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

Second Reading

Adjourned debate on second reading (resumed on motion).

(Continued from page 3469.)

The Hon. R.I. LUCAS (20:08): I rise to address some comments to this piece of legislation, but also I think we are including the Referendum (Reform of Legislative Council and Settlement of Deadlocks on Legislation) Bill as in essence part of an informal cognate debate, as obviously both the bills are related. So, I intend to confine my remarks to this bill, but they obviously relate to the other bill as well.

This piece of legislation is the culmination of I guess, in the first instance, many years of Labor Party policy, which had been studiously ignored for decades by Labor leaders, Labor leaders in the Legislative Council and others until 24 November 2005. Mr President, as you will well remember, on that day one Edith Pringle was about to give evidence to a select committee of this Legislative Council, I think, upon which you might have been serving at the time. The Premier (the Hon. Mr Rann) obviously believed that the evidence that was about to be given would be embarrassing to him personally and to the government and, in particular, to the Attorney-General. The government of the day—I should not say 'the government' because I understand that essentially it was a decision taken by the Premier and his office—obviously decided that there needed to be a political diversion for that day. An exclusive story was given on 24 November to the Adelaide Advertiser—to Greg Kelton, a political reporter at the time. The banner headline read, 'Rann to call referendum in 2010—abolish the upper house.'

Discussions with members of the Labor caucus at the time indicate they were blissfully unaware that this announcement was coming. As I said, it was a successful attempt to divert the media attention away from other activities on that day. The story was as follows:

Premier Rann wants parliament's upper house abolished and will ask South Australians to bring about the greatest electoral system changes in the state's history.

It is intriguing that anything the Premier does is always the greatest, a world first or an Australian first. It is never humdrum or middle of the road: as in this term, 'the greatest electoral system changes in the state's history'. The article further states:

Labor, frustrated by legislative delays and the watering down of new laws in the Legislative Council, will begin moves to get rid of it after the March 18 election which polls suggest it is likely to win.

That was the genesis of the current debate. I note that the Adelaide Advertiser pinned its colours to the mast on that day with its nicely understated editorial under the heading 'High time to burn down the house'. The first sentence of that editorial stated:

The demise of South Australia's Legislative Council cannot come quickly enough.

I think it is a sad fact of recent years that the Adelaide Advertiser has adopted an approach that is so out of touch with the vast majority of people in the South Australian community that it is there, together with the Premier, supporting burning down the house (in political terms)—getting rid of the Legislative Council. It is certainly not an approach that the Adelaide Advertiser has editorially supported generally over its long and proud history here in South Australia.

Ultimately, I guess, that is an issue for the current management and the current Editor of the Adelaide Advertiser to defend. That was the position of the government. I think that, as the Hon. Mr Lawson pointed out, the Premier sought to give the impression that, in essence, he was going to provide South Australians with a pick-a-box referendum whereby they could either keep the Legislative Council, abolish it or reform it. Obviously, in his haste on that day to divert attention from the Pringle evidence, the Premier had not realised that it was not legally possible for him to provide a pick-a-box referendum for the people of South Australia.

He had obviously forgotten or, as I said, in his haste had omitted to acknowledge that a government must put down a proposition (as he has now done in relation to this bill) in legislation, and then that package is put to the people in terms of whether or not they support it. They do not get the chance in a referendum to tick or pick a box as to what option they want. As a result of that and the passage of time, as the Hon. Mr Lawson has summarised (and I will not repeat his commentary in that respect), we move to the position that we are in.

I should acknowledge that it was not just the Adelaide Advertiser and the Premier at the end of 2005 who were supporting the burning down of the Legislative Council: he was supported by his prominent senior business adviser at the time, Mr Champion de Crespigny (who was then the confidant of the Premier) and Business SA (in particular the Chief Executive, Mr Vaughan), as well as, I assume, the board of Business SA. They were all putting the proposition that the Legislative Council was a blot on the horizon of the state's economic progress and development and that it was holding up legislation; therefore, governments ought to be allowed to do whatever they wish to do. They did not need a Legislative Council, and they should just be able to ram their legislation and their view through the House of Assembly and then, four years later, the people could make a judgment as to whether or not that was a good thing.

On previous occasions when I spoke to the Address in Reply on 3 May 2006 and again on 3 May 2007, I provided significant detail as to how that information was wrong. I quoted figures from the Clerk of the Legislative Council, Jan Davis, who had indicated in a paper that only 2 per cent of the legislation that had been considered had been defeated during long periods of time when there were Liberal and Labor governments, and I added to that by analysis of the period between 2002 and 2006.

The paper presented by the Clerk of the Legislative Council is called 'The Upper House: a snapshot of the South Australian experience 1975 to 1998.' Throughout this period of some 23 years, only 1.8 per cent of government bills have been rejected outright, and this was usually after going through the whole legislative process to a deadlock conference between the houses. I updated that for an analysis of the period 2002 to 2006, which showed that over 200 bills had been introduced by the government; three bills had been defeated and one had been delayed in that time. Again, 2 per cent of bills have been defeated or permanently stayed or delayed in that period. That figure remained pretty consistent at about 2 per cent.

The argument that the government of the day (Liberal or Labor) was unable to get its legislative program through fell in the face of looking at the facts of the situation rather than the rhetoric that the Premier and others had been using at the time. That was the position of the Premier and co. and, even though we do not agree with it, one can at least understand the logic of it, and that is that the government is elected to govern, it should be allowed to govern and whatever it decides should be allowed to pass; therefore, you get rid of the Legislative Council.

When one looks now at the government's plan B, which is the legislation we have before us, one needs to look at whether it achieves what the government said originally it was setting out to achieve. The simple answer is, of course, that it does not. Its original purpose was to allow the government to put its program through without opposition. It obviously did not want an upper house where there were Independents and minor parties. It certainly did not want an upper house where the majority of members were non-government members.

The package that has been put before us, should it pass into law, would leave governments in exactly the same position: there would be an upper house, albeit differently structured, but in most circumstances it would still be in a position where there are Independents and third parties. Secondly, there are a majority of non-government members in the Legislative Council as well. So, it does not achieve the purpose that the Premier, The Advertiser, Mr Champion de Crespigny and Business SA were arguing for the abolition of the Legislative Council. It is not a rational plan B to the original proposition that was being put by the Premier. It does not achieve the function and purpose they said they wanted to achieve through reform of parliament and the Legislative Council.

We were therefore left with the Premier having to save electoral face and, Mr President, as you would well know, that is a very important issue for our Premier. He wants to ensure that he is seen in the best possible light, and he does not want to be seen to have gone back on the commitments that he has given. So, he moved to plan B, and plan B, of course, is the package that we have before us this evening.

In the first instance, we see a reduction in the numbers from 22 to 16. Clearly, in normal circumstances we are likely, potentially, to have the government of the day having six members, the opposition having six and the Independents and third parties having four. In other circumstances you may well have the government with five or six, the opposition with five or six, and the Independents and third parties potentially having five; almost a third, a third, a third, as is almost the current arrangement in the Legislative Council.

What you are then confronted with is a government party in this chamber with five or six members. With the current convention of the government party having a person sitting in the chair as the president, you are then confronted with the government party having four or five members sitting on government members' benches in the Legislative Council.

In a situation where you have, hopefully, a sufficient talent pool to be able to provide three out of fifteen members of the cabinet from the upper house—I know that is a difficulty for this government, and that is why we see only two cabinet ministers in this chamber—you are essentially left in a position where you would have one or maybe two members of a backbench not only having to take on the role of the whip but also having to take on all the responsibilities of being backbench members of a government party.

That takes you back to the period in this Legislative Council when there used to be 16 Liberal members and four government members: there were three cabinet ministers and one backbencher. It was almost an unworkable set of circumstances for the government of the day. In those days, of course, there was not the history and the record of significant numbers of parliamentary committees to occupy or increase the workload of Legislative Council members.

When one goes back to those periods of the 1970s and 1980s, I think there were no more than a couple of committees that involved members of the Legislative Council, and very infrequently were select committees established. It has been a practice that increased significantly only during the 1980s, 1990s, and now the new century, and it is not going to change. We are going to see this chamber, with its majority, continuing to establish an ongoing number of committees, which will need to be serviced, and clearly what is intended, in part, by the government is to weaken the capacity of the Legislative Council to provide oversight of the operations of the executive. You would have a situation where the one or two members of the government backbench would have to serve on every committee or, as has occurred in the past, cabinet ministers would have to spend an increasing period of time serving on select committees and committees of the Legislative Council.

So, in practical terms as well as the other terms that the Hon. Mr Lawson has referred to, one can see the very important but hidden implications of a reduction of 22 to 16, superficially very attractive to the people out there. If you said to people in the electorate, 'Do you want fewer politicians? Do you want shorter terms? Would you prefer that they weren't paid at all?', 70 per cent of them would nod their head. If you put to them, 'Would you prefer to almost get rid of all the politicians, don't pay them anything, and have as short a term as possible?', again, you will get a head nod. That is the sort of populism to which this particular aspect of the legislation is pitched. But when you look behind, in terms of the practical implications of how this chamber would operate, there are dire consequences if you were to go down this particular path.

The second aspect of the legislation refers to the introduction of the four year terms. I refer to a contribution from the current Attorney-General, who addressed this particular issue on 9 March 2005. It relates to a piece of legislation from an Independent member which sought to introduce exactly this aspect, that is, four year terms coinciding with the House of Assembly. What did the Attorney-General say? I quote:

I now turn to the Constitution (Terms of Members of the Legislative Council) Amendment Bill. The bill seeks to amend the principal act so that the term of members of the Legislative Council will expire on the dissolution or expiry of the House of Assembly. The government does not support this proposal. It believes that the current system is preferable. Currently, members of the other place generally serve the equivalent of two terms of the House of Assembly. That is eight years.

The terms of members of the council (the other place) have always been staggered so that, usually, only one half of the membership is elected at any one election. The amendments proposed in this bill would mean that all 22 councillors would be elected at the same election, meaning a reduction in the quota from 8.3 per cent of the formal vote to 4.3 per cent, or thereabouts. The importance of the other place and equivalent chambers is explained in Odgers' text as follows:

The requirement for the consent of two differently constituted assemblies improves the quality of laws. It is also a safeguard against misuse of the law-making power and, in particular, against the control of any one body by a political faction not properly representative of the whole community.

The government believes that the current system is consistent with the role of the other place as a house of review. It has been common for upper houses to be constituted in this way. For example, the Senate maintains a staggered system of appointment. Staggered terms allow members of the other place to be more removed from immediate electoral pressure. It offers stability and balance, as a strong populist vote in the house would not necessarily result in a majority of members in the other place. I believe that this is a safeguard. It has the advantage of ensuring continuity of experience in at least one house of parliament.

Those were the words of our Attorney-General, Mr Atkinson. I am sure that the Hon. Mr Finnigan, as a wholly owned subsidiary of that particular part of the Labor right, would take those particular comments from the Attorney-General—his Attorney-General, his leader—to heart in relation to the legislation. That is why I say that this particular announcement by the Premier in November 2005, and now this particular adaptation, is completely contrary to the views that have been put by people like the Attorney-General and others over a long period of time in relation to the Legislative Council.

My views of the Attorney-General are well known: consistency of political argument has not always been our Attorney-General's strong suit, but I would invite him to reconcile his statements of March 2005 with his introduction of this legislation. We heard earlier how the Attorney-General assiduously corrects the grammar of members of parliament on their websites, etc., and we know that the Attorney-General and, indeed, others of his particular group do spend a lot of time and creativity on websites and related activities, but more about that on another occasion. On the issue of grammar I might ask the Attorney-General whether he could spell for the parliament the simple word 'hypocrisy', and I invite him to comment on this particular issue.

The third matter my colleague the Hon. Mr Lawson raised was regarding the vote of the President, and I think he nailed it very clearly. I do not intend to speak about it at length, but the important part of his argument was that the changes had been made back in 1973 for the presiding officers of both houses, yet in this legislation the proposal to give what is, in essence, a deliberative vote to the presiding officer is in this chamber only, and is not being done for the Speaker.

I put that to the government advisers and to Speaker Jack Snelling, who was also there, when we had the briefing with them in Old Parliament House. I think it is fair to say that a rather flustered Speaker blurted out an attempted explanation that in some way it was more likely, or something, that there were smaller numbers in the Legislative Council—shock, horror; we had not realised that—and it was likely to be more important for the President in the Legislative Council to be able to have a deliberative vote.

I think he also indicated that it was something to do with the fact that we had even numbers in the Legislative Council and they had odd numbers in the House of Assembly, and that in some way justified the difference, giving the presiding officer in this house a deliberative vote but not making the change in the House of Assembly. As I said, it was not a very convincing response from the Speaker, and it left a number of us who were there shaking our heads. However, that is part of the package that we have before us.

The fourth element relates to the double dissolution provisions, and, again, my colleague more than adequately summarised the argument against those. The simple reality is that in the many years of operation of the Legislative Council there has never been a situation where that has been contemplated. This council has never refused supply, although it has always had the capacity to do so. It is not an issue that has been at the forefront of debate about electoral reform in South Australia, and it is not the sort of issue about which, when I am at the football on a Saturday or at a community group over the weekend, someone has said to me, 'We really need to change the double dissolution provisions of the Legislative Council; it is eating away at me at the moment. Please do something about it,' or 'The issue of whether or not the presiding member in the council has a deliberative vote is a critical one in terms of whether or not I can get a service for my child with a disability or whether I can get off a waiting list and into a hospital.' It is not the sort of issue that is in the mind of the people to whom I speak; maybe the Premier and the Attorney-General speak to different people when they talk about the need for electoral and political reform.

In these final moments I would like to flag some other broad areas. Whilst I think this is a nonsense—and I think it is being treated as a nonsense by most people—in terms of electoral reform, it is an attempt to reduce scrutiny and accountability of the executive arm of government, and if the government got this through it would apply to future Liberal governments as well as Labor governments. I think that is a bad thing in terms of our democratic processes.

I have touched upon issues in terms of reform on other occasions, and I hope I have the opportunity to touch upon them again in other motions before the end of the year, but I will list them briefly here. The operations of the committees of this Legislative Council are just so fundamental to keeping the executive arm of government accountable, and the progress of the last 20 years needs not just to be put away and admired, saying 'That's a good thing.'

We need to look at it, build on it and improve upon it in terms of its operations. I think the decisions we have taken in the past two or three years with Budget and Finance are the germs of starting a committee system of the Legislative Council which I think we can be proud of and which will keep future governments, Liberal and Labor, accountable. We have to acknowledge on our side that when it comes to our cycle to be in government there will be a non-government majority in the Legislative Council chairing and operating the numbers on a budget and finance committee to keep Liberal ministers and public servants under a Liberal government to account as well. We have to accept that political reality.

I think we have to build on what we have. I have said before and I will argue again that it should become a standing committee of the Legislative Council so that it is not there at the whim and wisdom of a particular flavour of the day in terms of the vote in the Legislative Council. We should have permanent resourcing in terms of staffing so that we have two full-time staff on that committee who can build up corporate knowledge and expertise of budget accounts so that, as new members join the committee, they can provide advice and guidance to those members.

You cannot expect new members on a committee like that to be able to know everything about the operations of budgets, accounts and finances. The staff should be in a position, as they are in other legislatures, to provide advice to new committee members. They should be able to say, 'I have been through every budget line of this department, members, and you can either agree to these questions or not but, in a bipartisan way, here are the questions that ought to be raised with this particular agency.' The Labor members can pick up the ones they like, the Liberal members can pick up the ones they like, and hopefully the Independents would pick up the whole lot of them and raise the questions with the public servants. That is the way that that committee ought to operate.

We have the Statutory Authorities Review Committee at the moment which is wholly comprised of members of the Legislative Council. I would like eventually to see a third wholly Legislative Council based standing committee in the social and environmental area so that we have an across-the-board spectrum of Legislative Council committees. Our joint standing committees were an accident of the history of the time in terms of how they were established, and I suspect that it will be very hard to unravel all of them, and there will be some in this chamber who do not want to unravel them, and I accept that.

I think we could certainly combine some of those—natural resources and environment perhaps into one, or the Aboriginal affairs and social into another and establish the resources for a third standing committee of the Legislative Council. We should, over a period of time, be aiming—and, as those of us who have been here for many years move on to other challenges, I hope that the newer members of this chamber take on this commitment—to build on what we have and eventually see a Legislative Council standing committee system that covers the spectrum for those who are interested in social and environmental issues, for those who are interested in budget and finance and for those who are interested in the review of statutory authorities where you look at particular agencies etc., and have that spectrum across the board.

That is the sort of reform that would mean much more in terms of improving the performance of the parliament and the Legislative Council by improving the transparency of the accountability of government, both Liberal and Labor, whereby we could genuinely talk about that as the sort of reform that we should be introducing.

I would hope that in the new parliament, whoever is in government, we amend our sessional orders or standing orders in this chamber to require answers to questions on notice within a specified period of time—60 days or 30 days. I will go through the detail of this in another motion. It is a practice that exists in most other jurisdictions where governments of the day cannot ignore for seven years questions on notice. At least they have to provide some form of answer. You might not be happy with it, and I am sure that oppositions in other parliaments are not happy with what they get, but they at least get the courtesy of a response from the government of the day within a period of 30 or 60 days of a question being put on notice. I think that is a worthwhile reform of the operations of the Legislative Council which would improve accountability.

Again, I will speak on this on another occasion, but I think we do need to look at our standing orders. There are many standing orders in relation to which I think the passage of time has meant that the arguments for them have perhaps disappeared. Let me briefly refer to two. I am not going to waste time this evening by going through many of the others. I am sure other members have a view on many of them as well. I refer members to standing orders 189 and 190—and I am sure all members will know exactly the standing orders. Standing order 190 provides:

No reference shall be made to any proceedings of a committee of the whole council or of a select committee, until such proceedings have been reported.

That is generally ignored in many of the discussions in the parliament. There are so many select committees of the Legislative Council that, if on every occasion an issue was raised, whether it be the topic of water or Atkinson or Ashbourne, or whatever, as one goes across the spectrum, and if anyone wanted to take a point of order, the point of order would probably have to be upheld by the President.

By and large, the reason for this particular standing order came about because of the fact that all the proceedings of committees were held in confidence; they were not in public session. So, until it reported, you did not know anything about the proceedings of the committee, and you can understand that. However, these days, virtually all of our committees are open to the media, and they are recorded and reported on, etc. It makes no sense to me to have a standing order that prevents you from discussing or raising these issues. There are some protections you would have to weave into any change in this area, but I just give it as an example of something that I think, in terms of reforms to a modern day parliamentary chamber, we need to be tidying up and having a look at. The other one I will briefly refer to is this wonderful standing order 189, which provides:

No member shall read extracts from newspapers or other documents, referring to debates in the council during the same session, excepting Hansard.

I am not sure of the exact reasons for that. In essence, what it is saying is that, if the Adelaide Advertiser or the Independent Weekly or something refers to or reports on a proceeding in the Legislative Council during the same session, we are not allowed to refer to that report, other than quoting Hansard. It makes no sense to me, and I have been here for a while. It is an example, I think, of a number of the standing orders where we need to have a look at the rules upon which we operate.

I come to the last point in relation to standing orders, and that is the process or procedure for change. Again, I will try to speak in greater detail on this on another occasion before the end of the year, but I will just flag briefly that there is no rule that prevents the majority of this chamber from changing the standing orders if it so wishes. I have spoken previously on the convention in my period in the Legislative Council where we have essentially not changed the standing orders unless we could get the agreement of everyone. That was a bit easier 20 years ago when there were mainly 20 Labor and Liberal members. Essentially, if they agreed, the only other ones we had to worry about in those days were the two Democrats.

Of course, now it is one-third, one-third, one-third and it is a much tougher task. As I have said, it is a convention as opposed to a rule. So, the majority of the day, if it so wishes, can take control of the Standing Orders Committee and rewrite the standing orders completely. I do not support that proposition. However, I think the days of having to get the agreement of all 22 members are probably now gone. Probably a proposition I would invite members and the government to consider would be the agreement, clearly, of the government and the opposition, as the two biggest parties, and possibly a convention where a majority of the non-government/non-opposition members agree to the change. So, if we have six members, as we have at the moment, it would be a matter of whether you agree on it being three or four of those members.

It still means that an overwhelming majority of the members need to agree to a particular change. It means, of course, that you have to have the agreement of the government and opposition and the majority of the Independent members. However, it is different from the House of Assembly, where the government of the day, with the numbers, can walk in one day—and governments have in the past—and change all the standing orders; whatever the government wants, it can put through.

We are different, but perhaps we need to consider now how we might move to a new convention, and we ought to have a debate about that. This is just my view. The government may well have a different view. If it is in opposition, it might have a different view again. I would invite non-government members as well to contemplate it and, as I have said, perhaps through a notice of motion in private members' business, raise the issues, because I think we need to do some thinking and have a discussion on this prior to March 2010.

In the new parliament (whoever is in government) my views are on the record and I can assure you they are not going to change whether I am in government or in opposition. I am only speaking for myself personally at the moment, of course. We support, obviously, the Budget and Finance Committee but, in relation to these standing order issues, we need to have that debate as well.

We do need to consider how we move to a process of improving some of the standing orders in the Legislative Council because, essentially, if someone wants to be a stickler and you get the equivalent of a Peter Lewis in this chamber (heaven forbid!) the standing orders could be effectively used to stymie almost anything that currently goes on as normal accepted practice for keeping governments to account. I do not think that is a good thing in terms of the operation of the chamber. Let us try to fix it up before we get the political equivalent of a Peter Lewis in this chamber in relation to using standing orders in that particular way.

I indicated that I would not speak for much longer than 30 minutes, and it has been 35 minutes so I indicate, again, my support for the comments of my colleague the Hon. Mr Lawson in terms of opposition to both bills. I would urge other members to similarly oppose the bills that are before the council

Debate adjourned on motion of Hon. Carmel Zollo.

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