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House of Assembly - Fifty-Third Parliament, Second Session (53-2)
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Constitution (Deadlocks) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 15 October 2015.)

Ms CHAPMAN (Bragg—Deputy Leader of the Opposition) (12:32): I rise to speak on the Constitution (Deadlocks) Amendment Bill 2015 which, again, was presented to the parliament with a bill titled Referendum (Deadlocks) Bill 2015 by the Attorney-General on 15 October last year at the same time as the bill that we have just considered was presented with its second reading contribution.

Essentially, this is a bill which provides for the Constitution Act 1934 to be amended to introduce a new system—new mechanism, according to the government—to resolve what they have described as persistent disagreements between the Legislative Council and the House of Assembly, what is otherwise known as a deadlock conference process which currently prevails when the houses disagree. Ultimately, if unresolved at that stage, the bill that is under consideration can then lapse. The government propose that we should have a new system in line with what they argue is effective and successful in the federal parliament.

The effect of the bill—if passed, and with the referendum bill process undertaken successful—would be to reduce the Legislative Council, and, in particular, its powers. The Constitution Act, in particular section 41, under the new mechanism, provides that if a bill is passed by the Assembly twice—once before and once after a general election—and is twice rejected by the Legislative Council, then a double dissolution can be called. For the record, there has never been a double dissolution in South Australia.

The bills introduce in this new deadlock mechanism, modelled on the commonwealth constitution, a brand new approach. If it is successful in the commonwealth arena one would have to ask two questions: first, what is deficient about the system we operate and have operated for over 150 years now, and, secondly, is there something that is superior in the federal structure for which we should advocate in reform of our own chambers to provide a better system?

Let us look first at whether there has been any failure. I think it is fair to say that the government's argument is that if these pesky houses of review—called the Legislative Council in our state—are going to interfere with the unrestricted progress of what the government of the day wants to advance, then they need to have their powers reduced. The threat is one where if the Legislative Council is to reject a bill, under the new process it is to be in some way intimidated into acquiescence on the basis that its members risk losing their positions if forced to go to an election.

That is the basis upon which it is to work. This is to be an instrument of threat; this is an instrument to warn the Legislative Council that if it does not do what the government of the day wants in the progressing of the government's bill—which, of course, will have the majority vote in the House of Assembly—then it is on notice that its members would lose their support at the following election.

The other aspect of this instrument of threat is that I think it is fair to say that the government is absolutely sick of crossbenchers and the opposition making statements about proposed legislation which they have formed a view is deficient or defective or simply not appropriate. From time to time the government of the day makes the decision that it is not going to even put forward a piece of legislation because it knows what is going to happen; it gives up, and puts those bills back into some dusty folder and thinks, 'Oh well, there's not much point even arguing about it because those pesky people in the parliament, the opposition with the support of the minor parties and Independents, are only going to obstruct it anyway.' That is the view it holds.

We have not had a double dissolution in South Australia, so I suppose we have not had the experience of whether, in fact, an election subsequent to the triggering event actually has the effect of diminishing the support to the obstructing party or parties.

We saw that in the 1975 events, which the Attorney has recently referred to in this chamber, when there had been the rejection of a supply bill. The government of the day—indeed, the prime minister—was outraged that the opposition should have the audacity to vote to reject the supply bill, on advice at the time of senior treasurer officials, I might say, who were extremely worried about the government proceeding with their loan from an international foreign entity, which is now called the infamous Khemlani loan. Therefore, they felt quite justified in rejecting the bill to avoid placing Australians into potential precarious debt and liability for a loan with an exorbitant (even for those days) interest rate repayment obligation.

We are not going to revisit all the events of that time but suffice to say when the opposition, led by the Hon. Malcolm Fraser (both of these parties have now passed away) said, 'I am going to the Governor-General,' and the process was enacted and an election was called. Far from Mr Whitlam being vindicated in his demand that his government should be entitled to progress its supply bill, in fact, there was a wholesale rejection by Australians and Mr Malcolm Fraser was elected as prime minister with a massive majority and a huge swing. Notwithstanding that there was complaint by the then prime minister, Mr Whitlam, that this was totally unacceptable, he stood on the steps of Old Parliament House in Canberra and issued his edicts of the day about how unconscionable that action had been, particularly of the Governor-General of the day, in allowing that process to progress and his issuing the writs for an election.

Quite the reverse happened against all of the outrage of unions and members of the Australian Labor Party who were marching in the streets outlining what they considered to be a travesty in the dismissal of the Whitlam government and the subsequent election. When the Australian voters came out to vote, they voted very strongly to endorse the then Liberal/National Party Coalition.

Perhaps it is a sobering lesson to governments that think by introducing a process upon which following the deadlock and the impasse between these houses of parliament that they are going to go off to an election essentially with the threat to those obstructers that they might be swept from office. They could take note from that very occasion in which quite the reverse happened. According to pollsters today, if the Premier were to advance this new model, advance a threat to the upper house and the upper house said no and then, if he went walking off to the Governor's office to seek that the writs be issued for an election, he might get a very big surprise. According to the current pollsters, he would lose an election.

Given his popularity or unpopularity in respect of his utter failure to deal with the shocking financial position this state is in at present, his abandonment (in my view) of the priority to protect children in state care and numerous other things that the Premier would have to defend if he went to an election, he might get a very big surprise. It may be a message to the Attorney-General in moving this bill: be careful what you wish for.

In any event, we are not going to rely on the Attorney-General's view in respect of the introduction of this process. We say it does not stand the scrutiny of what has occurred and, indeed, as I say, in the South Australian parliament we have not had a double dissolution in a circumstance where that could occur.

In any event, it is not easy for the Premier to go marching across to the Governor because, under our constitution, we now have fixed terms and only in very exceptional circumstances under our constitution at present can an election be called on a different date. Sometimes that can be as a result of the commonwealth parliament—or I think, still, another jurisdiction—calling an election on the same day as our constitution provides for.

If we actually declare war on Victoria and we are in a state of military control or something, there are probably some other exceptional circumstances, but hopefully that will never occur and we are not seeking to subvert that. I make the point, however, that it has not happened. When one considers the commonwealth position, for all of the flexing of muscles of prime ministers—from the current one back, that I can remember—there is always this threat of potential double dissolution.

Sometimes it is to try to bring to heel some of the minority parties that the government of the day or the Prime Minister of the day may think are being obtuse in their resistance to what they claim to be a good government idea. Sometimes it is obviously to put some fear into the opposition of the day.

If I were to take even the most contemporary situation of the Heydon royal commission into unions having been completed and the commissioner's report being tabled and proposed legislation of the federal parliament to be considered, I think there has been a flurry of commentary in the national media about whether the legislation that is proposed in respect of purportedly assisting in the transparency and the integrity of union operations in the future is going to be effective, is appropriate or needs amendment or the like.

The media have covered the debate and different views that are out there, but I think it is fair to say that in that commentary, opinion has been expressed each way as to whether the government might exercise the opportunity to call for an election, call for a double dissolution, if it presents its bill and it is rejected in a form that is unacceptable to them twice and they go through the process of having an early election.

Can I tell you, I have heard it all before. To be honest, prime ministers have done it a lot on both sides of politics and I cannot remember a time when in fact they have actually done it. From time to time they have called elections a month or so before the deadline which they are obliged to do in their three-year terms, but they do not actually rush to the polls when legislation is rejected. In fact, I would go so far as to say that, to ensure that they do not even produce the trigger which will facilitate their capacity to be able to go down that track, they do not even present the bill a second time. So there are plenty of threats, but it does not happen.

Again, one must ask what the reason for this is. We have a good system that has effectively worked for South Australians and given them protection against unruly governments, with a parliament which genuinely must be accountable to them, not in its day-to-day operations, because we see them go off on a tangent all the time, but in its legislative obligations and expectations. To some degree, the government is at least accountable to the people's representatives in this bicameral system, and it works. Secondly, it has not been a tool which has been implemented at the commonwealth level to suggest that it is any better.

I say to the government: this is again another red herring; you have tried this before; it has been wholesalely rejected; and, when you need to have a diversion tactic, you come up with this legislation again. It fits into the same category as the bill that we have just dealt with and I expect it will reach the same fate in the Legislative Council as prior presentations of legislation in 2005 by this government, in 2009 by this government, and it will happen again in 2016. Why? Because the government have not produced one scintilla of evidence or one example upon which there has been a change of circumstance to justify us going down that route.

For the record of this debate, in terms of considering legislation that has passed both houses of parliament, over the last 40 years, only an estimate of 1.6 per cent of government bills have been defeated or laid aside. The government is on notice that representatives from Family First and the Hon. John Darley have made public statements to indicate that they oppose this proposition and will oppose the bills. Why then are we wasting our time here in the parliament this week? Because the government has no other priority of agenda to deal with—important issues. It is incredible to think that we are not dealing with modern day, contemporary issues like how we manage revenge sexting, which was a topic of controversy in the last six months, and the fact that, unfortunately, our children have the potential to be captured on our sex offenders register.

The Attorney-General, on behalf of the government, has said, 'Yes, we have looked at this and we have got a bill ready, and we are looking at how we are going to remedy this,' but it is the second day of the parliamentary sitting and we have not heard a squeak from the Attorney-General about even notice to progress a bill to deal with this issue. It is a very real, very contemporary and very current problem, which the government knows about and purports to care about, yet it is our second day here and we have not even had notice given of that bill. That is why we are here dealing with this legislation: because the government want a diversion tactic. They have nothing else that they are prepared to advance on the priorities for them, so bring out the old chestnut, bring out the constitutional reform.

Given the progress of the previous bill, which has now been adjourned in committee, and given that the government has chosen not to deal with the referendum bill with it, and we are now moving to the second tranche of reform on the deadlocks—I am assuming, therefore, we are going to be moving into the two referendum bills subsequently, because they are on the Notice Paper to that effect—I am going to have something to say about the referendum bills when we ultimately come to those.

I mention that only because when I addressed the chamber on the first bill relating to appropriation and supply constitutional amendments I indicated that I was happy to make that contribution on the basis that we would be dealing with the two bills, that is with the complementary referendum bill as well, at the same time. That having not occurred, I will make some comments about it when that bill comes before us.

But can I say of this tranche of reform that I was very concerned to note that it now appears that in 2009 it was the view of the Minister for Investment and Trade that the legislation should be amended, and indeed the constitution, to have a process to reduce the power of the Legislative Council so that it could not reject what were then known as the supply bills, but that today it appears he has a different view. I understood from statements made by the minister to this chamber that he was an independent member of cabinet and that he had an agreement with the government which enabled him to act independently in respect of matters of his choosing.

Having expressed, in writing, his view in 2009 of undertaking an approach to meet with the Legislative Council to deal with legislation on the rejection of supply bills, to now come to this chamber with a different view I just find puzzling and it somewhat undermines, in my view, his alleged independence and, indeed, his capacity to ultimately support whatever it takes to maintain his position. Any view that the minister is exercising some independent thought has clearly gone out the window by the vote we just had in this parliament.

Nevertheless, with those few comments I indicate the opposition opposes the Constitution (Deadlocks) Amendment Bill 2015, and I will have something to say about the referendum when those bills are dealt with.

Debate adjourned on motion of Hon. T.R. Kenyon.

Sitting suspended from 12:58 to 13:59.

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