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House of Assembly - Fifty-First Parliament, Third Session (51-3)
2009-09-22 Daily Xml
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CONSTITUTION (REFORM OF LEGISLATIVE COUNCIL AND SETTLEMENT OF DEADLOCKS ON LEGISLATION) AMENDMENT BILL

Committee Stage

In committee (resumed on motion).

(Continued from page 3991.)

Clause 11.

The CHAIR: We were dealing with the amendment moved by the member for Mitchell.

Amendment negatived.

Ms CHAPMAN: This clause provides for a new regime for the settlement of deadlocks. This is a new process that will be achieved by substituting a new section 41 in the Constitution Act. In my second reading contribution I covered a number of concerns that were raised by the Law Society of South Australia, which, through its committee comprising eminent academic and legal minds of the state, highlighted a number of consequences that would flow from this proposal. I regret to note that, in his response, the Attorney does not appear to have answered any of them.

I hope that the government will look at this carefully, because one of the issues raised was that it is all very well to substitute a new regime under the new section 41, which is to be coupled with a regime which still allows a fixed term but which also provides for elections of legislative councillors—all of them—every four years, but under this proposal there appears to be no intention to deal with the current section 28A, which sets out another regime for the early dissolution of the House of Assembly. Again, these are the sorts of things that come about, I suggest to the parliament, when you tinker around with bits of the constitution without understanding some of the consequences that flow on.

One of the concerns that the society raises is not to be judgmental about whether it is a right or an appropriate process to tighten up or change the deadlock procedure but to explain to the parliament that, as a result of doing these things and failing to address them, they can have inadvertent consequences. One of the things the society says is that nowhere in the government's second reading explanation is there any consideration of the effect of the present provisions which allow for the early election of the House of Assembly in resolving deadlocks with the Legislative Council.

The Law Society points out that section 28A remains and that that provides (in terms of the creation of a significant exception to the fixed four-year terms that are enjoyed by members of the House of Assembly at the present time) for the Governor to call an early election if 'a bill of special importance passed by the House of Assembly is rejected by the Legislative Council'. It points out that if the Legislative Council rejects this bill that could be a trigger which would bring this about, that is, an early election for the House of Assembly, and it would also result in elections for half the number of members of the Legislative Council, who would also face an election at the same time pursuant to the provisions of section 14(2) of the Constitution Act.

We would urge the government to understand that there are serious questions that need to be answered about how we will address that aspect, for example, if this bill proceeds through this house, which clearly it will—even if the government forgets to get in all its numbers in time to pass it, it can easily move using its numbers to overcome that problem. We all know that it will get through this house, but the government should understand that the very act of the Legislative Council's rejecting this bill in the upper house can trigger this other procedure. That is something that needs to be considered, as to what will be done about that, and whether that ultimately would be used as a trigger to interfere with the four year term.

The Attorney looks a bit puzzled. I think it is important that he reads the submission from the Law Society and understands that there can be consequences of this and that those matters need to be addressed. It is all very well for the government, on the face of it, to be keen for this reform but it does not seem to be too keen to address some of the answers to serious questions that are raised in the implementation of this measure—not only with respect to its passage, if it does proceed to a referendum after it has gone to the Legislative Council, but even if it is rejected in the other place there could be consequences. What the Law Society is saying is: make sure that you as a parliament understand that this can trigger other opportunities and, therefore, you need to appreciate and be ready for them.

As I said, it does not make a judgment on whether it is appropriate for the parliament to introduce a new section 41 regime. It carefully sets out a number of consequences, even unintended—and I do not know whether the Attorney-General has obtained advice on these matters since he also had a submission from the Law Society or whether he had that advice earlier. We do not know because, of course, he will not table the legal advice that he has. That is fine, but these are serious matters. This is a team of some of the best legal minds that we have to address these issues. They are trying to help us here in the parliament to understand some of these consequences, and it is very disappointing that the Attorney has not even answered any of these issues which have been raised and which clearly will need to be answered.

It is obvious from the statements already made by the Attorney and his approach that he is not in the slightest bit interested in ensuring that we progress this in an orderly manner, which would ensure the appropriate passage of the bill and consider all the consequences and remedy them before it reaches the other place.

I will not hold the committee further on these matters, but I point out that there are problems and the government has had clear notice of them. It may take the view that if it does not ever get through the Legislative Council the whole thing will disappear. It will just blame everyone else but itself. However, sooner or later, as is appropriate, someone may come to look at constitutions, reform and improvements. Instead of demanding that the public take an all or none package, there will be people who will come with considered reform. They will look back at these debates and wonder why the government of the day did not have the interest, it appears, even to traverse these important issues.

Mr HANNA: I want to make a brief contribution in respect of the deadlock provisions, because when I spoke on a previous occasion about these issues I may not have been entirely clear with respect to the sections to which I was referring. So, for my Hansard fans, I want to briefly point out that it is in section 28A and section 41 that we can have an election due to the upper house blocking a bill. Section 28A states that if a bill of special importance passed by the House of Assembly and deemed to be a bill of special importance is rejected by the upper house then we can have a general election of the House of Assembly as a result, and the Attorney-General has pointed out his objections to that.

The other provision, section 41, allows for an election of both houses to be called once a bill is repeated, with an intervening general election, and that might be seen as more equitable from the government's point of view. However, either way, you have those two provisions that allow for the overcoming of a deadlock between the two houses.

The Hon. M.J. Atkinson: I'd rather fly to the moon.

Mr HANNA: The Attorney-General says that he would rather fly to the moon, but I think his destination might be rather different in the long term. The point is really to go back to the need for ever using those provisions. As I have pointed out, the upper house is not the house of obstruction the government paints it to be.

The Hon. M.J. ATKINSON: Let us be clear: there is no adjustment or amendment or inquiry or legal advice on which the government can embark that will make the parliamentary Liberal Party and the minor parties support this bill. The member for Bragg's objections, and those of the Law Society, are of no merit. They are introduced to lengthen the debate and to obstruct the reform. So, if there were any point in trying to engage with the parliamentary Liberal Party I would gladly do it, but there would be no reward at the end.

Clause passed.

Remaining clause (12), schedule and title passed.

Bill reported without amendment.

Third Reading

The Hon. M.J. ATKINSON (Croydon—Attorney-General, Minister for Justice, Minister for Multicultural Affairs, Minister for Veterans' Affairs) (16:42): I move:

That this bill be now read a third time.

The DEPUTY SPEAKER: This bill seeks to alter the constitution of a house of the legislature. In accordance with section 8 of the Constitution Act 1934 and standing order 242, it is necessary that both the second and third readings of the bill be passed by an absolute majority of all the members of the house. Ring the bells.

An absolute majority of the whole number of members being present:

The SPEAKER: I put the motion. There being a dissenting voice, there must be a division.

The house divided on the third reading:

AYES (25)
Atkinson, M.J. (teller) Bedford, F.E. Bignell, L.W.
Breuer, L.R. Caica, P. Ciccarello, V.
Conlon, P.F. Fox, C.C. Geraghty, R.K.
Hill, J.D. Kenyon, T.R. Key, S.W.
Koutsantonis, A. Lomax-Smith, J.D. O'Brien, M.F.
Piccolo, T. Portolesi, G. Rankine, J.M.
Rann, M.D. Rau, J.R. Stevens, L.
Thompson, M.G. Weatherill, J.W. White, P.L.
Wright, M.J.
NOES (16)
Chapman, V.A. (teller) Evans, I.F. Goldsworthy, M.R.
Griffiths, S.P. Gunn, G.M. Hamilton-Smith, M.L.J.
Hanna, K. Maywald, K.A. McEwen, R.J.
McFetridge, D. Pederick, A.S. Penfold, E.M.
Pengilly, M. Redmond, I.M. Venning, I.H.
Williams, M.R.
PAIRS (2)
Simmons, L.A. Pisoni, D.G.

Majority of 9 for the ayes.

The SPEAKER: There being 25 ayes and 16 noes, the third reading is carried by an absolute majority.

Third reading thus carried.

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