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

Standing Orders Suspension

The Hon. I.F. EVANS: Mr Speaker, I rise on a point of order in relation to standing order 242 and your previous advice to the house, which I understood to be that an error had been made because the second reading should have been—or, in essence, had to be—carried. Standing order 242(3) provides:

If the question is carried by less than the absolute majority of all the members of the house, the bill is read a second or third time, as the case requires…

As the vote was 23 to 9 and did not reach the absolute majority of 24, the second reading was dealt with 'as the case requires' because it was lost. So, no error was made. Sir, I seek clarification on how you can advise the house that an error was made when clearly the second reading was dealt with 'as the case requires', because we did not reach the constitutional number of 24. I believe that your previous advice to the house was wrong, sir, and I seek clarification.

The SPEAKER: It is kind of the member for Davenport to reassure me that, when I thought I was wrong, in fact I was not. However, I assure him that I was wrong. 'As the case requires' refers to whether it be the second reading or the third reading. That is all it refers to.

The Hon. I.F. EVANS: Now I am confused regarding what you told us previously, sir. Were you correct in declaring the second reading lost?

The SPEAKER: No; it is quite clear from standing order 242 that the second reading was carried, and the bill should have been allowed to be read a second time. It was not negatived. I said that it had been negatived, but that was incorrect. It had not been negatived; it just had not obtained the absolute majority required for it to proceed.

The Hon. I.F. EVANS: So if the vote had been one in favour and everyone else against—

The SPEAKER: Then the motion would have been lost and it would not have been read a second time.

The Hon. I.F. EVANS: But the bill would still have been read a second time.

The SPEAKER: No.

The Hon. I.F. EVANS: Well, how is it—

The SPEAKER: Order!

The Hon. I.F. EVANS: What I am trying to clarify, sir, is whether it reached a constitutional majority.

The SPEAKER: I will explain it one more time for the purposes of the member for Davenport and, if he is still confused, could he please come up to the chair; we do not need to delay the whole house by going over it in detail. Standing order 242 explains what happens in the case of a constitutional amendment where the second reading is agreed to but does not obtain the absolute majority that is required. In that case it says that the bill is read a second or third time 'as the case requires', meaning a second or third time, but is not proceeded with further—

An honourable member interjecting:

The SPEAKER: Yes, and cannot be revived. That is presumably why the motion to rescind is being moved by the Attorney. In fact, he has not even reached that stage; he has simply moved for the suspension of standing orders. Are there any other speakers to the motion?

Mr HANNA: Mr Speaker, this is not the suspension of standing orders motion.

The SPEAKER: This is the motion to suspend standing orders. There being no further speakers, I will put the motion.

The house divided on the motion:

AYES (26)
Atkinson, M.J. (teller) Bedford, F.E. Bignell, L.W.
Breuer, L.R. Caica, P. Ciccarello, V.
Conlon, P.F. Foley, K.O. Fox, C.C.
Geraghty, R.K. Hill, J.D. Kenyon, T.R.
Key, S.W. Koutsantonis, A. Lomax-Smith, J.D.
McEwen, R.J. O'Brien, M.F. Piccolo, T.
Rankine, J.M. Rann, M.D. Simmons, L.A.
Stevens, L. Thompson, M.G. Weatherill, J.W.
White, P.L. Wright, M.J.
NOES (11)
Chapman, V.A. Evans, I.F. Goldsworthy, M.R.
Griffiths, S.P. Gunn, G.M. Hanna, K.
Penfold, E.M. Pisoni, D.G. Redmond, I.M. (teller)
Venning, I.H. Williams, M.R.
PAIRS (6)
Maywald, K.A. McFetridge, D.
Portolesi, G. Hamilton-Smith, M.L.J.
Rau, J.R. Pederick, A.S.

Majority of 15 for the ayes.

Motion thus carried.

Second Reading

The Hon. M.J. ATKINSON (Croydon—Attorney-General, Minister for Justice, Minister for Multicultural Affairs, Minister for Veterans' Affairs) (23:50): I move:

That the vote on the second reading of the Constitution (Reform of Legislative Council and Settlement of Deadlocks on Legislation) Amendment Bill be rescinded owing to its being a bill to alter the constitution of a house of the legislature and, as required by section 8 of the Constitution Act 1934, must gain the concurrence of an absolute majority of members of the house.

Mr VENNING: Mr Speaker, I have a point of clarification. Does this mean that, when recommitting the bill, we will start the bill again, or will we go on from where we left off?

The SPEAKER: No, it does not. There being an absolute majority of members present I accept the motion. Is it seconded?

An honourable member: Yes, sir.

The SPEAKER: Does the Attorney-General wish to speak to the motion?

The Hon. M.J. ATKINSON: Yes, sir. It is interesting that the rescission of a vote on a bill has occurred many times in the 19 years that I have been a member of the house. My recollection is that it has occurred most often when the Liberal Party has been in government. I will give two examples. On 5 August 1999, the votes and proceedings of the house record at No. 31 that a minister, the Hon. R.L. Brokenshire, moved the rescission of the third reading of the Emergency Services (Funding) (Miscellaneous) Amendment Bill, presumably because it was convenient for the then Olsen government to do so.

Ms CHAPMAN: I rise on a point of order, sir. Not only is this information irrelevant but the Attorney is making presumptions about what the basis of the change was.

The SPEAKER: Order! There is no point of order.

Ms Chapman interjecting:

The Hon. M.J. ATKINSON: The opposition mucked up back in 1999, did we, on the emergency services bill? I do not think so. My personal favourite occurred on 9 July 1998. Item No.28 of the votes and proceedings shows that a minister moved rescission of the third reading of the police bill. That would have been the then minister for police, correctional services and emergency services, none other than the Hon. I.F. Evans, the member for Davenport.

Members interjecting:

The SPEAKER: Order!

The Hon. M.J. ATKINSON: There is ample precedent for rescinding the vote on a bill. I would think that these bills were rescinded a greater length of time after the vote than is the case tonight. What we are seeing here is that the Liberals spend much of their time fighting each other and playing games. Let us fix it up and resume consideration tomorrow.

Mrs REDMOND (Heysen—Leader of the Opposition) (23:53): I cannot believe what I have seen here tonight. Here we have a government—

Members interjecting:

The SPEAKER: Order!

Mrs REDMOND: —in such disarray that it cannot even manage its own business in this house.

Members interjecting:

The SPEAKER: Order!

Mrs REDMOND: The Attorney-General has the audacity to stand up and say that he does not think that his government has done any recommittals. I can tell the house that there was one, and I can tell members when it was. It was during Wagner's Ring cycle, and I was not able to go to that because I was here as a result of a recommittal by members opposite. The fact is that this is a government in total disarray. We have already had the Treasurer get up today and tell us that he has allowed the Motor Accident Commission to get to the point where it is no longer solvent.

The Hon. M.J. ATKINSON: I rise on a point of order, sir. I am not quite sure how the Motor Accident Commission is joined up to a rescission motion on a constitutional bill.

Members interjecting:

The SPEAKER: Order! I will listen to the Leader of the Opposition. If she is straying, I will pick her up.

Mrs REDMOND: The connection is ample demonstration to the house of the inadequacy of this government in the management of anything, even the management of the house itself on its own bill. The Attorney tried to make the point that other bills had been recommitted and, indeed they have, but not—

The Hon. K.O. Foley interjecting:

The SPEAKER: The Deputy Premier is out of his seat.

Mrs REDMOND: —constitutional bills.

The Hon. M.J. Atkinson interjecting:

The SPEAKER: The Attorney-General will come to order!

Mrs REDMOND: There is a specific clause we have already referred to, a specific standing order (242) that deals with constitutional bills and the procedure that applies. It states quite clearly that as soon as the debate is concluded (which it was) on the second or third reading (and we will read that as the second reading because that is what it was) of a bill to alter the constitution of either house of the legislature (and it was a bill to alter the constitution of the Legislative Council), the bells are rung for three minutes (which they were) before the question for the second reading from the bill is put from the chair. The Speaker counts the house (which he did). If the question is carried—

Members interjecting:

The SPEAKER: Order, or I will vacate the chair! The Leader of the Opposition deserves the opportunity to be heard.

Mrs REDMOND: The third component is that, if the question is carried by less than an absolute majority of all members of the house (which it was), the bill is read a second time but is not further proceeded with and may not be revived during the same session. Ipso facto, we should not even be here discussing this.

The Hon. M.J. Atkinson: It wasn't read a second time.

Mrs REDMOND: Yes, it was.

The SPEAKER: Order!

The Hon. K.O. Foley interjecting:

The SPEAKER: The Deputy Premier will come to order!

Mrs REDMOND: The Deputy Premier wants to try to excuse the fact that—

Members interjecting:

The SPEAKER: Order! If there are any further interjections, I will vacate the chair.

Mrs REDMOND: So, I point out that this recommittal is a very separate case to any other recommittal the Attorney may have been referring to. The bills he referred to were simple bills before the house—government bills—and there was a recommittal of various things for whatever reason and from whichever side. This is a bill to change the constitution. A specific standing order applies to it, and I have just read out the details of it. All those things happened, and it certainly says that it is not further proceeded with and may not be revived during the same session.

I put to you, sir, and to the house, that it is therefore inappropriate for you to accept a motion for the recommittal of that bill. It has already been dealt with, and it should not be further dealt with. My view of this is that there is probably a conspiracy going on amongst the rabble on the other side because some of them really do not want this to go ahead—and some of them are mates with some in the upper house—and they actually want to thwart this bill.

Nevertheless, the Premier does not want it thwarted and, boy, is there going to be a bunfight in the caucus room tomorrow over what has gone on here tonight, over who was not here without permission and over who had a pair and who did not. The fact is that the government has a responsibility to have the house in order. It is its responsibility, and not the opposition's. We were here in sufficient numbers for this bill to be dealt with. It had its vote, and it need go no further and, indeed, can go no further pursuant to standing order 242.

The house divided on the motion:

AYES (26)
Atkinson, M.J. (teller) Bedford, F.E. Bignell, L.W.
Breuer, L.R. Caica, P. Ciccarello, V.
Conlon, P.F. Foley, K.O. Fox, C.C.
Geraghty, R.K. Hill, J.D. Kenyon, T.R.
Key, S.W. Koutsantonis, A. Lomax-Smith, J.D.
Maywald, K.A. McEwen, R.J. O'Brien, M.F.
Piccolo, T. Rankine, J.M. Rann, M.D.
Simmons, L.A. Stevens, L. Thompson, M.G.
Weatherill, J.W. White, P.L.
NOES (11)
Chapman, V.A. Evans, I.F. Goldsworthy, M.R.
Griffiths, S.P. Gunn, G.M. Hanna, K.
Penfold, E.M. Pisoni, D.G. Redmond, I.M. (teller)
Venning, I.H. Williams, M.R.
PAIRS (6)
Rau, J.R. Pederick, A.S.
Wright, M.J. Hamilton-Smith, M.L.J.
Portolesi, G. McFetridge, D.


Majority of 15 for the ayes.

Motion thus carried.


The SPEAKER: The vote on the second reading of the bill be taken into consideration, minister?

The Hon. M.J. ATKINSON: Forthwith, sir.

The SPEAKER: 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 members of the house—in case we did not already know that.

Mr HANNA: Sir, I rise on a point of order. Notwithstanding the vote we have just taken, the fact is that standing order 242 clearly says that the bill shall not be proceeded with after certain things have happened. Those things happened: they cannot be taken back. It is a situation that cannot be remedied by a vote of the house because the standing orders in force at the time say that that bill cannot be proceeded with. It is not as simple as standing order 159, which says a further question cannot be put. It specifically refers to the constitution. So, these proceedings are not valid in relation to this bill and I urge you, Mr Speaker, to rule accordingly.

The SPEAKER: The house is the master of its own destiny, and the standing orders themselves are a creation of the house. The house, subject to the requirements of the constitution, can suspend those standing orders by an absolute majority. That is what it has done, and it is not a course of action available to the chair to defy the will of the house. The chair is the mere servant of the house.

Mr HANNA: Sir—

The Hon. K.O. FOLEY: Point of order, Mr Speaker.

Mr HANNA: —I have a procedural motion.

The Hon. K.O. FOLEY: No; I take precedence, Mr Speaker. The Leader of the Opposition just made an accusation across the chamber that the chair is the servant of the government. I would ask the leader to withdraw that remark.

Mrs Redmond interjecting:

The Hon. K.O. FOLEY: The leader has just asked me to test it. I will test it. The Leader of the Opposition just said that the Speaker of the parliament is a servant of the government. I ask her to stand, withdraw and apologise, otherwise we will test it.

Mr PISONI: I rise on a point of order, sir. Can we check with Hansard—

The SPEAKER: The member for Unley will take his seat.

Members interjecting:

The SPEAKER: Order! I did not hear the remark of the Leader of the Opposition. If she did say that, it is a reflection on the chair and I invite her to withdraw.

Members interjecting:

The SPEAKER: Order! I will take the Leader of the Opposition's word for whether she said it or not. If she says she did not say it, I will believe her.

Mrs Redmond interjecting:

The SPEAKER: Order! She did not say it.

Members interjecting:

The SPEAKER: Order! Did the Leader of the Opposition make a reflection upon the chair?

Mrs REDMOND: Yes, sir.

The SPEAKER: Then you must withdraw the reflection.

Mrs REDMOND: Sir, I withdraw the reflection.

The Hon. K.O. Foley: So, you said it?

The SPEAKER: Order! The motion before the house is that the bill now be read a second time. I will put the question. Those in favour—

Mr HANNA: And I am saying you cannot do it, sir.

The SPEAKER: I have already made a ruling on that.

Mr HANNA: The problem is that this never should have happened. All they are trying to do is cover up a mistake that they have made, and the purpose of the standing orders is not to do that.

The SPEAKER: Order! A motion has been moved by the Attorney-General. I propose to put the motion and members can vote accordingly.

Mr HANNA: I urge you not to do that, sir.

The SPEAKER: I thank you for your urgings, but the member for Mitchell will take his seat.

Mr Hanna interjecting:

The SPEAKER: The member for Mitchell will take his seat.

Mr Hanna interjecting:

The SPEAKER: The member for Mitchell will take his seat.

Mr Hanna interjecting:

The SPEAKER: The member for Mitchell will take his seat and stop defying the chair.

Mr Hanna interjecting:

The SPEAKER: The member for Mitchell will take his seat.

Mr Hanna interjecting:

The SPEAKER: The member for Mitchell will take his seat.

Mr Hanna interjecting:

The SPEAKER: The member for Mitchell will take his seat. I now put the motion. There being dissenting voices, the house must divide.

The house divided on the second reading:

While the division was being held:

Mr HANNA: Mr Speaker, while the bells are ringing, I point out that you did not, as required by standing order 242, count the number of members before putting the question. So, again, I say that this will not be a valid vote on the bill. That is another reason why it should not be presented to the upper house and it should not be presented to His Excellency the Governor.

Mrs REDMOND: I have a point of clarification, sir. The member for Mitchell raises what I think is a very good point. I would have thought that you have to rule on whether there is a valid commencement on this particular part. Mr Speaker, it seems to me that, in order for it to be put beyond question, you need to redo what you have just done.

The SPEAKER: I had only counted the house moments before. The bells had been ringing. It will be quite clear from the division whether or not there is an absolute majority of members present in support of the motion.

Mrs REDMOND: But, sir, the standing order clearly says that you have to count the house.

The SPEAKER: That is my ruling. There is a division in progress.

Mrs REDMOND: I dissent from that ruling, sir.

The SPEAKER: We have to conclude the division first.

Mr Hanna interjecting:

The SPEAKER: I am not entertaining any more points of order until we have concluded the division. I am not interested, member for Mitchell.

Mr Hanna interjecting:

The SPEAKER: I am not interested, member for Mitchell. We are in the process of a division.

Mr Hanna interjecting:

The SPEAKER: The member for Mitchell can take his seat.

AYES (25)
Atkinson, M.J. (teller) Bedford, F.E. Bignell, L.W.
Breuer, L.R. Caica, P. Ciccarello, V.
Conlon, P.F. Foley, K.O. 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. Rankine, J.M.
Rann, M.D. Simmons, L.A. Stevens, L.
Thompson, M.G. Weatherill, J.W. White, P.L.
Wright, M.J.
NOES (13)
Chapman, V.A. Evans, I.F. Goldsworthy, M.R.
Griffiths, S.P. Gunn, G.M. Hanna, K.
Maywald, K.A. McEwen, R.J. Penfold, E.M.
Pisoni, D.G. Redmond, I.M. (teller) Venning, I.H.
Williams, M.R.
PAIRS (4)
Portolesi, G. Hamilton-Smith, M.L.J.
Rau, J.R. Pederick, A.S.

Majority of 12 for the ayes.

Second reading thus carried.

Committee Stage

In committee.

Clause 1.

Mr HANNA: There is an issue here.

The Hon. M.J. Atkinson: Yes, I thought there would be.

Mr HANNA: Sorry, what was the Attorney-General's point?

The CHAIR: Order! The member for Mitchell will address the chair.

Mr HANNA: Yes; and the Attorney-General will not interject, I am sure, Madam Chair. I foreshadow that I do have amendments in relation to this legislation and, when I explain them, members will see the relevance to the first clause of the bill. The fact is that, as we have already said, the bill contains a mixture of basically four different propositions. One of them is quite popular in the community, one of them was favoured by the Constitutional Convention of 2003 and one of them I support. I know that there is support from many other members in the chamber for the notion that the upper house should have just four-year terms.

I object to the other three elements of the bill. They are: first, to reduce the number of members of the upper house; secondly, to give the president of the upper house an extra vote, that is to say, a deliberative vote, as well as a casting vote; and, thirdly, there is an elaborate deadlock provision which seems to have been inspired by the Senate's deadlock procedures.

As I have already indicated, not supporting those things but wishing one part of the bill to be carried through, there are a couple of options for members. One option is to vote against it at the second reading. For example, the member for Mount Gambier and the member for Chaffey did that, and I respect that point of view. Even if they favoured some elements and not others, I can understand why someone would wish to vote against the second reading outright. However, I took the view that, because I strongly favour one of the elements of the bill and not the other three, I should support the second reading of the bill and move an appropriate amendment so that, by the time it leaves this place, it has only that one proposition.

Members will note that there is an amendment in my name, and that amendment will be necessary if the proposition that the upper house should have four year terms is accepted by a majority of members in this house. We will have a debate about that when we get to the clause but, at this point, I need to foreshadow that the name of the bill will not be appropriate should the view that I am putting be accepted by a majority of members. Obviously, if I had my way, the bill would not contain a provision dealing with the settlement of deadlocks, and that is part of the current title of the bill.

The Hon. M.J. Atkinson interjecting:

The CHAIR: Attorney, it would be useful if you would just listen in silence. The member for Mitchell.

Mr HANNA: I note that the current name of the bill refers to 'reform of Legislative Council and settlement of deadlocks on legislation', which are the words in the brackets in the formal title of the bill. I presume that, if the only remaining element of legislation after this house as a committee of the whole has dealt with it is that element which would stipulate a four year term for the upper house, we would probably just have 'reform of the Legislative Council' or 'reform of Legislative Council' or, indeed, 'four year terms for the Legislative Council', or something of that nature. I am not too fussed; perhaps that is a matter of negotiation about the precise wording. However, we certainly would not need the wording to stay as it is now.

I am not opposing the clause, but I do indicate that it would need to be recommitted if, indeed, the other three objectionable parts are knocked out and we are left with the proposition of the four year terms.

The Hon. K.A. MAYWALD: I rise to put the position of the National Party on the table and the reasons for opposing the second reading of the bill, and that is simply because the bill requires that the referendum questions will include all four components of the reform the government proposing and the National Party does not support all of them.

The National Party does support the reduction in the term from eight years to four years. The National Party has some concerns about the number being dropped from 22 to 16, but we would be happy to support that. However, we have great concerns about the issues for the settlement of deadlocks, and we will not be supporting those provisions, and the National Party does not support the other component in this bill, either.

To make it clear, there are reforms of the upper house that the National Party would like to see. We are concerned that a reduction in the number of members to 16 might be a little bit low, but we are happy to accept that one. We would be very supportive of four year terms and, if they were to be separated and voted on separately, we would be supporting those two measures but not the other two.

Mr HANNA: I want to make the point that, although I will join in the debate on these clauses, in a sense, I do so under protest; and I should not want it to be thought in acquiescence in the legitimacy of this bill.

Clause passed.

Progress reported; committee to sit again.

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