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Legislative Council - Fifty-First Parliament, Third Session (51-3)
2009-09-23 Daily Xml
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CONSTITUTION (REFORM OF LEGISLATIVE COUNCIL AND SETTLEMENT OF DEADLOCKS ON LEGISLATION) AMENDMENT BILL

Introduction and First Reading

Received from the House of Assembly and read a first time.

Second Reading

The Hon. P. HOLLOWAY (Minister for Mineral Resources Development, Minister for Urban Development and Planning, Minister for Small Business) (18:01): I move:

That this bill be now read a second time.

I seek leave to have the second reading explanation inserted in Hansard without my reading it.

Leave granted.

For several years it has been ALP policy to support our bi-cameral Parliamentary system, but to investigate the reform of the Legislative Council. In November 2005 the Premier announced the Government's intention to seek the views of the South Australian voters at the 2010 election through a referendum. The reforms suggested were reducing the tenure of Members of the Legislative Council from eight years to four years, reducing the number of Members of the Legislative Council from 22 to 16 and having all Members stand for election at the same time. In honouring that commitment the Attorney-General has had Bills drafted that will enable the voters to choose whether they want to reform the Legislative Council in this way and also substitute a better procedure for dealing with deadlocked Bills, or to keep the status quo.

The Bill I introduce today, together with an accompanying Bill for holding a referendum, is for the purpose of achieving that. The referendum would be held at the next general election in March 2010.

This Bill would amend the Constitution Act 1934 to achieve the reforms of reducing the number of Members of the Legislative Council to 16 and reducing the terms of MLCs to four years coinciding with the terms of Members of the House of Assembly.

In addition, it would replace the current deadlock provision, which is so cumbersome that it is not used. The new provision is based on the equivalent in the Commonwealth Constitution, although 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 the deadlocked Bill should result in a double dissolution and general election.

At present, the President of the Legislative Council has only a casting vote. Since 1973 the President has also been able to indicate his concurrence or non-concurrence in the passing of the second and third reading of a Bill to alter the Constitution Act. This Bill would give the President a deliberative vote on all questions, instead of only a casting vote and the very occasional and limited opportunity to indicate concurrence or non-concurrence.

Mr President, before addressing the proposed reforms in greater detail, I wish to advise honourable Members that the Government has given serious consideration to the suggestions that have been made to the effect that the Bill should be split into four separate Bills. Three potential problems with the proposal of asking the electorate to vote on four separate Bills, each only amending the Constitution in a particular way.

One is that the putting of multiple Bills to the electorate by referendum is unprecedented.

The Constitution stipulates that referendum question must be in terms of approval or otherwise of 'a [particular] Bill'. Because of the wording of section 10A(3) of the Constitution Act, there must be a Bill in place to which the referendum question relates.

Putting more than one Bill to the voters at a referendum has no Australian precedent. Whilst there are several examples of multiple proposals being put simultaneously to voters, in each case those proposals have been quite distinct, or related and not inconsistent, and contained in the same Bill. The closest law we have on the topic arises from Boland v Hughes in which an individual challenged the Hawke Government's proposed referendum to extend the right to trial by jury, to extend freedom of religion and to ensure fair terms for compulsory acquisition of property. This bundle of separate reforms was contained in a single Bill. The plaintiff claimed that the referendum did not relate to 'a proposed law' (the equivalent of section 10A in the Commonwealth Constitution). Note that the Government did not attempt multiple Bills but inserted separate unrelated proposals in one Bill. The plaintiff's application was rejected by Mason CJ of the High Court. The Chief Justice said; '… in conformity with the doctrine of parliamentary supremacy, … there is no relevant limitation or restraint on Parliament's capacity to formulate an amendment or amendments to the Constitution in the form of one Bill, if the Houses so decide.'

The Chief Justice's statements give some support for the view that multiple proposals may be put to the electorate in a single Bill. However, the fact that multiple Bills have never been put before might invite a legal challenge. Although it would seem that the risk is low, it nevertheless would be uncharted waters.

Any legal challenge could only be made in a court after the Bills had passed both Houses (i.e. after Parliament had approved the Bills being put to the electorate by referendum). The bringing of an appeal would seriously undermine any chance of success of a referendum held in March 2010, before the appeal was heard.

The second, more important problem with splitting the Bills into four is that some of the reform proposals can only succeed in conjunction with others. That is, some of these reforms are only workable or desirable in particular combinations.

Further, at least one of the combinations of possible responses is unworkable (irrespective of which order the questions are asked in). The reform of the deadlock provision can stand alone, but it is also is a necessary prerequisite for reducing members' terms.

Section 41 of the Constitution currently provides that a deadlock is resolved by dissolution of the Legislative Council. The subsequent election of members is undertaken in a manner that presumes staggered elections in accordance with the current scheme for election of Legislative Councillors. Accordingly, the deadlock provision must be passed in order for the terms to be reduced in length. This means that it would be dangerous to put these two proposals in separate Bills and risk the electorate voting for the reduction in length of terms but not to reform the deadlock provision.

There may be other outcomes that are unworkable or undesirable such as a change to the President's vote without a reduction in the number of Members.

The problem of dependence of at least one of the reforms on another reform creates an insurmountable barrier to the proposal of putting four separate questions to the electorate by four separate Bills.

Thirdly, and related, is the problem that none of the four Bills could be guaranteed to accurately set out the consequential amendments arising from the primary reform, because those consequential amendments would depend on what was voted on.

Each of the four Bills would be drafted as if it were the only Bill to be approved by the electorate. However, if two Bills were approved, there might be consequential amendments associated with the combination of Bills that are dealt with in neither Bill. The Government would be faced with the prospect of attempting to amend the Bill that had been put to the electorate.

Each Bill for reform needs to be supported by its own referendum machinery Bill. If four questions are to be put to referendum, eight Bills are required.

What this demonstrates is that the splitting of the proposals into four Bills would be very problematic. The Government has considered it but decided that it cannot safely be done.

The Bill as introduced could not come into operation unless first it is passed by an absolute majority of both Houses of Parliament and then approved by South Australian electors at a referendum.

This means that the general election to be held in March 2010 will be conducted according to the provisions of the Constitution Act as it now stands. Eleven Members of the Legislative Council will retire and there will be an election to fill eleven seats. Those eleven Members will be elected for terms of eight years. However, if the electors approve the reforms, all the Members of the Legislative Council will retire at the general election in 2014, or at any earlier general election. At that election there will be only 16 seats to be filled.

If the Bill is approved by the electors, the new deadlock procedure would come into force on the Bill receiving the Governor's Assent. This would be soon after the results of the referendum are known.

The deadlock provision - section 41 of the Constitution Act - is entrenched. To alter or repeal it, there must be a Bill passed by an absolute majority in each House of Parliament and then the Bill must be approved by the electors in a referendum.

If the proposed reforms of the Legislative Council are approved, they would be irreconcilably inconsistent with section 41. At the least, section 41 would have to be substantially amended. So, a referendum on this Bill will be necessary for legal constitutional reasons, as well as because it has been promised.

If these Bills are passed by absolute majority, the referendum will be held at the next election in March 2014.

Mr President, while these reforms are very significant ones, the concept of change to the Legislative Council is not, of course, new. The Opposition proposed similar changes in 2000. The Government looks forward to its support.

Number of Members of the Legislative Council

Since proclamation of the Province of South Australia on 28 December 1836 under the South Australian Colonisation Act 1834, the composition of the upper house in South Australia has been changed on a number of occasions. The number of Legislative Councillors has fluctuated from 18 to 24. From 1857 to 1881 there were 18 Members. From 1881 to 1901 there were 24. From 1901 until 1913 there were again 18 Members. From 1913 to 1973 there were 20. Since 1973 there have been 22.

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.

The desire by our business and community leaders to seek to have Government policy coherently reflected in legislation was described by one honourable Member as the Government 'jamming its program unmolested through Parliament'. I think molestation of the legislation is a very apt description for the other place's contribution to the Government's legislative agenda.

Clearly, if there is to be a house of review there needs to be a workable solution for impasses. A deadlock resolution provision was inserted into the Constitution Act in 1881. It requires the dissolution of both Houses and fresh elections, or the election of two additional Legislative Councillors. It has never been used. It would be difficult to imagine the circumstances, today, in which it would be responsible for a Government to put the State to such expense and inconvenience, however clear the mandate was for a particular law. Labor attempted to change it in 1966 but failed in the Legislative Council. The State needs a modern and realistic mechanism for dealing with deadlocks. The Government has devised such a mechanism. A further forty years has passed and that is enough.

Under the Reform Bill, the mechanism involves these steps.

A Bill, within 45 sitting days from transmission to the other place, is rejected or not passed in that other place, or amendments are proposed that are rejected in this place.

The House again re-passes the bill after a three-month interval and it is again rejected by the other place, or amendments are proposed that are rejected by the House within 30 sitting days.

The House may then resolve that it is appropriate for both Houses to be dissolved on account of the position taken by the Legislative Council on the bill.

If the House so resolves, then His Excellency the Governor dissolves both Houses, provided it is not within 6 months of a general election.

Following the election, this House again passes the Bill.

Within 30 days of transmission, it is again rejected in the other place.

His Excellency the Governor may then proclaim a joint sitting of both Houses.

The Bill is passed by an absolute majority of the total number of the members of both Houses voting together.

The Bill may then be presented to His Excellency the Governor for assent.

This mechanism is similar to that operating at the Commonwealth level. It gives the other place several opportunities to consider and negotiate on a Bill without what is effectively, today, a right of veto. This is far closer to the proper review character of a second chamber than the model we have today.

If the Reform Bill is approved by the electors it will be presented to His Excellency the Governor for assent immediately, but the reduction in the number of Members will take effect from the 2014 election or any earlier general election. This delay is necessary to accommodate the staggered nature of the terms of members of the Legislative Council. The new four year terms will start immediately. There will be no special provisions for the six who miss out on a seat at the 2014 general election because of the reduced size of the Council. In other words, the incumbents - including any who have just won a seat at the 2010 election - will all continue to sit until 2014 but at that point all of the seats will become vacant and subject to election.

I commend this Bill to the House.

Explanation of Clauses

Part 1—Preliminary

1—Short title

This clause is formal.

2—Commencement

The measure will need to be submitted to a referendum under the proposed Referendum (Reform of Legislative Council and Settlement of Deadlocks on Legislation) Act 2009. (If this measure does take effect as an Act, the sections relating to a reduction in the number of members of the Legislative Council, and the term of office of members of the Legislative Council, will come into operation immediately before writs are issued for the first general election of members of the House of Assembly next ensuing after assent.)

3—Amendment provisions

This clause is formal.

Part 2—Amendment of Constitution Act 1934

4—Repeal of section 10

Section 10 of the Act is to be repealed by virtue of the scheme proposed by new section 41.

5—Substitution of section 11

From the commencement of this provision, the Legislative Council will consist of 16 members.

6—Amendment of section 13—Casual vacancies

These amendments are consequential by virtue of clause 7, which proposes that all members of the Legislative Council will retire whenever the House of Assembly is dissolved or expires.

7—Substitution of sections 14 and 15

The term of a member of the Legislative Council is a term expiring on the dissolution or expiry of the House of Assembly. A Legislative Council election will then take place whenever there is a general election for the House of Assembly.

8—Amendment of section 25—Continuance of President in office after dissolution or retirement

This clause is consequential on clause 7.

9—Amendment of section 26—Quorum of Council

This clause contains a consequential on clause 5. It is also proposed to amend the Act so that the President will have a deliberative vote on any question before the Council but will not have a casting vote. In the event of an equality of votes, the question will be lost.

10—Amendment of section 38—Privileges, powers etc of Council and Assembly

This clause is consequential on clause 11.

11—Substitution of section 41

This clause sets out a new scheme with respect to the settlement of deadlocks between the House of Assembly and the Legislative Council. It is based on the scheme under section 57 of the Commonwealth of Australia Constitution Act. Essentially, the scheme provides for a double-dissolution trigger if a particular Bill is rejected on 2 occasions by the Legislative Council, taking into account some specified time periods and other related requirements, and then for a joint sitting if the Bill is rejected on a third occasion following the ensuing general election.

12—Amendment of section 57—Restoration of lapsed Bills

This clause is related to the operation of clause 11.

Schedule 1—Transitional provisions

All members of the Legislative Council will be required to retire immediately before writs are issued for the first general election of members of the House of Assembly next ensuing after assent (taking into account the requirement for a referendum before assent). The new deadlock provisions will only apply in relation to Bills introduced into the Parliament after the commencement of this measure.

Debate adjourned on motion of Hon. D.W. Ridgway.

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