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House of Assembly - Fifty-First Parliament, Third Session (51-3)
2009-07-16 Daily Xml
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CONSTITUTION (REFORM OF LEGISLATIVE COUNCIL AND SETTLEMENT OF DEADLOCKS ON LEGISLATION) AMENDMENT BILL

Introduction and First Reading

The Hon. M.J. ATKINSON (Croydon—Attorney-General, Minister for Justice, Minister for Multicultural Affairs, Minister for Veterans' Affairs) (15:51): Obtained leave and introduced a bill for an act to amend the Constitution Act 1934. Read a first time.

Second Reading

The Hon. M.J. ATKINSON (Croydon—Attorney-General, Minister for Justice, Minister for Multicultural Affairs, Minister for Veterans' Affairs) (15:52): I move:

That this bill be now read a second time.

In recent years it has been ALP policy to support our bicameral parliamentary system, and to investigate the reform of the other place. In November 2005, the Premier announced the government's intention to seek the views of the South Australian voters at the 2010 general election through a referendum. The reforms suggested were reducing the tenure of members of the other place from eight years to four years, reducing the number of members of the other place from 22 to 16 and having all members stand for election at the same time. In honouring that pledge I have had bills drafted that will enable the voters to choose whether they want to reform the other place in this way and also substitute a better procedure for dealing with deadlocked bills, or to keep the status quo.

The bill I introduce today, together with an accompanying bill for holding a referendum, is for the purpose of achieving that. The referendum would be held at the next general election in March 2010. I seek leave to have the remainder of the second reading explanation inserted in Hansard without my reading it.

Leave granted.

This Bill would amend the Constitution Act 1934 to achieve the reforms of reducing the number of Members of the Legislative Council to 16 and reducing the terms of M.L.C.s to four years coinciding with the terms of Members of the House of Assembly.

In addition, it would replace the current deadlock provision, which is so cumbersome that it is not used. The new provision is based on the equivalent in the Commonwealth Constitution, although there is an important difference in that it will be for the House of Assembly to determine whether the position the Legislative Council has taken on the deadlocked Bill should result in a double dissolution and general election.

At present, the President of the Legislative Council has only a casting vote. Since 1973 the President has also been able to indicate his concurrence or nonconcurrence in the passing of the second and third reading of a Bill to alter the Constitution Act. This Bill would give the President a deliberative vote on all questions, instead of only a casting vote and the very occasional and limited opportunity to indicate concurrence or nonconcurrence.

The Bill as introduced could not come into operation unless first it is passed by an absolute majority of both Houses of Parliament and then approved by South Australian electors at a referendum.

This means that the general election to be held in March 2010 will be conducted according to the provisions of the Constitution Act as it now stands. Eleven Members of the Legislative Council will retire and there will be an election to fill eleven seats. Those eleven Members will be elected for terms of eight years. However, if the electors approve the reforms, all the Members of the Legislative Council will retire at the general election in 2014, or at any earlier general election. At that election there will be only 16 seats to be filled.

If the Bill is approved by the electors, the new deadlock procedure would come into force on the Bill receiving the Governor's Assent. This would be soon after the results of the referendum are known.

The deadlock provision—section 41 of the Constitution Act—is entrenched. To alter or repeal it, there must be a Bill passed by an absolute majority in each House of Parliament and then the Bill must be approved by the electors in a referendum.

If the proposed reforms of the Legislative Council are approved, they would be irreconcilably inconsistent with section 41. At the least, section 41 would have to be substantially amended. So, a referendum on this Bill will be necessary for legal constitutional reasons, as well as because it has been promised.

If these Bills are passed by absolute majority, the referendum will be held at the next election in March 2014.

Mr Speaker, while these reforms are very significant ones, the concept of change to the Legislative Council is not, of course, new. The Opposition proposed similar changes in 2000. The Government looks forward to its support.

I commend this Bill to the House and seek leave to have the remainder of the second reading explanation inserted in Hansard without my reading it.

Number of Members of the Legislative Council

Since proclamation of the Province of South Australia on 28 December 1836 under the South Australian Colonisation Act 1834, the composition of the Upper House in South Australia has been changed on a number of occasions. The number of Legislative Councillors has fluctuated from 18 to 24. From 1857 to 1881 there were 18 Members. From 1881 to 1901 there were 24. From 1901 until 1913 there were again 18 Members. From 1913 to 1973 there were 20. Since 1973 there have been 22.

The Opposition's response to this proposed reform, to date, appears to be to claim that there will not be enough Members to do all of the work. This is to miss the point entirely. The message that this Government has received from the public is that there is a good deal of make-work going on, and that Members in the other place are justifying their existence by setting up a committee to examine everything under the sun.

In the other place, a desire by our business and community leaders to seek to have Government policy coherently reflected in legislation was described as the Government 'jamming its program unmolested through Parliament'. I think molestation of the legislation is a very apt description for the other place's contribution to the Government's legislative agenda.

Clearly, if there is to be a house of review there needs to be a workable solution for impasses. A deadlock resolution provision was inserted into the Constitution Act in 1881. It requires the dissolution of both Houses and fresh elections, or the election of two additional Legislative Councillors. It has never been used. It would be difficult to imagine the circumstances, today, in which it would be responsible for a Government to put the State to such expense and inconvenience, however clear the mandate was for a particular law. Labor attempted to change it in 1966 but failed in the Legislative Council. The State needs a modern and realistic mechanism for dealing with deadlocks. The Government has devised such a mechanism. A further forty years has passed and that is enough.

Under the Reform Bill, the mechanism involves these steps.

A Bill, within 45 sitting days from transmission to the other place, is rejected or not passed in that other place, or amendments are proposed that are rejected in this place.

The House again re-passes the Bill after a three-month interval and it is again rejected by the other place, or amendments are proposed that are rejected by the House within 30 sitting days.

The House may then resolve that it is appropriate for both Houses to be dissolved on account of the position taken by the Legislative Council on the Bill.

If the House so resolves, then His Excellency the Governor dissolves both Houses, provided it is not within 6 months of a general election.

Following the election, this House again passes the Bill.

Within 30 days of transmission, it is again rejected in the other place.

His Excellency the Governor may then proclaim a joint sitting of both Houses.

The Bill is passed by an absolute majority of the total number of the members of both Houses voting together.

The Bill may then be presented to His Excellency the Governor for assent.

This mechanism is similar to that operating at the Commonwealth level. It gives the other place several opportunities to consider and negotiate on a Bill without what is effectively, today, a right of veto. This is far closer to the proper review character of a second chamber than the model we have today.

If the Reform Bill is approved by the electors it will be presented to His Excellency the Governor for assent immediately, but the reduction in the number of Members will take effect from the 2014 election or any earlier general election. This delay is necessary to accommodate the staggered nature of the terms of members of the Legislative Council. The new four year terms will start immediately. There will be no special provisions for the six who miss out on a seat at the 2014 general election because of the reduced size of the Council. In other words, the incumbents—including any who have just won a seat at the 2010 election—will all continue to sit until 2014 but at that point all of the seats will become vacant and subject to election.

Explanation of Clauses

Part 1—Preliminary

1—Short title

This clause is formal.

2—Commencement

The measure will need to be submitted to a referendum under the proposed Referendum (Reform of Legislative Council and Settlement of Deadlocks on Legislation) Act 2009. (If this measure does take effect as an Act, the sections relating to a reduction in the number of members of the Legislative Council, and the term of office of members of the Legislative Council, will come into operation immediately before writs are issued for the first general election of members of the House of Assembly next ensuing after assent.)

3—Amendment provisions

This clause is formal.

Part 2—Amendment of Constitution Act 1934

4—Repeal of section 10

Section 10 of the Act must be repealed by virtue of the scheme proposed by new section 41.

5—Substitution of section 11

From the commencement of this provision, the Legislative Council will consist of 16 members.

6—Amendment of section 13—Casual vacancies

These amendments are consequential by virtue of clause 7, which proposes that all members of the Legislative Council will retire whenever the House of Assembly is dissolved or expires.

7—Substitution of sections 14 and 15

The term of a member of the Legislative Council is a term expiring on the dissolution or expiry of the House of Assembly. A Legislative Council election will then take place whenever there is a general election for the House of Assembly.

8—Amendment of section 25—Continuance of President in office after dissolution or retirement

This clause is consequential on clause 7.

9—Amendment of section 26—Quorum of Council

This clause contains a consequential on clause 5. It is also proposed to amend the Act so that the President will have a deliberative vote on any question before the Council but will not have a casting vote. In the event of an equality of votes, the question will be lost.

10—Amendment of section 38—Privileges, powers etc of Council and Assembly

This clause is consequential on clause 11.

11—Substitution of section 41

This clause sets out a new scheme with respect to the settlement of deadlocks between the House of Assembly and the Legislative Council. It is based on the scheme under section 57 of the Commonwealth of Australia Constitution Act. Essentially, the scheme provides for a double-dissolution trigger if a particular Bill is rejected on 2 occasions by the Legislative Council, taking into account some specified time periods and other related requirements, and then for a joint sitting if the Bill is rejected on a third occasion following the ensuing general election.

12—Amendment of section 57—Restoration of lapsed Bills

This clause is related to the operation of clause 11.

Schedule 1—Transitional provisions

All members of the Legislative Council will be required to retire immediately before writs are issued for the first general election of members of the House of Assembly next ensuing after assent (taking into account the requirement for a referendum before assent). The new deadlock provisions will only apply in relation to Bills introduced into the Parliament after the commencement of this measure.

Debate adjourned on motion of Hon. I.F. Evans.

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