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Legislative Council - Fifty-Second Parliament, First Session (52-1)
2010-09-15 Daily Xml
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STANDING ORDERS

The Hon. R.I. LUCAS (16:23): I move:

That this council notes possible changes to the standing orders of the Legislative Council and procedure governing the efficient operation of the Legislative Council.

The Hon. R.L. Brokenshire interjecting:

The Hon. R.I. LUCAS: In addressing this motion I hasten to say, for the benefit of my friend and colleague the Hon. Mr Brokenshire, that I do not intend to speak for a hour, unless sorely provoked. I have some issues I will seek leave to conclude and address on another occasion. This motion is opportune, given that the Hon. Mr Parnell just previously addressed a similar motion in relation to possible changes to standing orders.

This is an issue that I think members of longstanding in this chamber know that I have addressed on at least two or three occasions over a number of years. Given that we are at the start of a new parliamentary term, I thought it appropriate in a non-prescriptive way to raise some issues and seek responses from newer and older members about possible changes to standing orders and processes for moving forward.

I hasten to say at the outset that the views I am expressing are mine and mine alone at this stage. Some of the issues, I know, are shared by some of my colleagues; on others, we have not yet determined a position as a party, as we have not yet determined a position to the most recent motion from the Hon. Mr Parnell. In the past, past versions of our party room have opposed the notion of time limits.

The first thing I wanted to raise is the fundamental issue of how we go about changing standing orders in this chamber. We do have a standing orders committee. It comprises the President and four other members; by convention, it is comprised of two government members and two opposition (or non-government) members. I believe this chamber ought to address the issue of the composition of that standing orders committee, given that we have for a period of 30 years or more had a balance of power situation.

I hasten to say that, while I believe it is highly likely that in most circumstances given the current processes for electing members to this chamber, we are probably likely to continue to have a balance of power situation. My view is that it will not for ever and a day be in the current proportions—that is, where the number of Independent members or Independent and minor party members comprise virtually one third of the total members. Over the 30 years or so where there has been a balance of power in this chamber, it has varied from as small a number as one person holding the balance of power in the period of 1979 to 1982 through to this occasion where it is the equal highest number of non-government, non-opposition members in the chamber, which is seven. So I think we need to contemplate that.

But it is a fundamental proposition, I think, that in relation to the standing orders perhaps the chamber should look at representation on the Standing Orders Committee of someone who represents the Independent and minor party members. Given the diversity of views in that grouping in this chamber, how you would come to an arrangement with that I am not sure. It may well be that it would have to be a nomination process of one of that number to represent their collective interests. The issue would be, of course, if you can never resolve that where would the Standing Orders Committee be left? I think they are issues perhaps that we ought to at least have discussion about and contemplation about.

Certainly if there was an Independent or non-government member, which would make the committee a committee of six, it would still generally be the government of the day. If the President in essence had a casting vote, he would still control that standing orders committee, which it is at the moment. The President is generally the government member, and there are two government members, so three out of the five are government members of the Standing Orders Committee, two are from the opposition. If you went to a situation where you had an Independent or minor party, you would have the potential for a 3/3 split, which could be resolved potentially by a casting vote by the presiding member.

I think it is an issue that ought to be addressed and it is more fundamental than some of the issues that I will raise and the Hon. Mr Parnell has raised, which talks about individual standing orders. I think we need to have a look at the threshold issue and that is the process for change. I have highlighted before that, by convention and practice in this chamber, while the government of the day has controlled the numbers on the Standing Orders Committee, to my recollection standing orders changes have only ever occurred when there has been agreement of all the collective interests in the Legislative Council. This is quite unlike the House of Assembly where the government of the day rams through changes to standing orders to suit themselves.

I know that, as leader of the government in this chamber for a period of eight years and as leader of the opposition for a longer period than that and working with Labor leaders of the government at the time, in all my experience changes to standing orders have been only when both sides or all interests have agreed, and then there has been a change in the standing orders—but they have been few and far between, I might say. What sometimes occurs is that there is a sessional order where, again, by and large, those sessional orders are agreed. With things like the citizen's right of reply, there was agreement, I think, from all parties and individuals at the time that was first introduced.

So, there are the opportunities for sessional orders. However, in terms of standing orders, the convention and practice has been to move along those lines. If this chamber continues to have up to seven Independents and minor parties, I do not know whether you can continue with the practice where all 22 members in the chamber have to agree before a standing order change goes ahead; I think that is a conversation we ought to engage in. It may well be that, if the government and the official opposition view and a majority of the Independent and minor party view is to support a particular standing order, that might be a convention we could all agree to. I am not suggesting that would be written into the standing orders—it would be far too complicated—but, as I have said, the current convention is not written into the standing orders, anyway.

It is only by convention and practice that we have engaged in changes to our standing orders in a much more consultative way than the House of Assembly and other jurisdictions have in the past, and I hope that will continue. Before I address some of the other issues, I do make the general comment that, in the changes the Hon. Mr Parnell and others have talked about, I think it would be a shame if we lost much of the uniqueness of the Legislative Council and what I believe makes it an effective institution. It is sometimes attractive to look at what is occurring in the federal parliament, the House of Assembly or elsewhere and think, 'Well, why don't we do that here?'

My advice to members, new and longer standing, is to hasten slowly and not make changes that potentially might affect the efficient operation of this chamber and I think the uniqueness of this chamber, which makes it an effective house of review. In making those comments, I had my office do some very quick calculations. We have had this debate in recent times. There is another motion about supposedly family-friendly sitting hours. I acknowledge that we all have different types of families. What might suit one type of family at a particular stage of development will not suit others who have families as well.

One of the issues is, for example, is in relation to the family-friendly sitting hours debate we have had in this chamber. We roughly sit, on a back-of-the-envelope calculation, maybe 250 hours in a year. That is not precise, but it is a rough calculation as to how long we are sitting in this chamber. That is less than about 3 per cent of the total number of hours in a year. A good number of those hours perhaps we are sleeping and other things but, in the total number of hours in a year, we are sitting for about 250 hours, which is less than 3 per cent. In terms of the number of working days, it is probably less than about 15 per cent of the number of working days in a year that we are in this chamber. As we know, a significant part of our work is not in this chamber: it is in the community and in our offices and elsewhere.

I personally do not get caught up too much with this whole issue of the sitting hours of this chamber. I think we have moved remarkably from my first days here, where we did have on occasions sittings until 5, 6 and 7 in the morning and those sorts of things. These days, certainly for the past 10 or 15 years, it is very rarely (maybe once or twice in the last four or five years, towards the end of a session) that we would even get past midnight in terms of the sitting hour. I think there are many other occupations where, with occasional deadlines and things like that, people are working those sorts of hours. So that is not a major issue for me. I think too much time is being spent on concerns that others have about sitting hours in other chambers. My personal view is that I do not think we should get too caught up in relation to major changes to our sitting hours.

It is similar in relation to the debate we will have on question time, and the Hon. Mr Parnell has a view on this. I have spoken about this often, so it will not be a surprise to members to hear that I support the uniqueness of this chamber in relation to having no restrictions on speaking times. That is sorely tested on occasions. The Hon. Ms Bressington made a very long contribution on WorkCover, and I am sure others have similar views about contributions I have made—although I hasten to say none have been of an eight-hour duration. However, those occasions are infrequent; they are the sorts of things that may happen only once in a member's career on a particular issue that is near and dear to them.

As I said, I caution all of us before we move inexorably down a path of introducing time limits to replicate and reflect the views of House of Assembly members and others that this is the only way to have an efficient parliament. I say that is nonsense. We ought to be judged on the quality of the contributions that members make and the quality of the work the chambers engage in rather than whether you have said it in 10 minutes, 20 minutes, 30 minutes or longer.

With respect to question time, my personal view is that one of the unique aspects of what we can do in the Legislative Council is actually explain a question. We can take time to put on the public record the reason or rationale for why we are putting a question and a point of view to a minister. The House of Assembly cannot do that. It is one paragraph. Under speaker Lewis it was almost just one sentence; other speakers have allowed slightly longer than a sentence or two for an explanation.

I believe that one of the unique attractions of this chamber—and I acknowledge that when you are in opposition it is much more attractive than when you are in government—is that members have the capacity to explain their question. If a member is trying to get an issue up in the media you are able to put enough into the explanation to the question to explain to the media—difficult as it might be on occasions—the reason you are asking that particular question. With the greatest respect to the Hon. Mr Parnell, I do not ever recall a question from him that has gone for 45 seconds. I freely admit that very rarely would I ever have been under 45 seconds; it would only have been if I had not had an explanation for a question.

Why we would want to replicate the atrocities of the federal arrangements, that have been entered into with guns held at collective heads, as a model of efficient and effective operation of the chamber, a house of review such as the Legislative Council, I have no idea. Generally, I have the highest regard for the Hon. Mr Parnell's respect for the conventions and efficient operation of the Legislative Council, but on this one I hold a strongly different view.

I think the approach—which he touched on at the end; perhaps he has heard where some of us might be coming from—is that this chamber might look at what the House of Assembly has done in relation to saying, 'Okay; we will have a minimum number of questions from non-government members.' In the House of Assembly there are 10 non-government member questions in question time. So the incentive is there for the government of the day. If it wants ministers to read out press releases in response to Dorothy Dixer questions non-government members will still get their 10 questions and question time goes for an hour and a half.

If it is important enough for government ministers to read out press releases as responses to Dorothy Dixers then good luck to them. However, our current system gives them an incentive, in doing that, to reduce the number of non-government questions to six or seven or eight, or whatever it might happen to be. By and large I think the averages show that we do get close to between nine and 10—the Hon. Mr. Dawkins keeps these numbers and I am sure he can share them with members—but on occasions it can get down to seven or eight.

If we are going to that, we might have to come to a view—and, if this was the trade-off, I would do it reluctantly—as to whether we have a maximum number of supplementaries on a particular question. Personally, I do not like that. My view is that the uniqueness of this chamber is that, on occasions on an important question, we have had half a dozen different members asking supplementaries on a question. However, this is part of the discussion I think we ought to have.

It is much more productive, in terms of the efficient operation of the chamber, to be talking about minimum numbers of questions and, as I said, I do not currently put my hand up and support some limit on the total number of supplementaries for each question we might have. We would have to do that in some way and then be flexible in terms of the length of question time. The government, if it is relaxed about that, can have a one and a half hour question time because the non-government members would get their questions up.

That is the sort of discussion that we ought to engage in which protects the uniqueness and the effectiveness of this chamber for non-government members in keeping and holding the government to account, rather than a 45-second question which just assists the government of the day, frankly, because the question is just going to be a question and that is it—no explanation.

If the Hon. Ms Bressington has a detailed explanation from a WorkCover claimant outlining some atrocity that WorkCover has committed on that particular person then, briefly, the honourable member ought to be allowed to explain that in the question so that the minister can be held to account, or an endeavour made to hold the minister to account, on the issue.

The reality is that we know that in many cases the minister will still not answer the question. Great, we have a supplementary but if that does not work the member has at least put it on the public record for the media and others to see, and the explanation for the particular question is part of the Hansard record. In the House of Assembly, because you can only do it in a paragraph or a sentence or two, if the minister refuses to answer it and talks about something else, sometimes the media will come to you afterwards and ask, 'What was that question about? What was the explanation? Why were you raising it?' That is one of the dilemmas that they have in the House of Assembly. That is one of the issues that we ought to discuss rather than just what I think is a simplistic 45 seconds on questions.

There are many other issues but I intend to raise only one more today and I will raise a number more when the parliament next sits. The other issue I wanted to raise is one that I have engaged in discussion with over the past 12 to 18 months. It relates to the processes that we as a parliament engage in in terms of the appointment of our clerks. Because our clerks tend to last for 150 years each it is not the sort of issue that is addressed by every parliament. I have been to Victoria and a couple of the other jurisdictions to talk to their clerks and upper house members about their processes, and one hears similar stories: 'I've been in parliament for 20 years and we've never had to address this issue'—because the clerk has always been there.

The circumstances are that there is a range of different procedures which various jurisdictions adopt. My office is still collating a number of the others and that is why I will seek leave to continue my remarks at another date when I have all the information. I have only received some of those responses to which I have personally attended, and there are others where we are awaiting answers. It is fair to say that there are varying procedures that are adopted.

In raising this issue, as a background I highlight the fact that this parliament has previously expressed the view that there are positions which are so important that there needs to be confidence in the person who holds that particular position. For example, before we appoint the Auditor-General of the state or the Electoral Commissioner, there is a reference to the Statutory Officers Committee, which is a joint committee that ensures that both houses are represented in that both the government and the opposition party are represented. It seeks, in that way, to ensure that both the government and the alternative government have confidence in the person who has been appointed to what is seen to be a critically important position in terms of the efficient operation of our democracy, whether that be the Auditor-General in terms of finances or the Electoral Commissioner in terms of our electoral processes.

I put the view that there is no more important person to the operation of this Legislative Council than the position of the Clerk of the Legislative Council. It is absolutely imperative that, whoever holds the position of the Clerk of the Legislative Council, all sides of this chamber—government, opposition and minor parties—have confidence in the integrity, the independence and the capacity of the person who holds the position of the Clerk. I hasten to say that I am sure that all members in this chamber have that confidence in our current Clerk. I do not think there is any member in this chamber who would have known any clerk other than our current Clerk.

If it is important for a position like the Auditor-General and the Electoral Commissioner, then the issue that I am raising in terms of the discussion (and this is just a personal view) is: should we be discussing processes in relation to how we ensure that, in the future, persons who are appointed to the position of clerk have the confidence of all in what is a critical position for our effective operation?

With the greatest respect to you, Mr President (and you are not going to be in the position forever, I assume, but for so long as you are there), I cannot speak for your colleagues in the Labor Party, but personally I am sure that many would have the confidence in the judgment that you would make should you ever be in a position to do so.

We are not talking about current clerks and current presidents. We are talking about processes which, as I have highlighted, will relate to a whole series of future presidents and future possible clerks of the Legislative Council. I am aware of stories in the past of things which might almost have occurred with past presidents and past aspirants for the position of clerk which would not have been in the best interests of the effective operation of the Legislative Council. I do not propose to put any of those on the public record. I just raise the general issue.

I think that, whilst we have that confidence in the current Clerk and the current President, this chamber ought to have that adult discussion. That adult discussion is that, under the current arrangements, it is the decision for the future president, whoever he or she might be he, to make a judgment about whoever the future clerk might be. The president, if you follow the traditional process, will take it through to the cabinet and the Governor in Council, and the recommendation would follow that process.

I understand, and I intend to explore this a bit more before I next speak, that it may well have been that, under speaker Lewis and with the appointment of the Clerk in the House of Assembly, that process might have been short-circuited and it might have gone directly from the speaker to the governor without necessarily the cabinet or the government having a role in that process. I will further explore that between this contribution and my next.

In some other jurisdictions there are different arrangements. Some are a little exotic, and I would not support the example of Victoria. I understand the selection team for the clerk includes the Clerk of the House of Representatives, the Legislative Assembly Speaker and a public service representative. That team makes a recommendation to the Legislative Council president who then makes a recommendation to the governor in council.

In the ACT, which does not have an upper house, of course, under its Public Sector Management Act 1994, the clerk there is appointed on the advice of an appropriate standing committee of the Legislative Assembly and in consultation with the Leader of the Opposition and in consultation with the executive and in accordance with the merit principles set out. They are just a couple of the examples. In New South Wales, my early advice is that it is just simply the recommendation of the Legislative Council president to the governor of the day, which is very similar to the South Australian circumstances.

I conclude my contribution today on that general note and indicate that I am still collecting further details from the other Australian jurisdictions in relation to how that process is conducted, but I did want to raise at the outset this issue for members to think about and hopefully for us to have an adult, rational discussion about it as to what our views might be in terms of what is at some stage in (we hope) the long-distant future a selection and then an appointment of the clerk of the Legislative Council.

The other issues that I will address when I return are the issues that I have raised before, things like time limits on answers for questions on notice, and I highlight what occurs in other jurisdictions where instead of being ignored for up to seven years, ministers are required, at least within a certain number of days, to provide an answer to a question on notice.

I think that is something that hopefully we could again have an adult conversation about and contemplate some changes to standing orders if that is required. There is also the operation of the committees which again I have spoken about on previous occasions and I want to add some further comment. With that, I seek leave to conclude my remarks on another day.

Leave granted; debate adjourned.

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