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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.

(Continued from 13 October 2009. Page 3467.)

The Hon. D.G.E. HOOD (11:23): I will not speak very long on this bill. The matters I will raise have been addressed by other members in this chamber, and I see that a number of members are listed to speak today and no doubt the points raised will be similar. The issues with respect to this bill have been dealt with in depth by other members—in particular, the contributions of the Hons Mr Lucas and Mr Lawson—and they have provided great detail and summary of the arguments. I will touch on some of the same issues as well as others.

This bill proposes four major changes to the operation of the Legislative Council. First, the bill reduces the size of the Legislative Council from 22 members to 16; and it reduces the term of a member of the Legislative Council from eight years (equivalent of two terms of the assembly) to a term of four years and requires all members of the Legislative Council to retire at each election as a result of that.

The bill provides the President of the Legislative Council with a deliberative vote in all circumstances rather than the current deciding vote in the rare event of a tie. In fact, in my time in this place I do not believe I have seen a tie. Fourthly, the bill also seeks to alter the mechanism for the resolution of deadlocks by providing for a joint sitting which has some resemblance to the commonwealth deadlock provisions.

This bill seems to me primarily motivated by the wrong reasons. It would see the influence of crossbench members and minor parties severely limited and it would entrench the power of the government of the day. Of course, I am not referring necessarily to this government but whichever government it may be in the future—Liberal or Labor.

There is an old adage that power corrupts and absolute power corrupts absolutely. By severely weakening the power of this house of review, the bill will squarely place tremendous power in the hands of the government of the day. Family First does not believe that South Australians want any government to be given such unrestricted, unrestrained power and we believe that South Australians want—and, in fact, demand—the checks and balances that this house of review provides.

One only has to look at the excesses of power interstate and overseas when those safeguards are removed or in some way downgraded. Indeed, the excesses in Queensland's Bjelke-Petersen government and the subsequent Fitzgerald inquiry showed some of the risks associated with unfettered government power. The Queensland Legislative Council was abolished after it was stacked with members wanting abolition in an act which took its effect on 23 March 1922. Despite this, the public strongly voted against abolition in a referendum, but since that time many political commentators have argued that some of the problems which surfaced in Queensland during that time were possible only because of the absence of a house of review.

On a commonwealth level, I think that many people, including those in the Liberal Party, would actually admit that even when the Howard government had complete control of the Senate in its last term, politically speaking at least, it probably turned out to be more trouble than it was worth. I believe that South Australians want a genuine house of review with genuine powers to call on the government and restrict unfettered power of the government of the day.

Turning to each of those issues individually, I will discuss the first one dealing with the reduction in size of the Legislative Council—that is, the reduction of the number of members from 22 to 16. In November 2005, the Premier announced that, if re-elected, he would hold a referendum at the 2010 state election to abolish the upper house of this parliament. As others have pointed out, there was clearly no public support for that and it was seen as unnecessary and undesirable. In fact, the government has stated—to its credit, I believe—that it does not believe it is the public will to abolish this council. So, now it has been determined that a reduction in the numbers of members is more appropriate.

Since Proclamation on 28 December 1836, the number of legislative councillors has varied from time to time. From 1857 to 1881, there were 18 members, increasing to 24 members from 1881 to 1901. From 1901 to 1913, the number was reduced again to 18 members. From 1913 to 1973, there were 20, and since 1973 there have been 22 members of this place. Even at the time of Proclamation, the tiny state of South Australia had 18 Legislative Council members. Apart from the reduction in the number of members from 1901 to 1913, the general rule has been that as the number of constituents has increased (that is, our population) so has the number of legislative councillors. This increase ensures that members of the public have a reasonable ratio of legislators whom they can approach and access in order for their individual needs to be represented.

Larger states generally have larger numbers of legislative councillors. What has been proposed here is clearly against the established trend. New South Wales has 42 members of its legislative council over one district. Victoria has 40 members over eight districts. Western Australia has 36 members over six districts and South Australia, as I have pointed out, currently has 22 members over one district. Tasmania, the smallest state with a population substantially smaller than South Australia, has 15 members which would be very similar to the proposal of 16 members for this place, yet Tasmania has a population of less than a third of South Australia's.

The general rule, according to a research paper put out by the parliamentary library entitled 'The Legislative Council of South Australia', dated July of this year, notes that the average ratio is slightly over two lower house members for every upper house member with the exception of Western Australia and Tasmania. If this reform were to pass, our South Australian constituents would have 47 lower house MPs to just 16 upper house MLCs—an unacceptable ratio of more like 3:1. This makes access to legislative councillors for constituents much more difficult. The following has been said in this place during the debate:

The opposition's response to this proposed reform, to date, appears to be to claim that there will not be enough members to do all of the work. This is to miss the point entirely. The message that this government has received from the public is that there is a good deal of make-work going on.

I do not accept that statement; I do not agree with it at all. In fact, I think it does an immense disservice to the hardworking members of this place. I can only speak from my personal experience but I am sure that what I have done is only a shadow of what others have done in this place. Personally, I have introduced some 30 or 40 bills during my time here, some of which have become law and a couple of which I expect to become law in the near future. I have personally spoken to thousands of constituents in trying to help them with their individual issues. Obviously, I appear in the media on many occasions, and on it goes.

As I said, my contribution is a shadow of the contribution of some others in this place. Indeed, my colleague the Hon. Mr Brokenshire, in his very short time here, has already been sitting on five separate parliamentary committees: on Families SA; the Aboriginal Lands Parliamentary Standing Committee; the Budget and Finance Committee; the inquiry into the taxi industry in South Australia, of which he is the chairperson; and also the inquiry into horseracing in South Australia. I ask the question: which particular select committee, or any other committee, do we think has been set up to make work for ourselves?

Is it the Families SA committee set up by the Hon. Ann Bressington? I do not think so. Is it the taxi industry committee set up by my colleague the Hon. Robert Brokenshire? I do not think so. The point I am making is that these committees do very important work, and we need a minimum number of members. I think 22 is about the right number in order for these committees to actually work in the real world. Both of the committees that I have just highlighted provide valuable information and I believe do a great service to the community.

As the Hon. Mr Lawson noted recently in his second reading speech, there seems to be no justification or logical reason at all for reducing the Legislative Council from 22 members to 16. It seems somewhat arbitrary. Indeed, it is clearly a move to reduce the number and scope of committees set up by the council and the valuable work done by its members such as the Hon. Mr Lucas and former members like the Hon. Mr Xenophon (now Senator Xenophon, of course) in exposing concerns and questions about the administration of the state and various departments. I should point out that this applies whoever the government of the day is. No doubt, in the future, Labor will have its turn.

I turn to the second aspect of this bill, and that is reducing the terms of legislative councillors. The second major proposal of course is to reduce the terms of MPs so as to, in effect, abolish the staggered terms that currently exist. At the general election to be held in March 2010, it is proposed that, as usual, 11 members of the Legislative Council will retire and then there will be an election to fill 11 seats. Those 11 members will be elected for a term of eight years. However, if the bill passes and the referendum passes, all the members of the Legislative Council will retire at the general election and at that election only 16 seats will be filled.

No one can claim that Family First is playing party political games here. As several commentators have pointed out, Family First actually stands to gain from the larger number of legislative councillors that would be elected in any one term—that is, from the current 11 to 16. Some would argue that it is against our party's interest to vote down this provision in the bill and, indeed, in a strictly numerical sense, that is correct. However, that is not our primary focus.

Personally, and indeed I speak for my colleague the Hon. Mr Brokenshire, we prefer to fight harder for election for us as individuals and indeed for members of our party, knowing that we have voted for a system that would actually place the appropriate balance and measures on the government of the day. Therefore, we will be rejecting the reduction of the term from eight years to four years, despite the fact that, if we acted in our own selfish interest, it would be to our advantage to accept that proposal.

The traditional reason given for staggering the terms is to provide that the upper house and the lower house are not an exact mirror of each other after each election. This helps to provide greater stability for the state, limiting major changes in direction after each election, and it is the reason why many bicameral parliaments in Australia, including the commonwealth senate, New South Wales and Tasmania and even many around the world, stagger their terms.

In fact, I think it was pointed out by the Hon. Mr Lucas the other day but I also uncovered during my research and preparation for this speech that it is interesting that the government's position on this has changed quite substantially in a very short period of time, because it is on record not long ago strongly supporting the concept of the staggering of terms.

In fact, when the member for Mitchell in 2005 proposed having all legislative councillors up for election every four years, the government strongly opposed the bill. I have these comments from the Attorney-General from Hansard dated 9 March 2005:

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...

That was the Attorney-General back in 2005. Whilst the government has changed its position, we certainly have not and I would point out at this time that if this system that has been proposed here were in place at the last general election—that is, the 2006 state election—by my calculations, we would have had, I believe, five members of the No Pokies group elected to this place. Whilst that may have reflected the will of the people at that time, I think over the longer term that may not prove to be the case. That remains to be seen.

The third issue that is proposed by this law is to give the President of the Legislative Council a deliberative rather than a casting vote. From 1856 to 1973, both the Speaker and the President had a casting vote only in relation to constitutional matters, as I understand it. They could not vote for any measure unless there was an equality of votes on the floor. The Dunstan government reforms of 1973 include a provision that gave the President and the Speaker a casting vote on the readings of any bill that is now found in sections 26(3) and 37(3) of the Constitution.

The current proposal now extends this further to give the President but not the Speaker a deliberative vote; that is, effectively, full voting powers. I do not believe this is good law. There is a legal term for when a judge hearing a case starts barracking for one particular side and it is known as 'entering the arena'. When the President gains a deliberative vote, also, an element of impartiality is lost and the President becomes just one more participant in the arena.

I believe that it would undermine the respect that members and our constituents have for the office. It is important that we have an independent umpire to arbitrate debate in this place. We will not be supporting this provision.

Finally, I turn to the proposed deadlock provisions, which is the final new aspect of this bill. Apparently the new section is based on the equivalent in the Commonwealth Constitution, although, as the minister has stated, there is an important difference in that it will be for the House of Assembly to determine whether the position the Legislative Council has taken on a deadlock bill should result in a double dissolution and general election.

The numbers indicate again that, when we consider that the House of Assembly has 47 members and the Legislative Council under this proposal would have only 16 members, inevitably the House of Assembly's will is going to prevail. The question must be asked in these circumstances: why would you have a Legislative Council at all?

I believe that the South Australian Legislative Council is one of the most effective in keeping the government to account. This bill effectively strips that power away, and that is the primary reason Family First will oppose it. I will just make the point again that nobody could claim that we are in any way trying to serve our own political interests by opposing this bill; in fact, some of the elements of this bill, as I have outlined, actually would advantage us in a strictly electoral sense; however, we believe that the future of our state is much more important than our individual electoral aspirations. For that reason, we strongly oppose the bill.

The Hon. C.V. SCHAEFER (11:38): I rise to commend my colleagues, the Hon. Robert Lawson and the Hon. Robert Lucas, in particular, and the Hon. Dennis Hood, for their contributions. I think they have adequately put my position; however, I want to put on the record my absolute belief in a bicameral system of parliament and my equally absolute belief that these two bills before us are, in fact, an effort to diminish the power and the abilities of the upper house in the South Australian parliament.

It is very obvious that by reducing the number of members of parliament we would also reduce their influence and their ability to serve the people of South Australia. We are elected on a list system. As many older people would say, it is not a true preferential system but, rather, a list system; however we are meant to represent the whole of the state. I think for convenience many of us choose areas where we have expertise and interest, and we concentrate on those areas, particularly those of us who belong to a major party, and we rely on our colleagues to cover some areas.

As I have said, to reduce the number of members would, in fact, diminish our roles throughout the state. I do not believe that it would save any money whatsoever because, to fill the gap, those 16 people would inevitably have to have more staff and there would inevitably be a growth in the bureaucracy to take up the void left by those members of parliament. So, in my view, there is no advantage to having fewer members.

The proposal to have four-year rather than eight-year terms concerns me probably more than any of the other proposed amendments to the act, because the purpose of a two-house system is, in fact, to hold up legislation long enough for those who have an interest in it to be able to peruse it after amendments have been passed in the one place.

Inevitably, there will be landslide victories for one side or the other in the future. Had there been a mirror system (a four-year system) in 1993, the Brown government would have had control of both houses of parliament. I do not believe that would have been good for democracy, nor would it have been good for the governing party. I believe that there is a need and a place for minor parties, and it is in the upper house.

I also believe that there is a need for the upper house to be effective, to not mirror the make-up of the lower house. Inevitably, four-year terms would do that. It could be argued that eight years is too long. I would agree that six years would probably be preferable if the state could afford or put up with staggered elections in between its normal elections. I do not believe that is the case; I do not think anyone would want any more elections than are forced on them now.

The third reform ties the chair to the party that has put him or her there. It removes the independence of the chair. In fact, I am of the view that we perhaps should go down the path of the English system of having appointed chairs from whichever party alternately, making them truly independent chairs. The idea of the chair voting on every occasion, I think, removes their independence and their ability to perform their duties in the governance of the parliament.

In the time that I have been here, I have seen a gradual watering down of the difference between the parliament and political parties and the difference between the parliament and the government of the day. I think this particular amendment moves further down the path of tying people to one or other of the major parties.

As with the issue of deadlocks, I realise that that is the system in place in Canberra and that it does, in fact, work reasonably well but, again, it diminishes the powers of the upper house. It simply says, 'Well, you can have a look at it and, if you don't agree with us, we'll block you twice and then we'll bluff you with a double dissolution.' I have been a participant in a number of deadlock conferences over the years and I think that, with only one exception, a compromise was able to be reached between the two houses and the two major parties. This takes away the ability to negotiate between the two houses.

I see little good coming from this bill. There are a number of issues that could be taken up quite genuinely and in a bipartisan fashion which would possibly reform and streamline the running of both houses of parliament. They need to be discussed in a dispassionate and bipartisan way, but I cannot see any of them within this proposed 'reform'. In fact, it is a rather clumsy method for Mr Rann to say, 'Well, I have honoured my promise that I would do something with the rabble in the other house. I have found out that the people of South Australia do not want to get rid of them, so I will do it by stealth.'

I am absolutely and utterly opposed to these amendments. I think they do nothing for the governance of this state, they do nothing for the democracy of this state and they put more power in the government of the day—whoever that is—for no gain for those we are meant to serve.

The Hon. M. PARNELL (11:46): If this bill is the answer, then clearly wrong questions were asked. If this is the best that the government can do in relation to parliamentary reform and advancing democracy in this state, then clearly the government does not get it. This is nothing more than a cynical attempt to make the more democratically elected of the two houses less relevant and less effective.

The Greens have debated this matter internally over the past year or so and our position is crystal clear. Until we saw these bills we were expecting that the Premier would be true to his word and he would put an option to the people of South Australia to abolish the upper house; so the first thing the Greens resolved was that we were opposed to the abolition of the upper house.

It is hard to believe that the government ever thought it would get away with abolishing the house that is so much more responsive to the will of the people than the lower house. Look at the last election, look at the results. The people of South Australia clearly want checks and balances against the misuse of executive power and the dominance of the government in the lower house; and that is why the composition of this chamber includes such a substantial crossbench. Abolition was never going to be supported by the people of South Australia and it was never going to be supported by this parliament.

The next issue raised by the government was the number of members. In any parliament a critical mass of members is needed to properly fulfil the wide range of functions that are involved in scrutinising legislation and holding the executive to account. The Greens believe that maintaining the current number of MLCs is important, particularly in relation to the important but under-used committee function of this parliament. Currently, we have eight active select committees and 11 standing committees. These committees inquire in great detail into areas of government administration. We take evidence from experts in the community. We need a critical mass of members to be able to properly work those committees.

Most committees consist of between five and seven members. The South Australian parliament is already small when compared with parliaments in other jurisdictions. Every member of this chamber would have experienced committees not meeting for want of a quorum; and that is because there are so few of us trying to do so much work on behalf of this state.

The Greens oppose any reduction in the number of members of the Legislative Council. The traditional two to one ratio that is applied in other Westminster parliaments should remain here in South Australia. We cannot afford for the Legislative Council to be so few in number that we are ineffective in doing our work.

The next question raised is in relation to the term of members of the Legislative Council. Traditionally the term of upper house members has been twice the term of lower house members in order to provide for both stability and continuity in the face of wild electoral swings. Clearly, we have to strike a balance between the competing demands of maintaining a stable parliament and the right of electors to change their elected representatives at regular intervals.

The current system is that MLCs have eight year terms with only half the chamber facing re-election every four years. If we were to go to four year terms for members of the Legislative Council, then clearly the quota would be reduced and it would be easier for independent and smaller parties to get elected.

With four year terms the Greens would have had parliamentary representation as far back as 2002. On the other hand, research done by the parliamentary library has shown that there would have been some quite interesting results, including our former colleague the Hon. Nick Xenophon's ticket electing five people at one election.

The Greens in weighing up these two competing interests—that of continuity and stability compared with the right of the people to elect their representatives at regular intervals—have come down on the side of democracy and we are sympathetic to four year terms.

However, the Greens final position was always dependent on how the government packaged these measures. If the only question before us was going from eight year terms to four year terms—we think that is more democratic—we would have voted for it, but it has been packaged with a range of unacceptable measures. Therefore, we will be voting against it.

I come now to the deadlock provisions. As other members have said, the government does not even properly use the provisions we already have. I have been a member of one deadlock conference in relation to the Legal Profession Bill. We met once for 30 minutes and then there was complete silence: there were no meetings, discussions or negotiations. I agreed to be part of that process in good faith. I went there expecting to negotiate, discuss and come up with a good solution on that bill, but the government did not even give us the opportunity to do that.

The government wants to be able to go to an early election if the Legislative Council does not pass government bills, but the flipside of that coin is to ask: what about the sensible legislation that passes this council only to be stalled or defeated in the lower house, often for no good reason other than the government refuses to admit that it does not have a monopoly on good ideas?

Very often it votes against a bill, not because it is a bad bill but, rather, because it is not its bill. That is a remarkable and disappointing aspect of politics in South Australia.

The Hon. I.K. Hunter: That's a shameful observation!

The Hon. M. PARNELL: The honourable member interjects that it is a shameful observation. I can tell the honourable member that I have introduced bills into this parliament that have come from Labor bills in other states and territories. I am happy to admit that there is a range of good ideas out there. I want the best result for South Australia, and I will look to a range of sources. This government votes against Labor bills because they are not its current idea; it does not want anyone else to have credit for legislation.

What about the sensible bill that this chamber passed to fix up the solar rip-off; the big energy retailers who were refusing to pay a fair price for the electricity that they received from householders with solar panels on their roof? The Premier admits it is a rip-off but has failed to do anything about it. This chamber gave him the answer. We passed a sensible bill, but the government refuses to accept it, because the government does not want anyone else to have the credit for fixing up a mess of its own making.

Last night this chamber passed a bill to establish an independent commission against corruption. Here is the challenge to the Labor government: if you want a deadlock provision, let us make it work both ways. Let us go to an election when the more democratically elected house passes a sensible bill that the lower house rejects. If that is your concern—genuine deadlock resolution—let us make it work both ways.

The final position that the Greens reached when we debated this is to point out that, when it comes to genuine parliamentary reforms, there are far more pressing needs than tinkering with the composition of the Legislative Council. For a start, we could ask the House of Assembly to get its own house in order. We could look at how democratic that chamber is. We should be looking, for example, to the introduction of proportional representation and a return to multi-member electorates in the House of Assembly to make sure that that house was genuinely democratic, and that would improve and advance the concept of one vote, one value. The Greens support democracy, which is why we are opposing this bill.

The Hon. J.A. DARLEY (11:55): I rise briefly to indicate that I will be opposing these bills. As we all know, the main provisions are intended to reduce the size of the Legislative Council from 22 to 16, reduce the term of a member of the Legislative Council to four years, introduce new mechanisms for settling deadlocks and give the President of the Legislative Council a deliberative rather than a casting vote, as is presently the case. These changes have been presented to us as a take it or leave it package. Without repeating what has already been said by other members, I too am somewhat sceptical, but not surprised, by the government's approach on this issue.

The government has already conceded that abolishing the Legislative Council altogether is not going to happen. If the government was genuine about allowing the voters of South Australia to voice their opinions and decide once and for all the fate of the upper house then, as pointed out by Dr Dean Jaensch in a recent Advertiser article, surely it would have allowed them to decide which reform proposals they support and which they oppose. Instead, what is being proposed is a package of reforms which the government knows will not pass both houses of parliament with an absolute majority. It is another ploy by the government to attack the Legislative Council for not passing a bill which it says would put its fate in the hands of the voters.

The role of the Legislative Council as a house of review and watchdog cannot be underestimated. It serves an invaluable role in the legislative process, ensuring accountability, responsibility and transparency. As highlighted by Dr Clem Macintyre and Professor John Williams of the University of Adelaide in a paper entitled 'The embattled South Australian Legislative Council':

The fact that there has been no overall political control of the Legislative Council for the past thirty years means that the Council has been able to exercise an independent power, and its capacity to apply checks and balances to the government of the day has been enhanced.

The fact that minor parties and Independents have held the balance of power in the Legislative Council for the past 30-odd years highlights the important role that it plays and the strong community support for its retention.

The level of scrutiny that occurs in the Legislative Council simply does not happen in the House of Assembly. It provides the opportunity for debate and amendments to bills proposed by the government. While these amendments are usually met with opposition in the first instance, on many occasions the debate that occurs leads to a greater understanding of the reasons why the amendments have been moved an allows for a compromise position to be reached.

My colleague the Hon. Robert Lawson outlined very eloquently in his second reading speech the importance of the committee system and the effect that these changes would have on the Legislative Council's effectiveness in functioning properly in that regard. Macintyre and Williams, in the paper I referred to earlier, also highlighted that one of the most important ways the Legislative Council exercises independent power is through the committee system. They argue:

As has been the case in other Australian upper houses, the growth of a robust and independent committee system has enabled the South Australian Legislative Council to assert a greater level of scrutiny and maintain greater accountability over the governments formed in the House of Assembly. As South Australia is the only Australian state with no Law Reform Commission, and as it does not have a permanent anti-corruption watchdog [at least not yet I might add], the need for independent scrutiny is all the greater.

They highlight the following fact:

...the Legislative Council committees have the capacity to irritate the government and provide one of the key means of the Parliament acting as a check upon the behaviour of the executive government.

Having been a member of several committees since coming to this place, I can attest to the importance of the committee work in the parliamentary system.

While the Premier has abandoned his call for the abolition of the Legislative Council, it is also worth noting some commentary regarding the Queensland experience, the only state to abolish its upper house. Earlier this year, Jill Rowbotham from TheAustralian newspaper reported on the effectiveness of the upper house in an article 'Upper house is worth the effort'. In that article she referred to the work of Nicholas Aroney, reader in law from the University of Queensland who, together with two of her colleagues, examined the effectiveness of having bicameral parliaments in a book entitled Restraining Elective Dictatorship: The Upper House Solution? As highlighted in the article, Aroney argues that an upper house controlled by 'an opposition can apply much more pressure inside and outside parliament'. He states:

Upper houses can delay legislation getting through the parliament, meaning debate can be more effective and there is time for interest groups or stakeholders to mobilise against it...It facilitates greater public deliberation.

On the other hand, Aroney argues that 'Queensland is a place where the government simply dominates the parliament'. This is evidenced by the fact that Labor has been elected to a fifth consecutive term, something that does not happen elsewhere. He goes on to say that 'southern states have much more ebbing and flowing of the fortunes of their political parties'. Aroney makes the point that this is 'partly because governments are not challenged as deeply, so oppositions can make their arguments but are always out voted'.

The conclusion drawn is that Queensland should revert to the old bicameral system. I am sure that all members would agree that there is scope for reform in the Legislative Council but that it should be sensible reform worthy of debate rather than the disingenuous effort placed before us. The government's approach appears to be based on frustration and little else: frustration at not being able to pass legislation without thorough examination and scrutiny, frustration at the establishment of committees that scrutinise the action of the government and, more generally, frustration at not getting its own way.

Perhaps what ought to be of greater concern is the frustration of the community who elect the growing numbers of minor parties and Independents. This factor alone signifies the invaluable role that the Legislative Council plays in the legislative process, and the will of the community that the Legislative Council needs to be retained.

In their paper Dr McIntyre and Professor Williams highlighted the importance of good government over political convenience. The Legislative Council does not impede the legislative process; it encourages progress and effective debate and provides opportunities for voices within the general community to be heard and, indeed, acted upon. I am sure all members would agree that reform is always a good thing. That is why we all do what we do. Whether we agree that some reform to the Legislative Council is necessary is made irrelevant by this bill because of the ineffective and mischievous manner in which it has been presented to us and the manner in which it would be presented to the voters.

The Hon. S.G. WADE (12:02): I indicate my opposition to both Rann government Legislative Council reform bills. The council is rightly approaching these bills with a great deal of cynicism because they are the remnant of a power grab by an arrogant leader. We remember that in November 2005, without even consulting his own caucus, the Premier committed to the abolition of the council. While the Premier has backed away from his proposal to abolish the council, this set of proposals remains tainted by a determination to strengthen the power of the executive by undermining the house of parliament that it does not control.

I will not detain the council by dealing in detail with the range of issues highlighted by members who have previously spoken. Instead, I will make a brief observation on the need to check power for the sake of good government and refer to a couple of quotable quotes in relation to the benefit of that check on power.

In his paper 'A Defence of the South Australian Legislative Council', presented to the 2007 APSA conference, Jordan Bastoni of Adelaide University said that a second reason for the Rann government announcing the referendum is its conceptualisation of the relationship between the government, the parliament and the people. The comments of Rann and his ministers show them all to be adherent to a view of the democratic process that is becoming more and more prevalent amongst people in positions of power: the extreme prescriptive view of mandate theory. He quotes Stanley Bach on the operation of mandate theory, as follows:

Here is the mandate theory in full bloom. What need is there for any deliberative legislative process at all? The election determines a winner, so the winner—the government—has the right and responsibility and should have the power to do anything and everything it said it would do. The government allows the opposition to criticise its proposals, but the government will be violating its commitment to the public if it allowed itself to be swayed by the merits of the opposition's arguments.

It sounds remarkably familiar to the arrogance that we see repeatedly on sitting days in this place. We need to challenge this arrogant view of the government. It fails to recognise that both houses have a mandate: the house has a mandate to govern and the council has a mandate to represent broader community interests.

An upper house also avoids concentration of power. In this context I will quote from John Stuart Mill, who was writing in a book Considerations on Representative Government. He said:

I attach little weight to the argument oftenest urged for having two chambers—to prevent precipitancy, and compel a second deliberation; for it must be a very ill constituted representative assembly in which the established forms of business do not require many more than two deliberations. The consideration which tells most, in my judgment, in favour of two chambers…is the evil effect produced upon the mind of any holder of power, whether an individual or an assembly, by the consciousness of having only themselves to consult. It is important that no set of persons should, in great affairs, be able, even temporarily, to make their sic volo prevail without asking anyone else for his consent. A majority in a single assembly, when it has assumed a permanent character—when composed of the same persons habitually acting together, and always assured of victory in their own house—easily becomes despotic and overweening if released from the necessity of considering whether its acts will be concurred in by another constituted authority. The same reason which induced the Romans to have two consuls makes it desirable there should be two chambers—that neither of them may be exposed to the corrupting influence of undivided power even for the space of a single year. One of the most indispensable requisites in the practical conduct of politics, especially in the management of free institutions, is conciliation; a readiness to compromise; a willingness to concede something to opponents, and to shape good measures so as to be as little offensive as possible to persons of opposite views; and of this salutary habit, the mutual give and take (as it has been called) between two houses, is a perpetual school—useful as such even now, and its utility would probably be even more felt in a more democratic constitution of the legislature.

The government may say that we are not about abolishing the council, just reducing its power, but whether the government seeks to abolish the council or simply denude it of its power, as reflected in these bills, the removal of the balance of power between the houses has the same effect, and I believe it would lead to a very unfortunate concentration of power.

As a number of honourable members have already indicated, I am not closed to reform of the council. For example, I consider that we could better serve the people of South Australia by refocusing our committees. In particular, I was attracted to the suggestions made by the Hon. Robert Lucas in relation to a proposed committee structure. Further, I would like to look at ways in which we can more effectively engage the broader South Australian community, perhaps even in relation to key pieces of legislation. I note that in recent years the House of Lords has used its committees to not merely review bills before the parliament but also engage the community on draft legislation.

While I would welcome reform to better serve our state, I do not consider that the bills before us are a vehicle to explore those opportunities. They are not a bona fide attempt to improve the council. It is the fallback of a failed attempt to abolish the council, and to give it credibility would be to acquiesce in the first step towards abolition. I oppose both bills.

The Hon. J.S.L. DAWKINS (12:08): I rise to speak briefly on this bill and the accompanying bill and indicate my concern and opposition to both measures. I support the comments of particularly the Hons Robert Lawson and Rob Lucas but also other members of the chamber who have expressed a variety of concerns about these two pieces of legislation.

I will not go through every matter in the constitution bill, but I will briefly make some comments, first, about the proposal to reduce the number of members of this chamber from 22 to 16. The Hon. Mr Lawson brought to the chamber some details of the proportion of upper house members compared to lower house members in other parliaments; and, of course, we have 22 in this house compared to 47 in the other chamber, which I think he said is 47 per cent. More importantly, I think it means that our 22 members represent about one-third of the 69 state members of parliament in this state. That is similar to the proportion in the Senate of the total number of federal members, and it is similar in other legislatures around the country. I support that proportion being continued.

The other matter that comes to mind in relation to the number of members in this chamber is that I think there are probably very few members of this council who have never been subjected to some suggestions—sometimes good natured, but not always—from members of the lower house that we have no constituents, we have no electorate and we do not do any work. I think the Hon. Mr Hood alluded to the fact that members of the Legislative Council do a lot of work that goes unnoticed and a lot of work that House of Assembly members would never acknowledge. I think that work around the state is very important.

If we reduce the number of members in this council to 16, it has been pointed out by the Hon. Mr Lucas and others that, if you take out a couple of ministers (or, more desirably, three ministers and the President), that reduces to 12 the number of members available to serve on committees. I am a strong believer in committees established by this council, and in recent times I have had the privilege of chairing a couple that I think have had some impact. They probably have not been given credence by the government but they certainly had some impact behind the scenes.

If we get to a stage where we have a number of committees similar to that which we have now (and I think that is unlikely to change), it means that those members who are available to serve on committees will spend most of their time doing just that. As I have pointed out to people, my ability to be in places such as Berri, Leigh Creek, Modbury, Elizabeth, and elsewhere will be severely restricted because I will spend most of my time on North Terrace. While we have a duty to be here in the parliament building for some of our time, we need to allow members of the Legislative Council to spend as much time out in our electorate as possible.

Briefly, I move to the matter of four year terms. I am not entirely wedded to eight year terms, but what I am very strongly wedded to is the fact that one of the great strengths of this chamber is that, as well as being elected by a totally different system to that for the lower house, we have that half-in, half-out measure and we have staggered terms. So, at times such as 1993 and 2006 when the political spectrum moves significantly one way or the other, you do not have a replica in this council of what happened in the other place. As long as this council remains—and may it remain forever in the future of this state—it must have a significantly different form of election and term of service involving its members.

I intended to conclude at that point, but the Hon. Mr Hood made reference to the suggestion that the President of this chamber should have a deliberative vote, and I would like to comment on that. I think he made the good point that we have been very well served in this chamber by many presidents who take their role very seriously. While they are a member of one side or the other, as the Hon. Mr Hood said, they take seriously the role of being the umpire in many respects. I think that to give that umpire the ability to kick one way or the other in the field of play before then making a decision is foolish. With those remarks, I support the comments of many other members of the opposition and crossbenches, and indicate my opposition to these bills.

The Hon. D.W. RIDGWAY (Leader of the Opposition) (12:17): I want to make some brief comments about this piece of legislation and, in particular, the referendum proposed by the Premier some years ago to abolish the Legislative Council. I am of the view that it was just a response to the Premier's union mates when, in the first term of the Rann government, the Fair Work Bill was severely amended in the Legislative Council.

I think it is fair to say that neither the Premier nor the government really wanted that bill to pass in that form. However, he was able to say that it was those nasty people in the Legislative Council who gutted his piece of legislation. It was a bit of a sop to his union supporters and union mates when he said, 'I'll tell you what, I'll abolish the Legislative Council.' He made those bold statements that he thought the Legislative Council should be abolished without ever really thinking it through. Clearly, as we saw with the Constitutional Convention (which came as a result of the deal the government did with Peter Lewis), the community did not want to see the Legislative Council abolished at all and, in fact, wanted it retained.

There has been some ongoing debate, of course. The Premier suggested (and I think also the Attorney-General) that we would have a full four years of debate about a referendum before the next election. We now have only five months, so if this bill is to pass this chamber and we do have a referendum we will have five months of public debate prior to the next election.

We are now looking not at abolition but at certainly a very much watered-down backflip from the Premier's original position of abolition. We are now looking at four-year terms and 16 members and a couple of other administrative changes to the way that the Legislative Council works.

From the opposition's point of view, we have never been opposed to reform but now we have only five months for debate. I think the Electoral Commissioner has budgeted for something like $1.5 million to run this whole referendum. I recall the many months (or perhaps even a couple of years) for the republican debate, which was run nationally, yet in South Australia we are going to try to have a debate in the community over five months for a significant change to the way our democracy works.

The plan now is to have two million people by 2030 (it was originally 2050 but is now 2030). I am sure there will be no move to increase the number of members of the House of Assembly. With 47 members, there is probably no room to seat more in the chamber which was built for roughly that number of people. However, we are looking at having another half a million people. The minister opposite has been talking about the government's 30-year plan for Adelaide with extra dwellings and extra people. To reduce the number of members of parliament really is an attack on democracy in South Australia.

The minister and members of the government are often frustrated—and I do hope that my team is on that side of the chamber next year and that the team over there is over here. However, we have always been frustrated when it comes to select committees. The operation and function of this place requires at least 22 members. Some of the members opposite are laughing. Perhaps they would like to have a reduced number of members in this place so that they can chair three or four committees. They do not have to be ministers but they can still take home the same amount of pay with no actual responsibility.

Perhaps we have finally seen why they are happy to support a reduction in numbers—so that we can still have the same number of standing committees and, instead of chairing one or two committees, they can chair three or four committees, having a 60 per cent loading on their salary. I can see the Hon. Russell Wortley almost jumping out of his socks with excitement that he might chair three or four committees. The Hon. Russell Wortley cannot believe the thought of that; he has just woken up about the size of his pay packet.

We have seen one particularly useful reform, and that is why the opposition has never been opposed to reform. We have the Budget and Finance Committee which is chaired by my colleague the Hon. Rob Lucas. It was basically his baby and his brainchild to come up with that committee. It has been seen to be a very worthwhile part of the function of the Legislative Council, and I am sure it is a committee that will continue to exist, regardless of whichever party is in power, because it is another level of accountability and another check and balance on the government of the day. I think that is where the improvements and reforms should take place—not by reducing the number of members of parliament but by enhancing the role of the Legislative Council. Clearly, the government has no interest in doing that. We have seen this backflip from the Premier—going from a call for total abolition of the upper house to this watered-down proposal—when we should be looking at enhancing our democracy in South Australia, not diminishing or undermining it.

This government has had little respect for democracy in South Australia in the way it rides roughshod over the community. This morning we saw a large transport announcement. We do not have a transport plan in this state. In fact, I FOIed the minister's transport plan recently and got one page. This page is the plan he claims he took to Anthony Albanese in Canberra in order to get some funding from the federal budget, yet every other state has a proper integrated transport plan.

This government talks about reform but one of the things it should do is reform the way it operates so that it keeps the community informed of its long-term planning. We have a 30-year draft plan for Greater Adelaide but no 30-year transport plan. The minister opposite is talking about putting 150,000 people in Roseworthy but has no plans for them to get in and out of the city; there is no infrastructure plan.

A whole range of reforms need to take place long before we even consider a reduction of numbers in this place. The Hon. Robert Lawson has led the debate on behalf of the opposition, and the Hon. Rob Lucas, one of the wisest members in this chamber who has been here for some considerable time, has made some comments on behalf of the opposition. As I have not heard everybody's comments, I will be interested to read the debate in Hansard. With those few words, I indicate that I will not be supporting this bill.

The Hon. P. HOLLOWAY (Minister for Mineral Resources Development, Minister for Urban Development and Planning, Minister for Small Business) (12:25): It has been an interesting debate. We have heard everyone tell us how essential the Legislative Council is and that we are having this debate so that everyone is well informed about the future of the Legislative Council, but I think the best comment one could make on this is that most members in the chamber are not ready to debate most of the bills the government has put forward for the better provision of governance in this state, so we have had to do this one as a fill-in. That says as much as anything about this chamber.

The Hon. J.S.L. Dawkins: Where were your people when you had to vote on this in the lower house?

The Hon. P. HOLLOWAY: Well, you know that members opposite are doing this; that is the reality. I want to put on record that a number of other matters that we had listed will have to be delayed, notwithstanding the fact that we had a two-week adjournment before this sitting week and the bill has been around for a long time and still members are not ready to debate them.

Essentially, the arguments that were put forward all boiled down to self-interest. It reminds me of the words of advice that Jack Lang was supposed to have said to Paul Keating: always bet on self-interest, son; it's the only horse in the race that is always trying! I think one can see it here. I thought the comments that took the cake were those of the Hon. Dennis Hood when he said that cutting terms to four years would be in the interests of his party. It has reminded me of what a huge sacrifice we make in only going to elections every eight years rather than every four years. Yes, it is a big sacrifice we make! In my personal case, because I came in through a casual vacancy, I soon hope to be facing my second election in 14 years. It is a real sacrifice for the upper house not having to subject itself to the scrutiny of the electorate every four years!

I think that if one looks at all the arguments like those of the Greens, for example, one sees that their formula for reform is entirely in their self-interest. What I thought was most disappointing about the debate was that there was very little reference to the provisions, particularly the deadlock provisions. I believe that one can accept the need for a bicameral system where we have two houses of parliament but there really has to be a workable system of dealing with deadlocks between the two houses. It is one thing—

Members interjecting:

The Hon. P. HOLLOWAY: Because the current deadlock provisions do not work. They are unworkable. They were not properly changed. The last reform we had was in 1973; that is when the major changes were made to the Legislative Council. The deadlock provisions that existed were designed for a multimember system. That is why, for example, you not only had to have defeat of a bill across an election but you also had to have extra seats in each of the upper house electorates at the subsequent election. Those provisions are obsolete.

What is wrong with having a provision like the Senate? Is the Senate system so bad? The double dissolution provisions in the federal parliament have been used only twice but, as we can see at the present time with all the debate about emissions trading, they do at least provide a focus on some of the issues. At least the government should have that capacity. Surely, if you are elected (as the federal government was) with a mandate for a particular course of action and if that proposal is rejected twice within the parliament, shouldn't the government be able to have an election on that matter? What is so wrong with that? I think it is illustrated here in this debate: nobody even tried to address that issue and argue against that provision.

We have heard a lot about democracy from a number of people. Take the proposal to give the President a deliberative vote. Why should the President be disenfranchised? Why should the voters who voted for the President (members of the Australian Labor Party) be effectively denied a vote? How is that in any way democratic? It is not democratic. Everybody who is elected here should have the same vote as everybody else. Incidentally, I think one of the reforms that should also come in is one that involves Independent members. I note that the Independent members all have additional staff and additional resources. Apart from the 50 or 60 days we sit in here, they can be out in the media every moment of their lives. They have nothing else to do, effectively, on those days because, judging by what happens, they certainly do not appear to be preparing for the legislation. They can be out there every day. Why should they have more resources than members of either the Liberal Party or the Labor Party?

Whether the President is Liberal or Labor, why should the party be effectively disenfranchised and one vote down? If the President had had a deliberative vote, truly reflecting the vote of the people at previous elections, the results may well have been different on a number of occasions, and they should have been. The decisions that this council makes should reflect the wishes of the electors, but again nobody really sought to address that.

The main argument that appeared to be put in opposition to these matters—particularly the change in the size of the council—was the need for scrutiny, and this came up time and again. Yes; we do need scrutiny in our political system, but there has to be a balance between scrutiny and the right of a government to govern. If one has scrutiny to the extreme, where senior public servants spend hours providing information for parliament, rather than actually doing their job in relation to the business of governing the state, the less effective they will be.

I think that one of the real crises that democracy is facing is that, because our media is increasingly focussing on Independent members and the like, increasingly giving them political coverage, it has got to the stage now where the government can make an announcement and the media is not interested. However, when an opposition member says something—in many cases, totally untrue—it will be given completely unedited, unrestricted coverage. There is a shift in the balance there.

If we are developing in this state (and I believe we are) a system where there is a strong vested interest in making the government effective, if an opposition wants to win office, there are two things it can do: it can come up with better policies or it can try to effectively sabotage the government. It can try to effectively make the government ineffective. It can delay it. That is increasingly the direction that we are seeing with an opposition in this country.

We have been through it all before. A whole lot of Independents were elected to parliament back in the 1930s. The numbers became so great that eventually the public realised that it was not the way to go and they were all tipped out. Probably it is necessary to go through cycles of this. However, the one thing that the people of this state want is good government. They want the government to be able to govern.

In many cases, what the public is not aware of is the extent to which the capacity of government to deliver on those things is restrained and, I would suggest, unreasonably restrained. That is why, in relation to double dissolution provisions and the like, the government of the day—whether it is Labor or Liberal—should ultimately have some capacity to deliver on its promises after an election.

Yes; we can keep setting up more and more committees and we can get more and more senior public servants spending their time, taking them away from government, making them less effective and putting their time into preparing reports for parliamentary committees. We can keep adding so-called accountability provisions in bills which are adding millions and millions of dollars in extra reports and extra scrutiny, but it all takes dollars and cents away from providing the services that the people of this state want. That is a real challenge that is happening. It is something that sooner or later our democratic system must address. There must be a balance.

Yes; there must be accountability. I have been in opposition. I know what it is like and I know what oppositions are like. I know how they tend to have conspiracy theories about every action that a government takes—that is all part and parcel of the process. An opposition will inevitably try to make government difficult, but at the end of the day there should be reasonable means for resolving disputes. Governments, at the end of the day, have to be able to govern. What is the point of keeping a government accountable if the government does not have the capacity to do anything in the first place? I think that is really a very important issue for democracy.

I am straying away from the bill, but nonetheless it needs to be said. If, perhaps, all those academics like the Hon. Stephen Wade and others spent a bit more time out of their ivory towers, looking at the practicality of government and looking at these issues about where the balance should lie, we would all be better off.

It is perhaps interesting that members such as the Hon. Mr Lucas and others concede that there is a need for change in the upper house. One thing that I want to put on the record is the fundamental dilemma we face in trying to get change to the Constitution of this state. Why do we have four particular issues on this referendum? Why can't we deal with them separately? I think this does fundamentally act as a restraint. I just want to put on record the answer to that.

The second bill—the companion bill to this one, if you like—cannot come into operation unless it has been approved by the electors in a referendum. It is a procedural bill. What we need to address is why all four reforms are in a single bill. There is a good reason for this. A referendum question must relate to a bill. So, the question that people would decide would be: do you or do you not support a particular bill?

So, while there can be multiple questions relating to multiple bills, there cannot be a single question posing a choice of multiple bills. If multiple questions are put to the electorate, there is no guarantee as to what combination of questions, if any, will receive a majority of votes. Yet some combinations of reform would be ineffective if passed; in particular, the length of term, for example, cannot be reduced without some sort of amendment to the deadlock provision: either the government's proposed amendment or some other amendment. Other reforms can stand alone legally but lose significance if not passed in combination with others. In particular, the change to the President's vote is linked to the change in the number of members.

The government opposes any proposal that would split up the bill, because it creates a risk that the way the electorate expresses its wish will not be able to be implemented. It would be impossibly complex to advise the public on all possible permutations of vote. In any event, the government's reforms are a package designed to have the combined effect on the role of the council. If they are diluted, the benefits will not follow.

What that means is that ultimately, if there is to be change to this council, it either has to be done outside the Constitution or we are stuck with the Constitution. I know of a famous constitutional lawyer who said of Australia that, in constitutional terms, Australia was the frozen continent because of the rejection of referendums, and I guess this state is similarly placed.

If we are not to have referendums that cover a number of issues that are all interrelated in terms of the effect of the change, I guess that the only alternative is to have a series of single referendums over a particular period but, of course, that would detract from the whole package of measures.

It is almost inevitable, I suppose, that there will be no change to the upper house; that was expected from day one, but it does not mean that we should not try. It certainly does not mean that this place is perfect. It certainly does not mean that the structures we have in this place are what a country needs in the 21st century to go ahead. All around us, society is changing. The media is changing. Newspapers, for example, are becoming increasingly obsolete.

The Hon. J.M. Gazzola: Even the House of Lords has changed.

The Hon. P. HOLLOWAY: Well, exactly. Lots of arguments were put during the debate about bicameral systems and upper houses. As the honourable member said, the House of Lords—on which this place is based, and which has a 750-year history—is changing enormously. In fact, the House of Lords now has far less influence over the United Kingdom parliament than this council has over the South Australian parliament.

The Legislative Council of South Australia is one of the most powerful upper houses in the world. There probably is not one anywhere else. Of course, members want it to be that way, because it is power without responsibility: oppositions can control what governments do, and they can do so without being held accountable. If this bill was passed, at least the government of the day might have had some opportunity, through double dissolution provisions, to be able to keep the upper house accountable.

This is one of the only places in the world where an upper house can reject legislation and not be held accountable. Anywhere else in the world the upper house would be held accountable. That will not change. This bill will be rejected—that was inevitable—but the need for reform will not go away. Inevitably this state will be much the poorer for our not having reform because, ultimately, the cost to this state will be enormous.

The PRESIDENT (12:42): As this is a bill to amend the Constitution Act and provides for an alteration to the constitution of the Legislative Council, its second and third readings are required to be carried by an absolute majority. This bill is of such a nature as to require the second reading to be carried by an absolute majority of the whole number of members of the council. I have counted the council and there being present an absolute majority of members, I put the question: that this bill be now read a second time.

Honourable members: No!

The PRESIDENT: There being dissenting voices, a division must be held. Ring the bells.

The council divided on the second reading:

AYES (7)
Finnigan, B.V. Gago, G.E. Gazzola, J.M.
Holloway, P. (teller) Hunter, I.K. Wortley, R.P.
Zollo, C.
NOES (13)
Bressington, A. Brokenshire, R.L. Darley, J.A.
Dawkins, J.S.L. Hood, D.G.E. Lawson, R.D. (teller)
Lensink, J.M.A. Lucas, R.I. Parnell, M.
Ridgway, D.W. Schaefer, C.V. Wade, S.G.
Winderlich, D.N.

Majority of 6 for the noes.

The PRESIDENT: As section 26 of the Constitution Act indicates that the President can have a vote on this matter, I exercise that right. Therefore, there are eight ayes and 13 noes and the second reading is lost.

Second reading thus negatived.

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