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House of Assembly - Fifty-Fifth Parliament, First Session (55-1)
2024-03-05 Daily Xml
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Constitution (Countersigning) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 13 September 2023.)

Mr TEAGUE (Heysen) (16:38): Firstly, I indicate that the opposition supports the passage of the bill. Secondly, I indicate—no drum roll required—that I am the lead speaker for the opposition. The bill is a short one. It is nonetheless of some significant moment because it is affecting a change to the Constitution Act 1934, and any change to the constitution is one that ought to attract some particular and special attention.

The amendment to the constitution that the bill would affect is an amendment to section 71, which provides for the signature and countersignature of certain orders and warrants. For the second time in the house in not so very long we see a section heading that includes the expression 'etc'. It is a general provision in section 71 of the Constitution Act that provides for the signature and countersignature of a range of orders, warrants and documents of that nature.

What it presently provides for is for the countersignature of such documents by a minister of the Crown. That means, as I understand it, it is both the practice and regarded as necessary under section 71 for the attendance of a minister with the Governor to countersign the order or such other relevant document.

I understand that until 1978, the countersignature provision provided for the chief secretary to perform that function of countersignatory. By act No. 8 of 1978, that provision was changed so that the requirement was instead that a minister of the Crown be the countersigning person. I understand as well that until 1978, it had been the practice of considerable long standing that the chief secretary performed that function. It has been changed in such recent times.

There has also been change by virtue of an omnibus amendment act in 1987 but that, as I read it, was rather more mechanical in that it expanded the relevant scope of warrant for those purposes from any warrant for the payment of money to therefore expand the scope of the provision.

In terms of the personalities participating in the countersigning process, we have seen that substantive change in 1978 from the chief secretary to a minister of the Crown and that has been the practice for those ensuing 46 years or so. The change that would now be applied to both the heading and then relevantly the body of the provision is to remove that requirement for countersignature altogether, so no longer will it be required for any form of countersigning to be done.

We bear in mind that these are documents that have come after having been the subject of executive consideration. I just make clear that notwithstanding the change in 1978, and the then longstanding practice of countersignature by a minister of the Crown, the practice of countersignature went back a considerable long way prior to that. So what has changed?

Well, the Premier in bringing this bill to the house—introducing it and explaining to the house the rationale for doing so back in September last year—indicated it is really not making any substantive change to any power that the Governor has to approve the expenditure of public money or to make or revoke appointments or otherwise, as I have already said. The longstanding practice is that there are three signatures obtained in a meeting of Executive Council: a recommendation by a minister of the Crown on behalf of Executive Council, the Governor's signature and then also the countersignature of the minister of the Crown. As I indicated, it is already the subject of executive consideration by the time the Governor's signature is sought.

We have heard that this has come along, in part inspired by the changes of circumstances that are forced upon us—the result of the COVID-19 pandemic and what has been, as I understand it, further highlighted in the course of practice both during the pandemic and since—and they are really being made to make sure that those decisions of the Governor will not find themselves vulnerable to being deemed invalid for reasons only to do with a currently necessary meeting being held virtually.

I think the Premier conceded that the Legislation Interpretation Act 2021 already allows for meetings that would otherwise be required to be held in person to be held via audiovisual means, but there is a caution as to whether that applies in circumstances where a person needs to be physically present to witness the signing of documents.

It has been regarded that the second minister must be physically present to witness the Governor's signature of the instruments before countersigning, so the bill removes the requirement for countersigning completely and as a result removes any need for that interpretation in terms of whether or not there is a vulnerability in circumstances of a virtual meeting. As I understand the Premier's argument in favour of the bill, the merits of moving in this way apply regardless of that particular context. It might be an expression of both convenience and necessity.

We have seen already—at least in part, I think—that there are many members of the house who can attest to the change of arrangements to the holding of meetings that might otherwise have been held invariably in person and not virtually, to now it really having become very much the norm that meetings, right up to and including that of national cabinet, might be held virtually. The capacity to do so ought to be something that can remove uncertainty from the process of applying these relevant orders, warrants and so forth.

While this is indeed a significant matter, involving as it does the process for the Governor to bring orders into force and the removal of the participation oversight of a minister of the Crown from that process, I hope that the explanation of the circumstances in which that has occurred that has been provided by the Premier have put on the record the reasons for doing so.

I do not understand the Premier to be indicating, or I am not aware of any indication from the Governor—and one would not ordinarily be given any such indication—but I do not understand it to be necessarily the Premier's or the government's intention now to conduct Executive Council meetings other than in person, but the possibility is afforded by making the change.

There are some important questions, although discrete, that I think the Department of the Premier and Cabinet and the Cabinet Office have had to grapple with in terms of the practice that will now ensue. There has been some engagement about that by me and my office, particularly with DPC and, I think, through DPC to the Cabinet Office. I think this is a worthwhile matter to place on the record in the course of the debate. It has been put that, in response to those inquiries, as I understand it:

The Governor may only exercise a statutory power with the advice and consent of Executive Council. The Governor may exercise statutory powers with the verbal advice of Executive Council, however decisions are recorded in writing as best evidence of the exercise of those powers. This is unaffected by the countersignature requirement in section 71 or its proposed removal.

The countersignature measure in section 71 was included in the 1934 version of the Constitution Act and required certain decisions to be countersigned by the Chief Secretary (a portfolio held by a Minister of the Crown). This was amended in 1978 to require countersignature of a 'Minister of the Crown'.

I pause there before proceeding just to indicate that particular context. It was an introduction of a flexibility but of one of that category as opposed to the individual identified of Chief Secretary. I continue:

While it is not definitive, it is likely that the intention of the countersignature requirement was to show evidence that a Minister was physically present to witness the Governor's signature, and as a check on the Governor's powers. We are not aware of any other legal consequence brought by a countersignature or any other additional benefit, meaning it is not necessary.

The indication is that the current recording of meeting minutes and longstanding meeting protocols likely provide sufficient evidence that the exercise of the Governor's statutory powers have been made on the advice and consent of Executive Council and that the quorum requirements have been met. And further:

In addition, the Governor in Executive Council makes significant decisions, for example makes regulations, that are not covered by the countersignature requirement. These decisions are still countersigned as a matter of convention rather than legal necessity. Therefore, matters that do not currently require countersignature, will be expanded to include matters of public expenditure, appointments and dismissals, with the proposed amendment to the Constitution Act.

I am grateful for that engagement. I think it demonstrates the nature of the consideration of the practicalities of the Governor exercising those duties with and without countersignature in those different circumstances.

With those words, I again indicate that the opposition will support the passage of the bill and looks forward to then seeing what the practical outworking of it will be, particularly in terms of how Executive Council might be conducted in the future, indicating that, where practical—and I might be speaking just personally in this regard—it would be my preference that those meetings in particular continue to occur in person unless there are particular reasons for not doing so. There will be no such need for meetings that were occurring only for the purpose of countersignature, and the amendment to section 71 will provide certainty in terms of the efficacy of those orders as well. With those words, I again indicate the opposition's support and commend the passage of the bill.

Mrs PEARCE (King) (16:59): I, too, rise to speak in support the Constitution (Countersigning) Amendment Bill 2023, which will amend section 71 of the Constitution Act 1934 to remove the requirement for certain decisions of the Governor to be countersigned.

The COVID-19 pandemic has certainly shown us that there are many areas that we can improve upon and where we can update our ways to be more reflective of the circumstances that we find ourselves in. One way we can go about such an improvement is by delivering greater flexibility in the ways that we work, with everyone across the community having been challenged in some way or another over these last few years. This has allowed us an opportunity to think about how work can be done differently or more efficiently by better using technologies that are available to us in our post-COVID era to undertake our responsibilities with greater flexibility, should we need to.

I see technology's influences in my neighbourhood every day: when I am knocking on doors and meeting the people who continue to have working-from-home arrangements; in businesses that have embraced new ways to provide their services; and, of course, in community organisations that have also adapted how they meet and how they service our community.

This amendment bill before us has come about as, in recent years, we have been shown clearly that meeting physically is not always a possibility, be it for reasons of practicality, personal safety or when you are feeling unwell. The amendment is therefore an important but simple update to the way the government conducts its business and brings the processes and systems in place up to date and on par with the contemporary world of business.

To provide a brief outline of a meeting of the Executive Council, currently three signatures must be collected. These signatures include the recommendation signature of a minister of the Crown, the Governor's signature and a countersignature of a second minister of the Crown. The second minister of the Crown who provides a countersignature is currently required to be present physically to witness the Governor sign the instruments, before they can provide their countersignature. While the Legislation Interpretation Act 2021 allows for meetings to be held virtually, which may otherwise cover such meetings of the Executive Council, it does not allow for this where a person must be physically present to witness the signing of documents. It is thus currently not allowed for meetings of the Executive Council.

But while we here, as well as the business community outside of this place, know that meeting virtually is something that is not just able to be accommodated, in many cases across the business sector virtual meeting arrangements, such as those that this amendment may allow, are often just standard procedure.

The interruptions we have faced and the technologies we have used throughout the COVID period help to showcase just how important it is to be able to have flexibility. Supporting this amendment will allow for greater continuity of government measures where there is a need to accommodate such meetings, be it for practical reasons or for safety. It is a small but sensible change to make, and it is one amongst many that have been made across many sectors of South Australia, with businesses and workers now finding the benefits firsthand.

It is due to these changes, which have been made possible by the quick advances in technology and our equally quick adoption of them due to necessity, that we are now able to see different ways of working as more than just a possibility. For example, at the beginning of the pandemic around 13 per cent of people reported that they were working from home at some point throughout their week. This swiftly peaked throughout the pandemic, more than doubling across Australia, to be around 26 per cent to 31 per cent.

While we can see that working from home has begun to come down from its pandemic peaks, more flexible working arrangements have become possible following the pandemic. Data from the ABS's latest working arrangements release shows that the proportion of workers now doing more of their work by telecommuting—due to access to flexible arrangements—has increased from 13 per cent in 2015 to 39 per cent in 2023. We have seen how our ability to incorporate these new technologies into our everyday working lives can lead to increases in productivity and other benefits that may come from having more flexible working arrangements.

Across both the private and the public sectors, these moves have been received with boosts to employee satisfaction, especially for people with a disability, workers from across our regions and workers who have caring responsibilities. Greater flexibility to attend to the various commitments of work have also helped others to be able to attain positions at work that may otherwise have been out of reach for them. In turn, that has helped to boost the levels of diversity that we are seeing in our workplaces. Just about every worker has in some way stood to benefit from these changes, changes which have often come about out of necessity but have also come from the collective desires of the workers themselves, who have sought better and more flexible conditions in their own workplaces.

Importantly, what this amendment will not see are any changes made to the Governor's powers to approve the expenditure of public money or making or revoking any appointments. Nor will it see Executive Council meetings moving to be entirely online as the new expected norm, but instead it will allow for the flexibility of moving such meetings online where there is a need based on extenuating circumstances, which do arise from time to time, and where such a decision to move the meeting online is approved by Her Excellency as the Chair.

What it will do is allow for the use of virtual meetings as an option for the Executive Council in extenuating circumstances and remove the requirement that a minister of the Crown countersign instruments which are signed by the Governor. It will ensure that, where decisions of the Governor are made, these decisions will not be held invalid just because the meeting may have been held virtually, as is often business as usual for many sectors across our state.

As the Premier succinctly captured in his second reading speech to this bill, this is about allowing for flexibility in decision-making and, just as businesses across our community are delivering greater flexibility in their workplaces, this too will see the government brought into line with what is often standard practice outside of this place. I therefore commend the bill to the house.

The Hon. J.K. SZAKACS (Cheltenham—Minister for Police, Emergency Services and Correctional Services) (17:06): I thank members for their contribution on this. I understand that there is a will for a short committee stage as well.

Bill read a second time.

Committee Stage

In committee.

Clause 1.

Mr TEAGUE: I do have a question on clause 1 and the question is one of context. I record my appreciation for both the briefing on the bill and DPC's further engagement in response to some questions. I have referred to the 1978 change from a requirement for countersignature by the Chief Secretary, as one of the ministers of the Crown, to any minister of the Crown and also to advice in relation to the Governor in Executive Council making a variety of significant decisions that are not covered by the countersignature requirement. Is this removal of countersignature now just doing away with such a countersignature requirement once and for all? Is there any other remaining requirement? Are meetings such as this able now to be done comprehensively virtually if necessary?

The Hon. J.K. SZAKACS: I thank the member for his question. I will answer the question whilst also jumping ahead to explain, or at least to try to advise of, instances in which the Governor will not be able to execute matters virtually. I am advised that royal commissions and commissions will not be able to be executed virtually or not in person. That is because of the seal and the seal requirements; it is not pertaining to the countersignature but is simply a matter of process with respect to the seal.

I am advised that there is some consideration being undertaken on those matters. I cannot advise at this stage on progress, but there is certainly advice being taken as to what reform may be required or could be prudent in respect of the seal, in which case all matters, including those of royal commissions and commissions executions, would be able to be understood and executed virtually.

Mr TEAGUE: Also at clause 1, rather than focusing on the particular change, again, I am grateful for the indication of the range of significant decisions that are taken by the Governor in Executive Council that are not covered by the countersignature requirement. The indication is that those decisions are still countersigned as a matter of convention rather than legal necessity. Is that practice going to change as a result of these changes as well, so that that convention is no longer to apply?

The Hon. J.K. SZAKACS: The member is correct in his assertion that it is a matter of convention that those other matters are countersigned. It is not my place to speak on behalf of Her Excellency the Governor as to the way that she will seek to exercise the ongoing or otherwise execution of that convention, but I have no advice to the contrary or to suggest a change. I am also advised that would be a reserved matter for the Governor in Executive Council to determine, should she, whether that convention will remain and continue.

Clause passed.

Remaining clause (2) and title passed.

Bill reported without amendment.

Third Reading

The Hon. J.K. SZAKACS (Cheltenham—Minister for Police, Emergency Services and Correctional Services) (17:13): I move:

That this bill be now read a third time.

Bill read a third time and passed.

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