bill to the parliament to reverse these changes.

Whether a person could have gone to the Supreme Court—and other lawyers might help me with it—for a writ of mandamus perhaps, obliging the Premier to comply with the constitution and commence the review, may well have been successful. Instead, this government is thumbing its nose at the constitution, thumbing its nose at the parliament and saying, 'We don't care what the constitution says, we're not going to do the review that was required, which we should have started 7½ months ago, which we should have finished by now and which we should have tabled in both houses of parliament.' The government is just not going to do it, and I think that is arrogance in the extreme.

Let's have another quick look at what happened two years ago. The reason I want to go down memory lane a little is because history does have a habit of being rewritten unless we pay close attention to it. If you look at the Hon. Rob Lucas's contribution two years ago, he refers to a 'dirty deal'—they are his words—between the Greens and Labor at least five times during the debate.

The truth is that there was no deal. What there was was a Greens amendment that had been filed four weeks prior to the debate, which Labor agreed to support in exchange for nothing. They agreed to support it because it was good policy—no deal, no quid pro quo, nothing. They supported it because it was good policy. But, if we are going to be really fair about this, they also supported it because their own preferred model did not have the support of the chamber; it did not have the numbers.

Members might recall that, in my view at least, Labor had been tying itself in knots with some of this one vote one value, trying to get the words right and calling up the provisions for a referendum to make changes. It was a drafting nightmare and I think the Legislative Council in its wisdom said, 'No, that's not really the way to go.' The government of the day did not have the numbers for those reforms. They had people supportive of the principles of one vote one value, but it was a complex drafting exercise and they did not have the numbers to get their bill through. I then suggested to the Labor Party that I was more than happy to move to get rid of the fairness clause. They then took it to their party room and the rest is history. It was a Greens amendment.

The other thing I think is worth saying, because history may forget this, is that there was, I think, a general misunderstanding as to whether changing section 83 of the constitution required a referendum. This was a matter that was subject to some confusion. There were various discussions about the Solicitor-General's advice and would it be made available, but at the end of the day I think the reason the confusion arose was that the clauses concerned—subsection (1) and subsection (3) of section 83—were inserted into the constitution by a bill that had been the subject of a referendum. Therefore, it was assumed that the only way those provisions could be removed was also by referendum.

Regarding the referendum question, if you go back to 1991, the referendum question was very simple: yes or no, 'Do you approve the Constitution (Electoral Redistribution) Amendment Bill, 1990?' That was the question: yes or no? When you have a look at that bill, the 1990 bill, you discover that there were a number of changes being made to the constitution, only some of which required a referendum, while other provisions did not. The provisions that fell within the so-called entrenched positions of the constitution required a referendum, but other provisions did not. In fact, even in relation to entrenched provisions, they do not always require a referendum, unless certain qualifications set out in section 88 are met.

According to the South Australian Parliamentary Research Library, which wrote a report on previous state referendums, I think about 10 years ago—it will be on their website still:

The relevant changes applied to Part V of the Constitution Act (SA) 1934 which cannot be amended without approval at a referendum.

With respect to the library, that is only partly right. Some of the changes required a referendum, but not all. The change that did require a referendum was increasing the frequency of redistributions from every eight years to every four years. That required a referendum, but the additional provisions did not. However, because all the provisions were included in one bill, it made sense to put it to a referendum as one question. Rather than split it up and put the referendum provisions in a separate question and then go straight to parliament for other bits, it made sense to do it all at once. One criterion for having to take it to a referendum is:

…the bill does not: offend against the principle that the state is to be divided into electoral districts each returning the same number…of members to the House of Assembly…

That could be one member or it could be several. This did not infringe that provision, so it did not require a referendum. Another is if it offended:

…against the principle expressed in section 77 of this Act by which the number of electors to be comprised in each electoral district upon an electoral redistribution is to be ascertained.

It did not offend that one either. And it did not offend the principle that:

…an electoral redistribution is to be made by a Commission that is independent of political influence or control.

If it did not offend any of those provisions, it did not need a referendum and therefore this parliament, two years ago, was able to pass the bill that we did.

I think it is worth actually setting that out. Once it became apparent that there was no referendum required, then subsections (1) and (3) of section 83 could be deleted by this parliament. The Greens moved to delete them. Those amendments were supported by the Labor government, the Hon. Kelly Vincent and the Hon. John Darley and they were successful.

In fact, I will go one step further and say that the majority in favour of repealing those provisions could have been even higher because we also had the in-principle support of the Australian Conservatives. Members can go back and look at the Hansard, as I did, but according to the Hon. Dennis Hood the only reason the Conservatives voted with the Liberal opposition was that they had made a commitment to do so, not because they thought it was good policy. They specifically said they were inclined to see the value in what the Greens were trying to do and did eventually succeed in doing.

I just wanted to put those things on the record. The Greens are pleased to have played an historic role in removing an embarrassing and unfair provision from the state's constitution, and we will not be supporting its reintroduction as proposed by the government. We will be opposing this bill, and we will be opposing it at the second reading.

The Hon. C. BONAROS (15:49): I rise to speak in opposition to the Constitution (Electoral Fairness) Amendment Bill 2019. I thank the Hon. Mark Parnell for the comprehensive review of the history of the so-called fairness test. For reasons similar to those outlined by the honourable member, I indicate that SA-Best will also be supporting this bill at the second reading. The bill, we know, seeks to reinstate—

Members interjecting:

The Hon. C. BONAROS: We will be opposing it, rather—sorry, opposing. Mr President, I am not feeling very well, so I apologise. I will just stick to my script. The bill seeks to reinstate in the Constitution Act the so-called fairness clause, which would be new sections 83(1) and 83(3) of the act. That so-called fairness clause, as we have heard, was first inserted under the Bannon Labor government in 1990 and has proved unworkable in many respects.

The architect of the clause, as we have heard, was political scientist Malcolm Mackerras, and its purpose was to impose a proportional representation idea over South Australia's single member electorate system. Section 83(1) basically states that the electoral boundaries commission has to try to structure the boundaries so that if candidates of a particular group attract more than 50 per of the popular vote, then they will be elected in sufficient numbers to enable government to be formed.

While this may be noble and well intentioned, it set the Electoral Commission SA a highly difficult task and one that was not practicable, according to academics. Mackerras himself, as we have heard, has subsequently disowned the clause, labelling it in 2016 as, 'a silly clause...of which I’m not proud…it’s just a silly idea and I should never have entertained it'.

Labor has been accused of sneaking in an amendment to remove the so-called fairness clause during the dying days of the Fifty-Third Parliament, but as we have heard it was the Hon. Mark Parnell who proposed the amendment to the Constitution (One Vote One Value) Amendment Act 2017 to remove the fairness clause and not Labor. He did so for the reasons he has outlined, because the so-called fairness test has always been unfair, particularly to minor parties and Independents. It is at odds with the changing political landscape and a move away from the major parties.

Indeed, the Liberal Party has, over successive elections, bar the last one, claimed the so-called fairness test has failed. It has continually pointed out over and over again that if you do a simple statewide aggregation of a two-party preferred vote—and we know how much this government loves to aggregate—the Liberals would have won the popular vote and won the two-party preferred vote in a majority of seats in the House of Assembly, while Labor got under 50 per cent, but the Liberals still did not win enough seats and so did not form government.

What the government fails to explain is how in 2002 and 2014 Labor was able to form minority government—with the support, of course, of key Independents, the majority of whom were previous Liberal members. Now the Government is seeking to reinstate the so-called fairness clause despite arguing it had never been applied correctly until the last election, an argument which simply defies logic.

In that last election, SA-Best secured 19.4 per cent of the vote in the Legislative Council, which resulted in the election of two members to this place for the first time. It is clear to me that South Australians and Australians more broadly are moving beyond a two-party vision. A quarter of South Australians did in fact vote for SA-Best and the Greens combined, resulting in the strong representation in this chamber of members prepared to put forward ideas the major parties are often too scared to—and who are not bogged down by the factional warfare that plays out in the major parties—to advance matters that benefit all South Australians without fear or favour.

To thwart that through the reinstatement of the so-called fairness clause is, with respect, undemocratic. We on this side of the crossbench—as well as members on the other side, I am sure—know only too well the entrenched unfairness of the so-called fairness test. For these reasons, SA Best will not be supporting the bill nor, indeed, the second reading of the bill.

The Hon. F. PANGALLO (15:54): Fairness is an oxymoron when it is applied to elections, particularly when it comes to the Liberal and Labor parties in this state. They will always whinge about the result of the people's vote, yet their conduct in election campaigns to get those votes is often questionable, unethical and unconscionable, as evidenced in the 2018 poll. I will not venture any further into that today.

This fairness clause was first introduced into the South Australian Constitution Act in 1991 by parliament, rather than by referendum, as part of legislation that required electoral commissioners to draw boundaries that would give the major parties a fair and equal chance of winning government: the two-party preferred vote system, which, of course, is suited to the form of preferential voting that is applied in Australia. With the exception of Tasmania and the ACT, all lower houses in Australia use the single member electoral system.

Preferential voting is unique to Australia and was done to stop parties splitting their votes among several candidates. It meant that the votes of minor parties became quite significant for any of the major parties; however, it also meant that it was more difficult for minor parties or Independents to get elected. Labor removed sections of the act in its Constitution (One Vote One Value) Amendment Act 2017. Now the Liberals want to put it back and point to its 2014 failure and 2018 success as evidence of why it is needed.

For the record, the breakdown of statistics by the Electoral Commission show that in 2018 in the Legislative Council, the Liberals received 32 per cent of first-preference votes, Labor received 29 per cent, SA-Best received 19 per cent and the Greens received 6 per cent. In the House of Assembly, the Liberals received 38 per cent, Labor received 32 per cent, SA-Best received 14 per cent and the Greens received 7 per cent.

As you can see, it is far from 50 per cent for the government. It was a lot closer than most tend to think and I believe this reflects a changing mood in the electorate, which also considers the merits of other political parties and candidates. SA-Best's performance is sometimes referred to as a flop but, on those figures, it shows just how much of a fright the two major parties received and the extent they had to go to in order to prevent us from winning seats in the House of Assembly. We came second in 12 of the 47 seats—not bad for an under-resourced start-up party—but the Liberals want to obliterate other challengers emerging from political discontent.

The 2018 election was essentially shaped by new electoral boundaries, following a Supreme Court ruling that brought into question whether the fairness test had not been fulfilled after the 2014 poll—the so-called unlosable election—where Labor won government yet lost the two-party preferred vote.

The argument about fairness in South Australian elections goes back a long way, even to colonial times. Restricted franchise existed in one house of parliament and in the forties, fifties, sixties and early seventies there was much controversy over malapportionment or vote weighing, particularly in our regional seats, which gave an unfair advantage to the Liberal and Country League. That gerrymander was fixed and since then we have had a mix of Liberal and some long-serving Labor governments.

However, as was shown by the 2002 election result, there is never any guarantee that fairness will prevail. Labor won government with less than 50 per cent of the two-party preferred vote and the addition of the disaffected MP, the then member for Hammond, the late Peter Lewis. Occasionally, the system does throw up results like this after boundary redraws. I am sure parliament will continue to argue about this subject for decades to come unless, of course, members are prepared to look at some kind of reform to our voting system.

There are other systems like multimember systems that are known to produce fairer results, as in New Zealand or Tasmania, which uses the Hare-Clark electoral system where proportional representation elects the lower house made up of 25 members from five electorates and 15 single-member electorates for its Legislative Council. However, reform of our electoral system would only come when there are consistently bad results, and even then there would be a reluctance, particularly in this state, when it would be in the interests of both parties to maintain the status quo.

I note that the Liberal Party's adviser, Morry Bailes, seems to think that new-found fairness is now under threat with a boundary redraw due in 2020 following the repeal of the fairness clause and that it will again be unfair to the Liberals. My cynicism is palpable. It is telling that the architect—as we have already heard—of the so-called fairness clause, at the request, I must point out, of the South Australian Liberals, the renowned political analyst Malcolm Mackerras, now distances himself from it, referring to it as a silly clause he is not proud of and wishes he had not come up with. Respected University of Adelaide professor in politics Clem McIntyre told a commission hearing that the clause was not practicable.

We need to view this for what it is: an irascible move to ensure that only the two major parties will win government, at the expense of smaller political parties. It is not the best solution but bringing this back will be a setback for getting some form of electoral balance. Therefore, SA-Best will be opposing the bill at the second reading.

The Hon. R.I. LUCAS (Treasurer) (16:01): I thank members for their contributions to the debate, although, as I will indicate, I vigorously disagree with each and every contribution, but for differing reasons. Can I say, having been engaged in electoral debates for much, much longer than anybody in this particular chamber, and even prior to being a member of parliament, I know the history of electoral debate and reform in South Australia very well indeed. Whilst I can understand the views of minor parties, I will refer to the arrant hypocrisy of the Labor Party in relation to this issue during my closing remarks.

Over the years, the minor parties, by and large, have argued for a version of proportional representation, as some of them indeed have done again today. In their view of the world, a proportional representation system is a stable, fair system, capable of good government. They are entitled to that view. It is not a view that I share or, indeed, I suspect, many other South Australians would share as well. It is certainly my view that government ought to be based in the lower house, where by and large it is possible to manage a program and, subject to the equal decisions of another chamber, which is the Legislative Council, to have its program debated.

The countless examples from around the world of coalition governments based on PR falling apart on a regular basis, in Europe and Scandinavia and elsewhere, are too many to instance. I can only refer members to the tomes of electoral contributions which have highlighted or detailed those particular examples.

I understand the position of the minor parties. As I said, their view of the world is that a fair system would be a proportional representation system, which in essence would be very similar to the proportional representation system that we have in the Legislative Council. It may or may not be whole of state; it may well be multielectorate, as exists in some parts of the world, but nevertheless based on proportional representation where, by and large, the only government you would ever have would be a coalition government, sometimes with many, many minority interests having to be forged together.

I will return to the contribution of the Hon. Mr Parnell later because he endeavours, in his own inimitable fashion, to say that he and he alone—no, he did not say he alone—will put the facts on the record in terms of what actually happened in 2017, and he will correct the record. He was but one player in that and he has a perspective, which he is entitled to have. I, too, was a player and I will put my perspective in terms of it and at least there will be two competing views as to what actually did happen on that particular day and people cannot just take the Hon. Mr Parnell's record as fact. It is, nevertheless, his view of what occurred; there are other views as to what occurred at that time.

I want to return firstly to the arrant hypocrisy of the Leader of the Opposition and the Australian Labor Party on this particular issue. For 20 or 30 years, well before the Hon. Mr Maher was perhaps even contemplated, Labor luminaries of the past campaigned long and hard against the Playmander, against Sir Thomas Playford and the Liberal government in relation to electoral fairness. What was the device and the mechanism they used? For 20 or 30 years they used the construct of the two-party preferred vote. Even in those days, as members around this chamber have said, 'We almost had six or 12 third parties represented, we almost had this or that,' in many of the elections in those years there were more than six. I think in some cases there were possibly up to 12 Independents not tied to either of the major parties.

However, the Labor Party, Dr Dean Jaensch and various other academics wrote books, gave seminars and campaigned for 20 or 30 years for allocating the second preferences of the Independents. In those days, unlike now where you actually do get a two-candidate preferred vote or a two-party preferred vote counted by the Electoral Commission—so you do actually know what the second preferences of individuals were—that was not done, so assumptions had to be made by both the Labor Party and the academics about the preferences of the Independents.

Through that particular construct, theses were written, approved and lauded around South Australia and Australia on the basis of the two-party preferred vote, the unfairness of the electoral system and, in essence, the lack of a majority on a two-party preferred vote of the Playford era. The one aspect of the complaints in those days with which I do agree was that in those days they did not have the plus or minus 10 per cent, the tolerance factor, which the Labor Party campaigned on as the resolution to the Playmander.

For 20 years they campaigned, to be fair to them, that the solution in terms of one vote one value was not exactly equal numbers, it was to have a quota and, within that quota, the Electoral Commission would have the capacity to have plus or minus 10 per cent as an equivalent to one vote one value. That was the Labor Party argument at the time for decades.

I would not have supported the old system, in terms of the radically different sizes of electorates that existed. I would have supported and do support the plus or minus 10 per cent as being the equivalent of one vote one value, which the Labor Party campaigned for. Nevertheless, putting that to the side, the Labor Party used the construct of the two-party preferred vote to argue that there were minority Liberal governments for so many elections during the fifties and sixties and even the early part of the seventies.

That has been the basis of this debate about the two-party preferred vote. As I said, these days it is more accurate, in that you can actually have constructed a two major party preferred vote because the Electoral Commission throws the second preferences of the other candidates against Labor and Liberal and actually produces a number, which it had not done up until recent years. There is also a two-candidate preferred throw of the vote, which is the two highest remaining candidates, which may be one major party candidate and one of the minor party candidates. So there is greater accuracy these days in relation to the issue.

Whilst I understand the concern of minor party candidates in relation to the two older parties, I have had this discussion with the Hon. Mr Parnell before. It is quaint that he describes himself not as one of the older parties, when the originating Greens go back to the 1960s or 1970s—the first Greens member elected in a jurisdiction under the Greens banner. I am not sure what definition of 'old party' the Hon. Mr Parnell uses, but it is certainly not my definition of a 'new party'. Certainly, SA-Best and others can describe themselves as a new party, although even in this case, given its antecedence with Mr Xenophon—and he was around for over 20 years—at some stage the definitions of 'old party' and 'new party' might need to be revisited.

Members interjecting:

The Hon. R.I. LUCAS: 1997. As I said, I understand the position of the minor parties but, in relation to this issue of the two-party preferred vote and one vote one value, we have had this recreation of history from the Australian Labor Party that in some way something for which they campaigned for decades is that one vote one value meant plus or minus 10 per cent. Yet, the Leader of the Opposition stands up in this chamber today and says that the fact that two of the 47 seats, evidently, just poked out their noses over and above the 10 per cent mark—one at 11 per cent above and I think one at 11 per cent below—as a result of the best endeavours of the Electoral Commission, is in some way a travesty of one vote one value, is hypocrisy at its highest.

There are any number of examples under the former arrangements prior to the fairness clause being inserted by the Labor Party, a Labor government (I continue to emphasise that). Prior to that there were any number of examples, even under one vote one value, which came in and by the time of elections there were many more seats above or below the plus or minus 10 per cent, and significantly above or below the plus or minus 10 per cent under the system they championed, campaigned for and, together with the Hall government, the Liberal opposition and others, helped implement at that particular time. The fact that on this particular occasion two seats at the end just exceeded the plus or minus 10 per cent is certainly much fairer than the system that existed in the sixties, the seventies, the eighties and even in the nineties in terms of the equality of numbers, as opposed to the electoral results.

Another thing that has been quoted left, right and centre is that Malcolm Mackerras has described himself (and others have described him) as the architect of the fairness clause. It is true to say that he was actively engaged in the whole debate, but it overstates the significance of Malcolm Mackerras as an academic adviser to the people who drove the electoral fairness clause. There were many within the Liberal Party in South Australia, some going back many years, but at the time of that particular debate it was the former member for Mitcham (I think the electorate was called then), Stephen Baker, who became deputy premier, and a number of others—and I was part of that particular group—who worked within the Liberal Party in looking at various options in terms of electoral fairness, and that is that, if you won 50 per cent of the two-party preferred vote, as the Labor Party campaigned for for 30 years, then you were entitled to government.

That was their criticism of Tom Playford: that he had not won 50 per cent of the two-party vote, therefore he was not entitled to govern. Those phrases and words were used against the Australian Labor Party at the time and, because of an accident of history, a couple of Independent members in the lower house, who happened to be formerly of the Labor Party, and another mix of votes meant that the then Labor government found itself in a position where the overwhelming majority vote was to support the introduction of a fairness clause. As I said, it was moved by the Labor government at the time. This is the clause which they now say is so inherently unfair. This was a clause actually moved into the legislation by Bannon, and supported by many others, and I quoted some of those in my second reading explanation.

The hypocrisy now of the Labor Party is to say this was unworkable and to quote various other people to say it was unworkable all along the way. As I highlighted in the second reading explanation, it was only unworkable because, as the Full Court decision of the Supreme Court ultimately determined, the previous electoral commissions had not done what the act said they were required to do. The act said that your primary purpose is to deliver government to a party that gets 50 per cent of the two-party preferred vote. All these other things are important but, nevertheless, your primary purpose is to do that, and they had not done that.

The most recent commission did that and, ultimately, had a result which showed that on the two-party preferred vote construct, where you ask people, 'If you cannot have one of the major parties, who is your second choice? Who do you prefer to govern out of Labor or Liberal? You have to choose,' they put that as their second preference, a Labor Party or a Liberal Party candidate, and that is actually added.

Ultimately, there was a majority two-party preferred vote for the Labor Party. Ultimately, there was a small majority number of Liberal members in the House of Assembly elected, contrary to the 2002 election, the 2010 election and the 2014 election, and even back as far as the 1989 election which was what prompted the original insertion of the fairness clause. In broad terms, that is the background. Ultimately, the inadequacy of former commissions was confirmed by the decision of the Full Court of the Supreme Court, and we ended up where we were.

I want to revisit the events of 2017. As I said, the Hon. Mr Parnell is perfectly entitled to his view of the facts of the situation. I have my view and my version of events—and I was actively engaged. I know he quoted Mr Tisato, who he acknowledged and indicated was a Labor Party candidate. I am not sure how he describes himself, but he is certainly a former Labor Party candidate and a wholly owned subsidiary of the Labor Party in many respects.

But why would he be quoting Mr Tisato as an expert on what happened on that particular day? As the Hon. Mr Parnell would know, he was not here and he was not anywhere near the place. He had no idea what was going on. He could only rely on what Labor Party members may have advised him as to what occurred. The Hon. Mr Parnell was here and he is entitled to put his view, and I accept that, but quoting Mr Tisato as some sort of expert as to what happened on that particular day is fanciful nonsense because he would have no idea, with great respect to Mr Tisato, because he was not involved in any way in the discussions that were going on.

Why I described the events of that particular day and the results as a dirty deal—grubby, obnoxious and a whole variety of other unflattering and pejorative words that I used at the time, and I repeat them again in the second reading here—was that, as the Hon. Mr Parnell would know, there had been a number of bills and proposals. I have not checked the record today but I am guessing it was over 12 to 18 months where various people had made various suggestions about amendments to address electoral fairness in its broadest sense, but electoral issues, if I want to put it that way.

Some have not been proceeded with on the basis that there have been ongoing discussions between the Labor Party and the Liberal Party. I was having discussions with members of the Labor Party who were assuring me in relation to various issues. I was having discussions with the Hon. Mr Parnell, with the Hon. Mr Darley, the Hon. Mr Hood and the Hon. Kelly Vincent, I suspect, at that particular time as well.

All through that debate there was a majority of members who assured me that they would not be supporting changes to the electoral fairness clause. What happened on that particular day was that one member, without any forewarning for us, changed their position—which they are entitled to do—and indicated support for what the Labor government was going to do. That was brought on at short notice.

The other thing, again, was that on something as critical as this we had not been privy to an explanation of the Solicitor-General's advice and Crown advice that, from what the Hon. Mr Parnell has indicated, he—and, I suspect, others—had received and been privy to in relation to the issue of a referendum. Most of us had the advice that the fairness clause could not be removed without a referendum, and there was a long debate about that at the time, when we got into the chamber, on what the advice was in relation to that. I think it was the Hon. Mr Malinauskas, who was carrying debate for the Labor government at the time, who outlined what the advice was.

I was handling the bill in the upper house, and that was the first we knew that there had been advice that this did not need to go to a referendum. From the Liberal Party's viewpoint, our advice had been that this needed to go to a referendum and that therefore there was at least some protection in relation to all this, if ultimately the parliament voted that there would be the need for a referendum.

To be fair, in the discussions we had with the Labor Party in the early days, before they got the Solicitor-General's advice, that was their view as well, and the reason they did not proceed down the path they may have been tempted to was because they knew it was highly unlikely they could win a referendum—which was our view as well—on getting rid of the fairness clause.

The reality is that, generally, unless both major parties on both sides support a referendum question it is difficult for a referendum to get up. The Labor Party knew that, from the discussions I had with them. At some stage they got this advice to the contrary. It was not shared with me or with the Liberal Party—

The Hon. M.C. Parnell: We didn't see it.

The Hon. R.I. LUCAS: I did not say you saw it: I said you—and maybe others as well—were advised of the contents of it, but we were not advised of its contents. What happened on that particular day was that, at short notice, the debate was brought on. It is technically correct, and Mr Tisato uses this convenient device, to say this was not actually the Labor Party, that it was a Greens amendment, but the deal had been done by the Australian Labor Party to support the Greens' amendment, with the support of another member or members in relation to crossbenchers, as well, to support the passage of the bill.

Generally, as members and the Leader of the Government would know, from the discussions I have every Monday of a sitting week—even if the numbers are there we have not yet dropped something like this sort of major issue on members at short notice. I have respected the view and the conventions of the council that when you have a major issue like that, people need to have the opportunity to consult their party rooms, however big or small they may be, form a view and, ultimately, for us to have the argument in the chamber.

It might be old school, and maybe the Hon. Mr Parnell and others will say, 'More fool you, because if you have the numbers then surprise the minority and just jam things through.' I have not supported that in my 37 years in this chamber and I do not intend to for the remaining two either. Others may adopt different rules; that is a judgement call for them. On this particular occasion that was the decision adopted: something as major and momentous as this was dropped on the chamber at short notice.

The legal advice was not made apparent to the Liberal opposition. It had been made available to a number of other members who were going to vote on it and, as I said, one particular member, who had given a commitment to me in relation to the way he was going to vote, chose to vote in a different way on that particular issue.

I think it is important to put on the record the history of 2017. As I said and I repeat again, the Hon. Mr Parnell is perfectly entitled to put his interpretation of events because he was here and he has a perspective. However, I can assure the millions of people who read Hansard in the Legislative Council on a regular basis that his version of events is just that: it is his version; it is certainly not the version that I have, which I have put on the public record.

What I do say is that, whilst the Hon. Mr Parnell and I are entitled to put versions of events, commentators like Mr Tisato have no knowledge, no authority and no capacity to actually know the events of what went on. Whether he writes them up and purports to know what occurred on that particular day is a flight of fancy for himself; he is just not in a position to know the events of that particular day.

I am extraordinarily disappointed that the majority of members have indicated that they oppose this provision that is being tested here today and that they will vote down the bill at the second reading. This is an important issue. I hope that the Electoral Commission, if they have to continue to operate under the new act with the new provisions, will at least still bear in mind some of the other aspects of the legislation in terms of continuity.

I know in the past they have indicated that, to the extent that it is possible and they are not restricted by the act, continuity—if I can describe that colloquially as the least possible disturbance that might be required in terms of the constant churn or turnover of members—is something, together with other aspects of the legislation, that they will bear in mind. I am sure that will be a task that they will assiduously apply themselves to.

Nevertheless, it is the government's view that a fairness provision, which was first inserted by the Bannon Labor government, supported by Independents and the Liberal opposition, 20 years or so ago, was misapplied by a number of electoral commissions but then finally correctly applied by the most recent commission. Subsequently, a key part of all that, in essence confirmed by a Full Court of the Supreme Court as a result of Mr Martin's course of action that he adopted, which we are very grateful for, is that all that is evidently to be ignored by the Labor Party and others, who for differing reasons are going to vote against the reinsertion of something that most South Australians, I am sure, would say, 'How on earth can you vote against a fairness clause in an electoral redistribution?'

Indeed, that is what the Labor Party and the crossbenchers are voting for today. They are voting against the insertion of a fairness clause in electoral redistributions in South Australia and, from the government, we say shame on them.

The council divided on the second reading:

Ayes 8

Noes 13

Majority 5