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Legislative Council - Fifty-First Parliament, Third Session (51-3)
2009-10-13 Daily Xml
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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 23 September 2009. Page 3303.)

The Hon. R.D. LAWSON (16:59): The Liberal party is opposed to the provisions of this bill. We believe in the bicameral system of government. We believe that a parliament comprising two houses with co-equal powers is important. It is not some new innovation: it is a system of government which has evolved over the centuries, with its origins in ancient Greece and Rome, and it has been adopted across the world. On the other hand, for a long time, the Labor Party had a policy of abolishing the upper house. It now professes that that policy has been changed. The Labor Party now seeks to neuter the upper house so that it is no longer an effective legislative chamber. The amendments which are sought to be made by this bill are fourfold, as follows:

1. To reduce the size of the Legislative Council from 22 to 16 members.

2. To reduce the term of a member of the Legislative Council from two assembly terms, as it now is, to one assembly term and to require all members of the Legislative Council to retire at each election.

3. The bill seeks to alter the mechanism for the resolution of deadlocks by providing, in effect, that the will of the House of Assembly will ultimately override that of the Legislative Council through the mechanism of a joint sitting.

4. The bill seeks to give to the president of the Legislative Council a deliberative vote in all circumstances.

This bill represents a significant backflip by the Rann Labor government. In November 2005, before the 2006 election, the Premier announced that, if Labor won the election in 2006, it would 'hold a referendum at the 2010 state election to abolish the upper house of the parliament.' So, the proposal was to abolish the upper house. This was, I should say, at a time leading into the 2006 election, and it was a solemn promise which was applauded by The Advertiser newspaper, which has long been antipathetic to the Legislative Council, and also to curry favour with Business SA, which had a similar proposal.

The proposal of Business SA, The Advertiser and some supporters of abolition has always been that the government in the lower house should be able to get on with the business of governing, do whatever it likes, and not have to be answerable or accountable to the people through some other mechanism. They crave the Queensland model, a single house of parliament in which the government of the day can introduce a bill at 10 o'clock and force it through by lunchtime. There have been occasions in Queensland where legislation has been passed if not before lunch certainly before dinner on the same day of introduction.

Those opponents of the Legislative Council appreciate neither the importance of having a government that is held accountable and the importance of mechanisms that hold a government accountable. It is undoubtedly true that a government formed in the lower house, and only answerable to the lower house, makes the lower house a rubber stamp for the actions of the executive of the day. In November 2005, the Premier said:

I think it's time to modernise our parliament so that it reflects the demands and expectations of a confident state as it prospers and grows into the 21st century. Let's face it, in my view, the upper house has become a relic of a time in our democratic history that is long gone. It has passed its use-by date.

He went on to say:

It is not a bear pit—it is a sandpit. It has become a circus of smear—a den of petty game playing, and it is clear that it has lost its way. Like many other South Australians, I do not believe this house of parliament serves the people as best as it could or should.

He went on to describe the proceedings of the council as a 'farce', and claimed that members do not even wish to sit in the evening to debate important legislation, when, as any observer of the South Australian parliament, certainly during this year, will have observed, the Legislative Council has sat into the evening far more often and for longer hours than the House of Assembly.

The reasons given by the Premier on the occasion when he promised a referendum to abolish the upper house were really not reasons or arguments at all; it was pure abuse.

The Hon. R.I. Lucas: Fatuous and self-serving.

The Hon. R.D. LAWSON: Self-serving and fatuous, as the Hon. Rob Lucas mentions. And, of course, egg was all over the Premier's face after the March 2006 election, when it transpired that he was not the most popular politician in South Australia, but that the Hon. Nick Xenophon was by far the most popular politician in South Australia, and the South Australian electorate gave him an enormous endorsement. That was an endorsement not merely of the Hon. Mr Xenophon as an individual but of the work that he was doing through the Legislative Council. Mr Xenophon alone had no power, but with an effective Legislative Council, which represented the wider interests of the state, he was able to garner terrific support. The anger of the Premier at the revelation that he was not the most popular politician by any means was manifest.

Why is it that the government has abandoned its promise to have a referendum on whether to abolish the upper house? The reason given in the second reading speech is a specious one. The Attorney-General said that the government has 'listened to the people' and decided that it would be 'a waste of time and money to go to the people with a question to which we already know the answer'.

It was not the fact that the government had listened to the people. The government knew at the time the Premier made his announcement in November 2005 that the wider community supported the existence of the Legislative Council; if he did not know that, he clearly had not been reading polls that have been held over the years on that very point.

The claim by the Attorney-General, when he introduced the bill, that the government had suddenly listened to the people and changed its mind suggests that there had been some change in public sentiment after November 2005. That is not the case. The Rann Labor government, in order to secure power, reached a deal with Peter Lewis, which made him speaker of the parliament.

The ACTING PRESIDENT (Hon. J.S.L. Dawkins): I remind the member that he is the Hon. Peter Lewis.

The Hon. R.D. LAWSON: The Hon. Mr Lewis became the speaker, and a Constitutional Convention was held at great expense. Taxpayers spent over $700,000 on a Constitutional Convention, which had randomly selected citizens meet in Parliament House over a weekend. It polled those people, both before and after their educative sessions. The Constitutional Convention also involved meetings all around the state in so-called community consultation.

The final report of that body was tabled in November 2003. If the Premier did not already then know that the Legislative Council was popular and that its retention was something the community desired, he clearly knew that from the report (if he ever read it) of the final deliberations of the Constitutional Convention because the overwhelming number of delegates supported the existence of the Legislative Council. So, the claim of a promise to hold a referendum to abolish the council is an absolutely specious one.

It was the government that dreamt up the four changes (and I call them changes and not reforms) that are suggested. It is also interesting that, in his statement in November 2005, the Premier said that the referendum would include alternatives to the abolition of the council. He suggested that these alternatives would be put to the people and that they would have, as it were, options to make choices in the referendum. That has not occurred. What we see is one bill, one proposed referendum, which is contained in a cognate bill, and there is no choice for the people. This government has delivered these proposals as a 'take it or leave it' package, and it should be considered on that basis.

I will examine briefly the four proposals. The first is to reduce the number of members. The second reading explanation provides no justification at all for reducing the Legislative Council from 22 members to 16, other than the irrelevant statement that, at various times in South Australia's history, there have been between 18 and 24 members. No explanation is given. The council was last increased on a proposal from the Dunstan government and increased at that time from 20 to 22 members. It was good enough in the 1970s for the council to be increased at the same time as the current electoral system was introduced. It was appropriate to do it then.

No reason at all was given why the council should be reduced in numbers. Rather than actually advancing some reasons, in his second reading explanation the Attorney-General rebutted an argument that nobody has actually put. He claimed that opponents of this proposal would say that there would be too much work for 16 members. He claimed, to use his words, that there is 'a good deal of make-work going on' in the Legislative Council. He claimed that the Legislative Council was setting up committees to examine 'everything under the sun'. This was not an argument; it was mere abuse.

Of course this government did not like the fact that some of the select committees that have been appointed by the Legislative Council have investigated matters that the government tried to bury—for example, the infamous Atkinson/Ashbourne/Clarke affair, which ultimately led to the Premier's principal adviser being charged with an offence of corruption of public office. That select committee revealed the fact that, because the Premier had conducted an in-house botched investigation, conducted by the head of his own department—

The Hon. B.V. Finnigan interjecting:

The ACTING PRESIDENT: The Hon. Mr Finnigan has just arrived in the chamber. He ought to take some time to examine what is happening in the debate. The Hon. Mr Lawson has the call.

The Hon. R.D. LAWSON: That inquiry initiated in this council revealed that, as a result of that secret botched inquiry, evidence was able to be altered and not put before the jury—a disgraceful attempt by the government to cover up an affair. The stashed cash affair—

Members interjecting:

The ACTING PRESIDENT: The Hon. Mr Lawson has the call and interjections from both sides of the chamber are out of order.

The Hon. R.D. LAWSON: It is no surprise that the Hon. Mr Finnigan is a vociferous opponent of an independent commission against corruption in South Australia, because he does not want an independent body shining a spotlight on the activities of government, and his party does not like the fact that the Legislative Council is the one mechanism in our system of government that enables a searchlight to be shone into some of the murky corners of the activities of this government.

It is interesting to note that in this particular proposal for a reduction in numbers there is no suggestion by the government that there will be any substantial saving or that the overall cost of government will be reduced. As anybody with any familiarity at all knows, merely reducing the number of members in this chamber will not necessarily lead to any significant reduction in costs at all. It is clear that those members remaining would require additional resources and staff to undertake the necessary work that would have to be done.

The delegates to the 2003 constitutional convention were polled on this very issue of the size of the Legislative Council, and the delegates were provided with material. Before the convention, 58 per cent of them considered that the size of the Legislative Council was about right, but after hearing the arguments, learning more about the functions of parliament, it went up from 58 per cent to 65 per cent of delegates being of the opinion that the size was about right.

When one looks at the relative sizes of the bicameral parliaments in the Australian system, we see that, with our numbers in this council representing about 47 per cent of total members of parliament, that is about the general level. For example, in the federal parliament, as fixed by the Constitution, there are 150 members of the lower house and 76 senators, so the proportion is about 50 per cent. In New South Wales the upper house represents about 45 per cent; in Victoria it is 45 per cent; in South Australia it is 47 per cent; in Tasmania it is 60 per cent (so it has a larger proportion of members of the upper house); and, similarly, in Western Australia 61 per cent of parliamentarians sit in the upper house. We are about right as it stands presently at 22 members.

No argument is mounted to say that we are saving costs or that we are out of line with other bicameral parliaments. There is really no argument that the workload of the Legislative Council does not require 22 members. Any lesser number of members, as members in this chamber will know, would lead to a chamber in which the resources of the members is unduly stretched. The reason the government wants to reduce the number of members of the Legislative Council is that it wants to reduce its effectiveness. Committees will not be able to function properly because the workload will be spread amongst too few members. This is a transparent attempt to reduce the effectiveness of the Legislative Council, the one body in South Australia that has the capacity to hold the government accountable. There is no justification for it at all.

It is probably unnecessary for me to other than mention the computations made by the parliamentary research library and, in particular, Jenni Newton, the Director of Research. These papers have been circulated to members and show that the composition of a Legislative Council containing only 16 members would not have been markedly different over recent years. This would not have markedly diminished the capacity by the major or minor parties, although it must be admitted that in 2006 a 16 member Legislative Council would have elected three and not two of Mr Xenophon's No Pokies Independent group. I do not criticise the proposal on the basis that it is simply a self-serving proposal to improve Labor's chances, but I say that it is a self-serving proposal in that it is designed to reduce the effectiveness of the Legislative Council, and thus reduce accountability.

The second proposed change is to reduce the terms of members of the Legislative Council from two House of Assembly terms, which they currently serve, to one term. The government has provided no argument for this particular so-called reform in its second reading explanation, other than the fact that the Premier mentioned it when he announced the referendum proposal, and that was in 2005.

Although this proposal is portrayed as reducing the terms of members from eight years to four years in order to generate popular support, in reality it is a proposal to abolish staggered terms. The issue we ought to be discussing is not whether the terms ought to be five years, six years, eight years, or any other number of years, but should the Legislative Council be elected in a staggered way, as is the Australian Senate and as have many upper houses over the years?

The traditional, and I believe appropriate, justification for requiring only one half of the members of a legislative body to retire at each election is twofold. First, the system ensures that the upper house is not merely a mirror image of the lower house. Secondly, longer terms do provide greater continuity of knowledge and experience and they provide stability in parliamentary and governmental processes.

Staggered terms have always existed in South Australia. They exist in the Australian Senate, in New South Wales and in Tasmania. Once again, that argument about staggered terms was not really addressed by the government: it simply raised the populist flag, 'Let's reduce the terms from eight years to four.'

I think it is fair to say that most people in the community would consider that eight years sounds a long time, but the question is: should we have staggered terms? One way to avoid eight year terms is for us to revert to three year terms for the House of Assembly and six year terms for members of the Legislative Council, with staggered terms. That is the system that we have in the federal parliament, three and six year terms, and that is a reasonable proposition. I do not believe that we need throw the baby out with the bath water. If eight years is too long, then we could reduce it to six years, but I do believe that we should retain staggered terms for the reasons I have outlined.

The next change is an alteration to the mechanism for the resolution of deadlocks. Standing orders of both houses already provide a formal mechanism for resolving differences, namely, so-called conferences of managers. If differences are not resolved by that mechanism or by negotiation, then section 41 of the Constitution Act provides a possible avenue for resolution. In brief, under that mechanism the bill must pass the assembly twice, once before and once after a general election, and the bill must be twice rejected by the council. A double dissolution can then be called.

This procedure has never actually occurred in South Australia because a deadlock could remain indefinitely. The question is: why should deadlocks be resolved and, more particularly, which house should prevail? We believe in a parliament comprising two houses of equal power, and there is great justification for that. As all members of this chamber know, it is elected by proportional representation and is more representative of the political diversity in the state than is the House of Assembly, which is elected in 47 separate electorates under the system of preferential voting.

What this bill does is provide a mechanism to break deadlocks, ultimately by way of a joint sitting. A joint sitting of a House of Assembly of 47 members and a Legislative Council of 16 members would inevitably lead to the will of the House of Assembly prevailing. Why should the will of the House of Assembly prevail in all cases? Why should not the House of Assembly be forced to reach some form of compromise, if that is the will of the South Australian people? Of course, the members of this council are accountable in elections.

It is interesting to see that Victoria introduced a mechanism similar to that which is proposed in this bill, but is a rather more complex mechanism. The procedure, which has not yet ever been tested there, provides for a formal dispute resolution committee and for resolution by a referendum in certain circumstances. The New South Wales model for the resolving of deadlocks also provides for ultimate resolution by way of referendum.

The government describes the power that the Legislative Council has to reject or amend bills as being a right of veto, but it is equally fair to say that the House of Assembly has, and will continue to have, a right of veto. There are bills that are introduced and passed in this council which can be killed, and often are killed, by members of the government in the House of Assembly. I believe that the correct categorisation of the respective powers is that the houses are of equal power, except as to money bills, over which the House of Assembly does have a greater, but not absolute, power.

If the government was truly interested in a democratic mechanism for resolving deadlocks, a purer system would require a deadlock bill to be put before a referendum of the people to decide, rather than seeking to distort the relationship between the two houses. It is undoubtedly true that this proposed change will increase the power of the executive, and for that reason it should be opposed.

The fourth proposed change is not, in my view, of great significance, but it has been put forward in this package, and I believe it is offensive for that reason; but there is quite some history to the new proposal to give the President of this council a deliberative vote. Between the establishment of responsible government in South Australia as early as 1856 and up until 1973, both the Speaker and the President had only a casting vote; in other words, they could not vote on any measure unless there was an equality of votes on the floor.

The Dunstan government's reforms of the Legislative Council franchise in 1973 included a provision which gave to the President, and also to the Speaker, the power to concur in the second and third readings of 'any bill'. That is contained in sections 26(3) and 37(3) of the constitution. Members will be aware that the Labor Party has always argued that that power could only be exercised in relation to a bill to change the constitution, but the amendment specifically said 'any bill'. It is not limited to bills to change the constitution, and a number of presidents of this chamber have exercised that vote over the years.

The reason given by then premier Dunstan for the amendment made in 1973 was that it was likely that the numbers in the Legislative Council would be finely balanced and that it was 'fundamentally wrong' (his expression) to deprive the presiding officer and the presiding officer's party of the vote in a case when the President was not called upon to exercise a casting vote. Likewise, he could have said that the power in the House of Assembly was finely balanced, as it had been and as it was subsequently, where independent members are appointed to take the chair.

The proposal presently before the parliament is that the President will have a deliberative vote on all questions, not merely on the second and third readings of a bill. So, the President will be able to vote in support of or against, for example, the establishment of a select committee, or some other motion that is put; not merely, as is currently the case, in relation to second and third readings. It is interesting to see that the government is reversing the amendment made in 1973 in relation to the Legislative Council but is not seeking to reverse the same amendment that was made at that time in relation to the Speaker of the House of Assembly—and no satisfactory explanation has been given for that disparity.

It is true, as has been pointed out, that the President of the Senate has a deliberative but not a casting vote. The reason for that is that senators supposedly represent the states, and the argument was that a state should not be denied a vote simply because one of its representatives is President. That is not really a consideration in relation to this issue, where each member of the Legislative Council is elected as a member in his or her own right.

In 2003 the Victorian constitution was changed to give the President of the Legislative Council a deliberative but not a casting vote, and that followed a recommendation from a constitutional commission which argued that:

When numbers in the house are equal, or nearly equal, there will be a tussle between the parties not to have the Presiding Officer elected from their respective memberships. An appointment to one of these positions deprives the party of a vote. If the government is forced to provide the Presiding Officer it deprives itself of a vote.

In a house elected by proportional representation, where party margins will inevitably be closer, no party may hold a majority. The vote of the Presiding Officer is therefore likely to be more important and influential. This would exacerbate the government's problem if it were forced to provide a Presiding Officer who does not have a substantive vote.

So Victoria has changed the powers of its President; however, in Victoria and New South Wales the President has only a casting vote. That arrangement is based on tradition and is designed to preserve the neutrality of the chair.

In my view, this proposal to give the President a deliberative vote is driven by Labor's desire to improve its position. As we all know, there are some within its ranks who covet the office of President but there are others within the Labor Party who say that it would be better served by having a vote on the floor. Those who covet the office have won over the others; this is a self-serving political move to give Labor the best of both worlds.

It should be noted that there are transitional provisions which provide that a 22 member council will continue until the 2014 election, or earlier if that next term is truncated, and that the terms of all members will expire in 2014. It is after that time that the council will be composed of 16 members. We are opposed to all four proposals. Our opposition is more vehement to some than to others, but the proposals have been put forward as a 'take it or leave it' package and, on that basis, we will not be taking it—we will be leaving it. We do not believe that any good purpose is served in continuing this debate.

I should mention that I will make only brief comments on the Referendum (Reform of Legislative Council and Settlement of Deadlocks on Legislation) Bill. It is obviously consequential upon the passage of the bill, which I will be opposing. The Attorney-General has acknowledged that the cost of this referendum will be $1,734,000, of which the Electoral Commission requires $1.434 million, and that $300 million will be allocated to the preparation of a 'yes' case and a 'no' case by the Department of the Premier and Cabinet. There is nothing in the referendum bill that actually requires the preparation, distribution and publicising of a 'yes' case and a 'no' case. I believe there should be such a provision, although I notice that in an earlier referendum bill there was no such provision. However, that bill, if it is to be seriously considered, should have contained provisions requiring the preparation, by some independent body, of a 'yes' case and a 'no' case to educate the community.

There is no doubt from the language of the government that it has no heart for this particular so-called reform proposal. The government has not pressed it hard, and it introduced the bill late in the session. It also introduced it as a package so that we reject it, as undoubtedly the Legislative Council will reject it, and the government can then say, 'Oh, the legislative councillors refused to accept reform.' It is just a mechanism to blame others for a flawed political strategy. I urge all members to reject the bill.

The Hon. DAVID WINDERLICH (17:41): I will briefly outline my position on the bill before us today. The bill aims to reduce the number of MPs in this chamber, halve the length of a member's term, introduce more streamlined deadlock resolution procedures, and give the president a deliberative vote. Given the Labor Party's longstanding opposition to an upper house, we on the cross-benches have greeted this legislation with some scepticism.

The Attorney-General criticises members of this chamber for so-called 'making work'. I can assure the Attorney-General that there is a great deal of work to be done to clean up the government's mistakes, oversights and incompetence. However, this relationship is not all one way. I have recently discovered that the Attorney-General does spend some time cleaning up our mistakes, or at least mine. I have here a comment on my website that reads:

If an MP can't spell in the headlines in his own website, surely he isn't worthy of being re-elected. Dseases—

I left out the 'i'—

indeed! Also, in the index of the website, shouldn't it be 'whom I support' rather than 'who I support'?

The email address is michael.atkinson@parliament.sa.gov.au. So, I do thank the Attorney-General. I think this generous side of his nature is little known, and the public should be made aware of the fact that the Attorney-General, as well as fighting the gang of 49, bikies and whatever else, is spending his time in this way. It cannot be just my website; he must be going around to lots of websites correcting grammar. In fact, I was told by someone who took the course with him that the Attorney-General took a course in grammar a couple of years ago. Obviously, the Attorney-General is putting that to good use. I have punished my staff severely but, in keeping with the spirit of criminal intelligence, I have not told them why, and I am not going to. They are going to be punished simply because this is South Australia.

Quite a lot of worthy initiatives are proposed in this chamber, which the government fails to consider, through lack of time, effort or general arrogance. The government should be thankful that many of us in this chamber do give its proposals the consideration they deserve and often amend them to help the government achieve its stated objectives more effectively.

The importance of a house of review cannot be overstated. Many speculate that Joh Bjelke-Petersen's government in Queensland would not have got away with as much as it did if Queensland had an upper house. Likewise, many attribute Howard's treatment of the Senate and his abuse of the majority there to his eventual downfall following the introduction of WorkChoices. In both cases, a decent level of review would have moderated the government's agenda and kept it accountable. Perhaps this should be a warning to the South Australian government that treating this chamber with contempt could be the beginning of its self-created end.

I will briefly outline my position on the major changes proposed. I have no problem with the deadlock provisions and believe these proposals are a sensible reform that are consistent with similar federal processes. I am inclined to support these changes. I will not be supporting the government's efforts to reduce representation in this place by reducing the number of members. I will be moving to strike out the clauses that aim to make this chamber less representative. The Attorney-General made it quite clear in the other place that the government's intention is to reduce the level of work members of this chamber can deal with, and I will oppose any moves to increase an already burdensome workload.

We on the cross-benches try to keep up with both the government and the opposition, legislatively and through public debate, with only a fraction of their resources. Overall, we are able to contribute a great deal. Reducing the number of members in this place would, as the Attorney-General hopes, reduce the level of representation we can provide for South Australians.

'In the public interest' is a term the government prefers to use only when referring to political expediency and when ramming through ill-considered measures, but I believe this is a real example of where the public interest would be served by greater representation and scrutiny, and that is a result of having a sufficient number of members in the upper house.

The upper house is far more representative of the diversity of views held by South Australians than is the other place by virtue of our proportional representation. It would become even more representative of the diversity of views should the term of election be reduced from eight years to four. I will be supporting this change.

By reducing the quota, we would see a greater range of views represented in this place. I will always be supportive of moves that make representation more encompassing. I hope that my colleagues in this place will also support moves to retain the current number of members so that this representation is even more widespread.

I oppose the idea that the president of this place should exercise a deliberative vote. The status quo encourages the presiding officer to be more impartial and, in effect, requires a clear majority of members to agree for a motion or bill to be carried. I believe the proposal to give the presiding officer a deliberative vote is purely self-interest on the part of the government. It will also make procedures in this chamber inconsistent with those in the House of Assembly. I also hope for government proposals to lead the way by reforming the House of Assembly which often exemplifies the inefficiencies of which the Attorney-General has accused this place.

Debate adjourned on motion of Hon. J.S.L. Dawkins.

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