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Legislative Council - Fifty-Third Parliament, First Session (53-1)
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Bills

Electoral (House of Assembly Casual Vacancies) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 29 October 2014.)

The Hon. T.T. NGO (17:16): I rise to oppose this bill. The Speaker of the House of Assembly has given very sensitive and cogent reasons as to why he believes the current by-elections in Fisher and Davenport should be held on separate dates. I do not think there is a single member of this parliament who works as hard in their electorate as the Speaker of this parliament does.

Members interjecting:

The Hon. T.T. NGO: He works for every community. He is very active.

The Hon. J.S.L. Dawkins interjecting:

The PRESIDENT: The Hon. Mr Dawkins!

The Hon. T.T. NGO: He likes to help out everyone. It seems to be his belief that voters in Fisher and Davenport should each be given their time in the sunshine, so to speak. It is the Speaker's belief that separate election dates in Fisher and Davenport allow these voters' local needs to be campaigned for at just as high a level, if not higher, than broader state issues. These seats are normally neglected in general elections by both major political parties because they are safe seats, so they very often get neglected.

The Hon. S.G. Wade: Like Croydon.

The Hon. T.T. NGO: No, Croydon, the member—

The PRESIDENT: Do not react to the interjection, please.

The Hon. T.T. NGO: They are neglected by both major parties in the push to win marginal seats. Whilst there has been a lot of commentary on the supposed political motives of the Speaker's decision, I believe he is simply acting in what he believes are the best interests of voters in Fisher and Davenport. I believe that is an admirable thing. It is only the introduction of this bill which is politicising the matter.

There will come a time—hopefully, in the very distant future—when there will be a change of government. It is my belief that an integral part of our Westminster system lies in the powers that are granted to the Speaker in the running of the parliament. I know the Hon. Mr Dawkins always speaks about the importance of maintaining the Westminster system. Ultimately, elections become an administrative matter for the parliament, not the Electoral Commissioner. Unfortunately, this bill is an attack on those very traditions and this is one of a number of reasons as to why I will not be supporting the bill.

I would like to further add that the bill is rushed and requires greater consideration. It represents a departure from the general position across Australia today. In all states and territories, other than the ACT, under the Hare-Clark system, writs are either issued by the Governor (the Administrator in the case of the NT) or the Speaker. There has been a suggestion that the holding of two by-elections on the same day will save money. Although the Electoral Commissioner has suggested that it may make operational sense to hold the upcoming Fisher and Davenport by-elections on the same day, The Australian reports the commissioner as having stated, and I quote, and I believe she said it too, 'there is not a great cost difference.' In light of this information I will not be supporting the bill.

The PRESIDENT: The Hon. Mr Wade. I hope you are as passionate about this issue as the Hon. Mr Ngo.

The Hon. S.G. WADE (17:21): Passionate? I thought that was like being attacked by damp lettuce. The Hon. Robert Brokenshire introduced the bill in the Legislative Council on 29 October. The bill removes the right from the Speaker of the House of Assembly to issue the writs for the filling of a casual vacancy in the house as may occur from time to time, instead bestowing that function on the Electoral Commissioner. Further to this, the bill obliges the commissioner to fix the same day for the poll if more than one vacancy occurs, unless the commissioner considers there is good reason not to do so.

Similarly, if the writ has been issued for the holding of a poll to fill a casual vacancy and further vacancies occur, the subsequent writs will fix the other polls for the same day, if it is possible, within the requirements of section 48 of the Electoral Act unless the commissioner considers there is good reason not to do so. The bill also obliges the Speaker or the Governor, as the case may be, to notify the commissioner of such resignations which create a casual vacancy as soon as possible.

As the interjections have suggested, and even some of the comments by the Hon. Mr Ngo, the bill is a response to a series of recent events. Following the casual vacancy as a result of the tragic death of the member for Fisher, the Hon. Dr Bob Such, and the fact that the member for Davenport, the Hon. Iain Evans, had already announced his intention to resign as the member for Davenport, the state faces two by-elections.

Most recently when that occurred, it was in the context of the resignations of the former premier and deputy premier, premier Rann and deputy premier Foley. Just as those two by-elections were held on the same day, there was a general expectation within the media and the general community that the polls to fill these casual vacancies would be held simultaneously.

The slightly bizarre situation was that the Speaker of the House of Assembly announced by Twitter on the Monday that he had set the date for the by-election in Fisher and he had, therefore, precluded the possibility of the by-election being on the same day as the by-election for Davenport because at that stage the member for Davenport had not resigned. It was commonly known that the member for Davenport was going to resign within days. The suggestion was put out that it was convenient for the electoral administration.

Then, what became known was that the Electoral Commissioner did not support this approach. Her preferred approach was that the by-elections be held on the same day. She made the point that it was not driven by cost and the opposition is not supporting the Hon. Robert Brokenshire's bill on the basis of cost. We are supporting the Hon. Robert Brokenshire's bill on the basis of integrity. Given the absence of any objective reason for the delay in the holding of the Davenport poll, the only conclusion that this parliament can come to is that the separation of the two polls was driven by political considerations.

If we needed support for that case we need only turn to the words of the Speaker himself. On 21 October on the ABC program with Mr Abraham and Mr Bevan, he stated that his decision was inherently a political decision. Our support for this bill is not driven by cost: it is driven by integrity. The Hon. Tung Ngo suggests that this is somehow at variance with the traditions of Westminster parliaments. I just make the point that independent electoral commissions are inconsistent with the traditions of parliament, inconsistent in the sense that they did not exist when Simon de Montfort founded the parliaments in the mid-1200s.

But the fact of the matter is that parliaments are ever evolving, and one of the great contributions of Australia to modern democracies is independent electoral administration. I think it is a natural evolution of that process that we can protect the integrity of the parliament by protecting the integrity of the electoral system, by putting what is fundamentally an administrative task in the hands of the independent Electoral Commissioner.

The fact that the decision of when a contested by-election would be held is left in the hands of a member of a political party clearly has the potential to undermine the position of the Speaker. Even if the Speaker were to make the decision with no regard to political considerations, there would still be the risk that their office could be undermined or reflected upon by the decisions that it has made.

In terms of this particular decision and this particular speaker, I would just comment that I think it is particularly disappointing because there have been a lot of comments made to me by members from the other place that they believe Speaker Atkinson, generally since his appointment, has served to strengthen the office of the speaker and improve the proceedings of that house. So, it is a surprise to me that on this occasion he chose to make the decision that he did.

However, this bill is not about one decision, one by-election date: it is about what we can do now to strengthen our democracy going forward. I certainly believe that in the context of the development of the Westminster system and the development of independent electoral administration, it is in the interests of both the parliament and the electoral administration that the process of setting the date be put in the hands of an independent electoral commissioner. The Liberal Party supports the bill.

The Hon. T.A. FRANKS (17:27): I rise on behalf of the Greens to support the bill brought before us which addresses a recent occurrence where the Speaker did not even answer a phone call from the Electoral Commissioner when she attempted to give him her impartial advice. It seems the Speaker is not very much of a listener, certainly when it comes to this particular occasion and this particular set of by-elections.

In fact, the Labor representative earlier noted that the general position is that this is a Westminster tradition. What I would point out to the member is that it is actually also a Westminster tradition that the speaker is independent, yet we do not see that come into play in this parliament. Further, it is a tradition of this particular state that our election dates are set in stone, hence the March poll dates occur every four years, and that is what has been agreed democratically in this state. Indeed, election dates are not typically at the whim of the Premier or any other person who holds the power within the party of government.

The decision to split the Davenport and Fisher by-elections and those dates is politically clever. It will have a cost, because ECSA has to make sure that the electors in those electorates are made aware that there is a poll date coming. Certainly anyone who has been in the Fisher electorate would have seen at the bus stations and in the local newspapers and, of course, in our mainstream newspapers advertisements currently for the Fisher by-election. Those advertisements will have to be run again for the Devonport by-election. Advertising is not cheap, and that is certainly one area where clearly costs could have been saved for this cash-strapped government. They are very happy to cut costs on a whole range of things. This is a very obvious place where those costs should have been cut.

We saw in the last session of parliament the Port Adelaide and Ramsay by-elections take place in very similar situations, where members who had previously been of the Labor Party brand retired and left parliament. On that occasion the Port Adelaide and Ramsay by-elections were held together. On this occasion, with the passing of the member for Fisher, the member for Davenport had already made it crystal clear that he was to retire and that the election dates could be held on the same date.

It is quite clear that this is a politically canny move and a politically clever move. It separates these two by-elections: one where the result is reasonably unknown, and that is the poll in Fisher where an Independent, who was formerly a member of the Liberal Party and a minister in a Liberal government, held the seat; the other, which is seen to be a safe Liberal seat. This is a clever move to politically divide the debates on those two elections. It puts everyone else off their guard. It was something that the Labor Party had in their control and it is something I do not think they can be trusted to have within their control in the future. With those few words, the Greens support this bill.

The Hon. K.L. VINCENT (17:31): As members are well aware, I am always looking for more efficiencies in this place, so I would like to begin by offering an abridged version of the government's contribution opposing this bill, and that is: 'we can't do it because it is not the way we have always done things.' The end.

I for one tire of this perspective. I think we do not promote an active democracy by defending the status quo at all costs and we certainly do not achieve good democratic outcomes for the people of this state by doing things just because it is the way we have always done things. Yes, we do need to keep certain traditions, but only when they are effective and achieve effective, productive and positive outcomes for the people of the state. We think it is time to change the tradition in this particular instance and that is why Dignity for Disability will support the bill.

The Hon. J.A. DARLEY (17:32): I strongly support this bill for the reasons already outlined by the Hon. Stephen Wade and the Hon. Tammy Franks.

The Hon. B.V. FINNIGAN (17:32): I rise briefly to oppose this bill. I would like to address the general point as well as dealing with the specific example that brings us to this debate. It is worth reflecting that the late Hon. Dr Bob Such would be perhaps wryly amused that we were debating this, since electoral reform and matters pertaining to elections were always a great passion of his and something that he advanced on many different occasions.

While I commend the Hon. Mr Wade for working a reference to Simon de Montfort into a contribution, the Liberal Party's general point of view—and I think it is perhaps shared by others—is that this is the 'we don't like Mick Atkinson amendment bill'.

The Hon. T.A. FRANKS: Point of order: members should be referred to by their titles and not by their names.

The PRESIDENT: Be mindful of the point of order, Hon. Mr Finnigan.

The Hon. B.V. FINNIGAN: I do apologise to the house. This bill could be titled the 'we don't like the honourable Speaker bill' because there seems to be this ongoing obsession with the person who now occupies the office of Speaker. I think it is a very poor strategy or very poor thought to make decisions based on who occupies an office at a particular time.

The suggestion that, because of this particular instance, we should change centuries of the way parliament has worked is a matter that has to be considered carefully. I acknowledge that the Hon. Kelly Vincent had a good line there saying that the government position came down to 'we have always done it this way; therefore, it shouldn't change', but there is a very important principle underlying that concept. A parliament should always be extremely careful not to give away or to in any way dilute centuries of tradition and a prerogative that is very important to the parliament.

Once you start establishing that the parliament, parliamentary officials and parliamentary office holders should not make these sorts of decisions, that it should all be handed off to an independent person, I think you are going down a slippery slope and you are starting to really undermine the prerogatives and privileges of parliament that have been built up over centuries, and there is a very important reason they were built up over the centuries.

It has always been the case that the Speaker names the dates of by-elections, and there are important reasons for that. I have great respect for the Electoral Commissioner. I think she does a good job. I am not suggesting anything untoward in reference to her or the conduct of her office, unlike some Liberal members have done in the past, but at the end of the day it is not for the Electoral Commissioner to determine the timing of by-elections. To do so simply because we think that in this instance the Speaker may have acted in a political fashion would be a very retrograde and dangerous step.

If I could deal with a specific instance that has occurred here: I am not sure what great political advantage could arise to the Labor Party by not having the by-elections on the same day, in any event, because we all know that Labor's chances of winning either of these seats are, in my view, quite minimal.

Members interjecting:

The PRESIDENT: Can the honourable members allow the Hon. Mr Finnigan to hold court.

The Hon. B.V. FINNIGAN: Thank you for your protection, Mr President. Obviously the Hon. Dr Bob Such passed away, and that is not something that any of us could have control over, least of all him, so that is not something that the Speaker has anything to do with, but in relation to this specific example a lot of honourable members have alluded to the fact that the former member for Davenport, the Hon. Mr Evans, had indicated—had indicated—that he was planning to resign and retire.

In the way that our parliament works, in the House of Assembly and in this august house, there is never a vacancy until a resignation is received by the Presiding Officer or the Governor if the Presiding Officer is not in the state. That again is a very important principle to uphold. The Speaker, the parliament, should not go deciding the basis of by-elections because somebody has made a press statement saying, 'I intend to resign.' Because somebody has indicated that to the media, or even to the house, is of no actual consequence until that resignation is validly received by the relevant Presiding Officer, and that again, Mr President, is a very important principle.

I am sure that a lot of us would know of examples; I can certainly think of a couple. There was somebody who was virtually measuring the drapes in an office they thought they were going to take up, and the person who had said they were going to retire changed their mind, or moved on to something else, and that person was left high and dry because they had changed their mind over a period of a week or fortnight.

There is nothing to say the former member for Davenport might have decided, when he woke up on the Friday, that, 'Actually, I think I will just serve out the rest of this term. And even though that might be a bit embarrassing, to backtrack, that's what I'm going to do.' There is nothing to say that his resignation would take effect until his resignation was received by the Speaker. So, again, I think there is a very important principle at stake there. There is no vacancy until the resignation has been received, even if a member has indicated that they intend to resign their office.

I think there are very important principles at stake here. To simply say, 'Well, because we don't like what the current Speaker has done and because we think this is some sort of political skulduggery relating to two by-elections at this particular point of time in our state's history, we should change the law, we should overturn centuries of parliamentary privilege and prerogative for the sake of some short-term political consideration' would be a grave mistake for this chamber. I urge members to oppose the bill.

The Hon. R.L. BROKENSHIRE (17:40): I will be brief but I might spend a couple of minutes now because I have been told that we will be sitting tonight. I do not accept what the Hon. Bernie Finnigan has tried to argue on behalf of the government at all. There is a word used by ministers in this house regularly when members attempt to try to improve democracy, and that word is 'hypocritical'.

I think that those comments are absolutely hypocritical, because the Premier can come out and make an announcement that he believes there needs to be reform—but only in this house—and that he wants to change the terms and all the rest of it. Very quickly, if you want to go back into history there was a very good reason why the Westminster system has longer terms for the Legislative Council. Just have a look at that history.

I thank honourable members for their comments and, as I said, I will be brief in summing up. We have seen something exposed here whereby the democratic process has been affected because of the way the situation is at the moment, and an admission that it has been done for political benefit.

The absolute independent arbiter, on making all these decisions, is clearly the Electoral Commissioner. I thank honourable members for their contributions, and I look forward to the fast passage of this debate and the passing of this bill. Let's see what the government does when it gets to the other house next sitting week.

Bill read a second time.

Committee Stage

Bill taken through committee without amendment.

Third Reading

The Hon. R.L. BROKENSHIRE (17:43): I move:

That this bill be read a third time.

Bill read a third time and passed.

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