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Legislative Council - Fifty-Third Parliament, Second Session (53-2)
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Constitution (Appropriation and Supply) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 21 June 2016.)

The Hon. S.G. WADE (16:09): I rise to oppose the Constitution (Appropriation and Supply) Amendment Bill. I advise members that I will not be brief. I want to take this opportunity to put my support for bicameralism and the role of the Legislative Council on the record. I would hope that members of the other place who seek to devalue this place may get the message from this speech that I do not regard this council as some fading colonial relic trying to defend itself.

For my part, I believe that the Legislative Council over the past 40 years has shown itself to be the most dynamic reformist chamber of this parliament, and I look forward to the years ahead being the best years of the council's history. To quote the Prime Minister, there is no more exciting time to be a member of the Legislative Council. This bill is rooted in the Labor Party's disdain for upper houses. It was Labor that abolished the upper house in Queensland. It was Labor who described the Senate as 'unrepresentative swill'. It was Labor who proposed a referendum to abolish this chamber less than 10 years ago.

In the context of a persistent campaign which is often accompanied by the denigration of this chamber and its members, I think it is important to go back to first principles to assert the contemporary importance of bicameralism, the practice of legislative bodies having two chambers. Let me share a few quotes putting the classical arguments for bicameralism. Charles Louis de Secondat, Montesquieu, wrote in The Spirit of Laws, 'The legislative body being composed of two parts, they check one another by the mutual privilege of rejecting.'

The American Founding Fathers were heavily influenced by Montesquieu and also used their support for two houses in legislative assemblies to assuage concerns that any new federal government would become tyrannical. James Madison wrote in The Federalist No. 62:

It is a misfortune incident to republican government, though in a less degree than to other governments, that those who administer it may forget their obligations to their constituents, and prove unfaithful to their important trust. In this point of view, a senate, as a second branch of the legislative assembly, distinct from, and dividing the power with, a first, must be in all cases a salutary check on the government. It doubles the security to the people, by requiring the concurrence of two distinct bodies in schemes of usurpation or perfidy, where the ambition or corruption of one would otherwise be sufficient.

An American Founding Father, John Adams, the first vice president and the second president of the United States, argued for bicameralism in a pamphlet written during the American War of Independence, entitled Thoughts on Government. In it, he said:

A representation of the people in one assembly being obtained, a question arises, whether all the powers of government, legislative, executive, and judicial, shall be left in this body? I think a people cannot be long free, nor ever happy, whose government is in one assembly. My reasons for this opinion are as follow:—

1. A single assembly is liable to all the vices, follies and frailties of an individual; subject to fits of humor, starts of passion, flights of enthusiasm, partialities, or prejudice, and consequently productive of hasty results and absurd judgments. And all these errors ought to be corrected and defects supplied by some controlling power.

2. A single assembly is apt to be avaricious, and in time will not scruple to exempt itself from burdens, which it will lay, without compunction, on its constituents.

3. A single assembly is apt to grow ambitious, and after a time will not hesitate to vote itself perpetual. This was one fault of the Long Parliament, but more remarkably of Holland, whose Assembly first voted themselves from annual to septennial, then for life, and after a course of years, that all vacancies happening by death or otherwise, should be filled by themselves, without any application to constituents at all.

From the other side of the Atlantic, the Englishmen, one of my favourite political philosophers, John Stuart Mill, wrote in his treatise on representative government the following:

The consideration which tells most, in my judgment, in favour of two Chambers (and this I do regard as of some moment) is the evil effect [brought] upon the mind of any holder of power, whether an individual or an assembly, by the consciousness of having only themselves to consult. It is important that no set of persons should, in great affairs, be able, even temporarily, to make their sic volo prevail without asking any one else for...consent. A majority in a single assembly, when it has assumed a permanent character—when composed of the same persons habitually acting together, and always assured of victory in their own House—easily becomes despotic and overweening, if released from the necessity of considering whether its acts will be concurred in by another constituted authority. The same reason which induced the Romans to have two consuls makes it desirable there should be two Chambers: that neither of them may be exposed to the corrupting influence of undivided power, even for the space of a single year.

Walter Bagehot, in his classic, The English Constitution, in relation to the House of Lords, wrote:

A formidable sinister interest may always obtain the complete command of a dominant assembly by some chance and for a moment, and it is therefore of great use to have a second chamber of an opposite sort, differently composed, in which that interest in all likelihood will not rule.

The most dangerous of all sinister interests is that of the executive Government, because it is the most powerful. It is perfectly possible—it has happened, and will happen again that the Cabinet, being very powerful in the Commons, may inflict minor measures on the nation which the nation did not like, but which it did not understand enough to forbid. If, therefore, a tribunal of revision can be found in which the executive, though powerful, is less powerful, the government will be the better; the retarding chamber will impede minor instances of parliamentary tyranny, though it will not prevent or much impede revolution.

Let me summarise what I see as the classic arguments for bicameralism that are woven through those very different justifications of it.

Firstly, two chambers control the exercise of power in that each time power is exercised by one chamber the exercise of that power is tempered by the knowledge that it may be challenged by the other. Secondly, two chambers protect the community from a single chamber acting in its own interest in terms of power, privileges or tenure. Thirdly, two chambers act as an opportunity to take time to review decisions in the nature of a quality check. Fourth, two chambers provide insurance about the corruption of either chamber—not only corruption in the sense of personal interest prevailing over public interest but also corruption in the sense of distortion of effective representation. In particular, a chamber reconstituted over two terms allows us to moderate the impact that a short-term factor may have on the election of one chamber.

Also, the most threatening form of distortion, in my view, is cabinet government. The House of Assembly anoints the government, but having done so, its members form themselves into a secretive committee called cabinet. A mere half-dozen in cabinet can use cabinet solidarity to assert its will, first, on the party room, and then on the House of Assembly chamber. In this way, it is not uncommon for a mere half-dozen members of the House of Assembly to determine the view of the chamber. This chamber, the Legislative Council, on the other hand, cannot be so easily controlled.

Having looked briefly at the political principles supporting bicameralism, I now want to turn to the history of how this parliament, the Parliament of South Australia, became a bicameral legislature. There are some from the left who want to portray us as some colonial relic, which of course tried to duplicate the British parliament in some determined way. But, in fact, it was not inevitable that the Parliament of South Australia would be bicameral.

Certainly, our founding fathers would have been influenced by the stream of political thought that I have already referred to, but our bicameral parliament was not a given. In fact, in 1855, 14 years after the first self-government election, the old Parliament House was built, and it was built for a unicameral parliament. It stands as a monument to the struggle for a bicameral parliament in the 1850s.

Before responsible government, all legislative chambers in Australia were unicameral. In 1850 the Australian Colonies Government Act was passed. Section 7 gave authority for a legislative council to be constituted in Van Diemen's Land and South Australia with up to 24 members, with one-third appointed members. Section 32 specifically foreshadowed a shift to bicameralism by empowering the governor and the Legislative Council of each colony to establish, instead of a legislative council, a council and a house of representatives or other separate legislative houses consisting of persons to be appointed or elected. Any such bill had to be reserved for royal assent.

A report of the Legislative Council in 1852 supported a bicameral legislature with an elected upper house. Significantly, in 1853 then governor Henry Fox Young and conservative elements in the Legislative Council pursued vigorously a single house of parliament. After much rancour, the Legislative Council sent a parliament bill to the Colonial Office which proposed a nominated upper house; not a hereditary upper house like the House Of Lords, but it was proposed to be nominated, not elective. There was immediate and strong reaction by the colonists; there was a 5,000-person petition, and the bill lay for royal assent for an extended period. A British election ensued, and the Colonial Office disallowed the bill in 1855.

Having got rid of one English governor with a commitment to unicameralism, London sent us another one. The newly arrived governor, Richard Graves MacDonnell, was committed to unicameralism. He called an early election to try to get endorsement for his plan for a single house of parliament with 52 members, including four nominees and 12 elected from a special, highly qualified constituency. There was a very strong Liberal response to those proposals and, at the election that MacDonnell had called on, there was very clear and strong support from the colonists for two chambers, no nominees, responsible government, a liberal franchise, and election by ballot.

I make the point that the colonists in South Australia had to fight two representatives of the Crown in the 1850s to assert bicameralism and, far from merely replicating the London model, the elements I have just espoused were significantly contrary to the London model. There were no nominees in the Legislative Council, the upper house, proposed coming out of that election, in contrast to an hereditary House of Lords, there was no liberal franchise in the United Kingdom, we had some years to go before the Reform Act and, of course, election by ballot was many years away.

After the election, the bill to establish a parliament was passed on 2 January 1856, and elections held on 9 March 1857. The province had insisted on bicameralism with both houses fully elected from day one. A bicameral parliament appealed to the colonists in terms of being both a liberal check on power and a conservative protection of property interests.

There are not insignificant interests today which argue that, in spite of political theory, it is not now in South Australia's interests to have an upper house. Let me reflect on a couple of assertions that have been made in more recent times. First, it is argued that the Legislative Council impedes sound government. I think one of the reasons why groups such as Business SA want a unicameral legislature is that they find it simpler and easier to deal with the government and do not appreciate the tempering influence that the Legislative Council can provide; it is an inconvenient administrative expense.

Some argue against a second chamber of parliament on the ground of avoiding duplication. They seem to reflect the views of the French political philosopher Emmanuel Joseph Sieyes, who said: 'If a second chamber dissents from the first, it is mischievous; if it agrees it is superfluous'. In his paper 'A Defence of the South Australian Legislative Council', presented to the 2007 APSA conference, Jordan Bastoni of Adelaide University said that the Rann government's pursuit of the abolition of the Legislative Council was founded on its conceptualisation of the relationship between the government, the parliament and the people.

He observed that the comments of Rann and his ministers show them all to be adhering to a view of the democratic process which he described as the extreme prescriptive view of mandate theory. He quoted Stanley Bach on the operation of the theory as follows:

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

The Liberal Party does not support the extreme prescriptive view of mandate theory. We accept, of course, that governments have a mandate to govern, and they have a right to pursue their mandate within the dynamics of a parliament where other mandates exist. We have one parliament, two houses, two ballots and, to be frank, numerous mandates. Each house expresses different aspects of the democratic will of the South Australian community. Each house carries its own mandate, both of which should be respected.

The executive chosen by the House of Assembly has a mandate to govern, and the Legislative Council has a particular mandate to represent broader community interests. The House of Assembly ballot, with a single ballot and single member electorates, provides South Australians with a fairly simple binary mandate well suited to a house of government. Using single member electorates means that local geographic interests are given higher priority in the formation of government.

To be frank, the House of Assembly has not been very effective in expressing the will of the people in the formation of government. For three of the last four elections, the assembly has managed to deliver government to a party with less than 50 per cent of the vote. Labor currently has control of the lower house with a mere 35.8 per cent of the primary vote. The Legislative Council, on the other hand, has a statewide mandate and its members are elected on a proportional representation basis.

The statewide ballot allows for a range of other filters to be brought to the parliament and, arguably, a range of mandates. I would argue that the Legislative Council is inherently more democratic than the House of Assembly. First, there are fewer wasted votes in the Legislative Council elections compared to the House of Assembly elections. Single member elections produce a large number of votes that are wasted, that is, votes that do not serve an elected member of the parliament even though they are formal and even after preferences are fully distributed.

An analysis of the Electoral Reform Society found that the 2014 state election was one of the worst elections since 1975 in terms of the number of wasted votes and in terms of the distortion of the representation of political parties. The analysis found that the votes of 45.2% of South Australian electors did not contribute to electing a member in the House of Assembly. A large 460,000 electors found that, even though their votes were formal and even though their preferences were distributed, their votes were wasted.

On the other hand, as the Legislative Council is elected by proportional representation, very few votes are wasted. In fact, the maximum number that could be wasted at a Legislative Council election is the highest possible number of votes a candidate could receive without being elected, which I understand is 8.32 per cent. At the 2014 election, that was 84,000 electors. If you like, the House of Assembly waste was five times the number of votes that could be wasted in the Legislative Council.

Also, as I continue reflecting on why the Legislative Council is more democratic than the House of Assembly, I note that the Legislative Council is elected using an electorate of the state as a whole, which avoids any prospect of distortion by boundaries. Proportional representation also allows mandates that are non-geographic to express themselves. The interests and views of the broader community are not binary and they are not fundamentally determined by geography.

For example, a person may have a strong conviction that Christian moral principles should be reflected in the laws of this state. They may want to express that view by voting for Family First. Support for this approach is too dispersed to get a person elected in a single member district but when pooled across the state they can contribute to a quota for representation in this chamber. I note that Family First has had a member in this chamber for the past 14 years.

It is my view that the parliament would be a poorer reflection of the interests of the broader South Australia community if it only had one house and one mandate. The engagement of Independents and minor parties also gives tangible expression to the important democratic principle that majority rule should be tempered with respect for minorities. In his essay On Liberty John Stuart Mill warns of the tyranny of the majority; that is, in a representative democracy if you can control the majority then you can control everyone. I quote:

The will of the people, moreover, practically means that the will of the most numerous or the most active part of the people; the majority, or those who succeed in making themselves accepted as the majority; the people, consequently, may desire to oppress a part of their number; and precautions are as much needed against this as against any other abuse of power. The limitation, therefore, of the power of government over individuals loses none of its importance when the holders of power are regularly accountable to the community, that is, to the strongest party therein…in political speculations 'the tyranny of the majority' is now generally included among the evils against which society requires to be on its guard.

The fact that an action is supported by the majority is not sufficient. We should also ask: does it fairly balance the interests and impacts on the minority? The Hon. Trevor Griffin, a former leader of the Legislative Council Liberal team, when referring to the possibility of watering down the powers of the Legislative Council said:

It would change the balance of power and would tip the power in favour of the government with fewer protections for the wider community for the potential abuses by a ruling majority in the House of Assembly. It would make the government even less accountable, subject to scrutiny and less accountable.

In my view, this council has a very noble vocation to be a bulwark against the tyranny of the majority. The Australian Labor Party has had a long commitment to abolishing or severely weakening the Legislative Council or other upper houses. Historically, I can understand Labor's animosity. In colonial times, upper houses were put in place as bastions of privilege and property as the universal franchise was introduced. I suspect that George Strickland Kingston, the great advocate for bicameralism in this state, may not have been able to have universal male suffrage adopted in the lower house without supporting an upper house.

As the Labor Party formed, some 40 years later upper houses were seen as an undemocratic conservative handbrake on the democratic will and a constraint on the power of a party formed to be the political wing of the industrial movement. Labor has succeeded in abolishing one upper house, that of Queensland in 1922, and the lack of an upper house there has been seen as a significant factor leading to a higher level of corruption in that state.

However, in my view, Labor is living in the past. It has not adjusted to the realities of the democratisation of the Legislative Council in the mid-1970s. Now in South Australia in particular the upper house is very democratic, with universal suffrage and a statewide electorate elected by proportional representation. I would argue that this house is a more pure expression of the democratic will of the people of South Australia than the lower house. I acknowledge that we are yet to deal with the issue of preference harvesting but I am confident that we will do so.

Let's remember that the House of Assembly has managed, as I mentioned before, to elect a government for three of the last four parliamentary terms that did not have the support of the majority of electors and, in my view, that is a scandal. If we cannot fix the House of Assembly electoral processes perhaps an alternative might be to make the Legislative Council the house of government.

Labor's disdain for the Legislative Council flies in the face of its own penchant for participatory democracy. The 2003 Constitutional Convention specifically recommended that the Legislative Council be maintained, yet in 2006, under the then premier, Mike Rann, the Labor Party made yet another attempt to abolish this council. He described the Legislative Council as dysfunctional and accused us of holding up legislation, but the facts simply do not support that claim.

When he made it, at the end of the first term of the Rann government, only two bills had been negatived or laid aside by this chamber. I refer members to the remarks of the Hon. Rob Lucas, who has already reminded the council that of the 1,743 government bills considered by the Legislative Council over the last 20 years, only 19 have been negatived or laid aside in the Legislative Council. That is approximately 1.1 per cent of bills. The Rann push failed to gain any public support, and the bills were defeated without controversy.

The government will believe that this is not a bill to abolish the Legislative Council. They will say that it is only a bill to curtail its power. For my part, I would rather go to the gallows and abolish the council than suffer the death by 1,000 cuts promised by bills such as these. Labor has failed in its attempts to abolish the Legislative Council; now they seek to neuter it step by step.

First, let me highlight how Labor tries to undermine this council by preselection. As the shadow minister for ageing, I do not want to downplay the need for retirement homes for trade union leaders, but let me just say that the Labor Party does not send its best and brightest to the Legislative Council. At one stage during the last parliament, the Labor caucus could only find one member of the Legislative Council team worthy to serve as a minister. In contrast, the Liberal team has consistently included four shadow ministers and two parliamentary secretaries in this place.

Secondly, Labor constantly disrespects and undermines this council by trying to rush through legislation in defiance of the role of this council agreed by process and convention. Repeatedly, the government has misused the conventions relating to budget bills to try to reduce the scrutiny on measures that are not in fact budget bills. I recall in particular the repeated attempts to have the awarding of costs against police in court prosecutions. Legislative Council initiated private members' bills are often left to languish on the House of Assembly Notice Paper awaiting consideration.

This council has done a good job in defending itself and will continue to do so, but lastly Labor is trying to close us down by winding back our powers. The houses of parliament of South Australia are coequal in their legislative power and roles. The key difference is that the House of Assembly determines the government. By convention, the Crown uses votes of confidence in the House of Assembly as determinative of whether the executive has the confidence of the parliament. In my view, the Legislative Council has generally respected the government's right to govern. Our standing orders give priority to government legislation and authority to ministers of the Crown in the proceedings of this place that are not available to other members.

In relation to matters which are central to the government's mandate, the Legislative Council should and does allow the government to pursue its legislative agenda, but the Legislative Council always reserves the right to amend or block legislation. I can think of no case of a major issue of the government's mandate not receiving the support of the Legislative Council. Passage may need to be negotiated, but the executive has been allowed to get on with the job of governing. Both the Roxby Downs bill and the ETSA bill relied on Labor members crossing the floor to achieve passage.

Government ministers get irritated by delays in legislation, but true masterpieces show their virtue under scrutiny, and so often delays in parliament relate to a failure to properly consult with the community and stakeholders before the legislation is brought into parliament. The recent planning legislation, in my view, is a classic example of where Legislative Council consideration was significantly delayed by a failure to properly consult. The government's failure to accept the right of the Legislative Council to amend bills means that a number of pieces of legislation have not been progressed when a modicum of effort could have negotiated a compromise.

One of the bills before us seeks to provide a double dissolution as an alternative to the deadlock processes of this parliament. My personal view is that the deadlocked conference is not an idea that has been tried and has failed; it is an idea that has not been tried in recent years. The Clerk of the House of Assembly, Mr Rick Crump, suggests the following:

The private, flexible and informal procedures of the conference provide an ideal consensual forum where true negotiation and compromise can be employed by representative groups of both houses to effect agreement where the exchange of messages has failed.

I have gone to a number of deadlocked conferences, and repeatedly in my view government representatives apparently have not come to the table with an intention to seek a consensus.

It is bizarre that the government should suggest that we go to the expense of an election to resolve a conflict when a deadlocked conference is a far cheaper way to resolve. The fundamental problem goes back to Labor's primary diagnosis, the extreme proscriptive view of mandate theory. They have an inflated view of their political superiority that they would not demean themselves to countenance any changes to their masterpieces. It is a pervasive arrogance completely at odds with the mutual respective roles inherent in bicameralism. Bicameralism is predicated on the fact that someone else might have views worth listening to, that the best outcome for the people of the state may be to agree to modify your position. To again favourably quote J.S. Mill, in his chapter on a second chamber in On Representative Democracy, he said:

One of the most indispensable requisites in the practical conduct of politics, especially in the management of free institutions, is conciliation: a readiness to compromise; a willingness to concede something to opponents, and to shape good measures so as to be as little offensive as possible to persons of opposite views; and of this salutary habit, the mutual give and take (as it has been called) between two Houses is a perpetual school; useful as such even now, and its utility would be even more felt in a more democratic constitution of the Legislature.

In my view Labor needs to learn the art of compromise.

We have also been accused of delay: the facts do not support that claim. Filibusters are rare. The Hon. Rob Lucas suggests that there has only been one unnecessary filibuster in his view in recent times, and he suggested that that was the debate in relation to the workers compensation legislation. With all due respect to the other place, I suspect analysis would suggest that the House of Assembly wastes more of its time with filibusters, where the opposition is trying to fight back against programming decisions of the government.

There are many examples, as I have already mentioned, of the Legislative Council doing the heavy lifting of giving proper scrutiny to legislation, and often that does take time. Governments are inherently more diligent in the preparation and consultation on draft legislation for the fact that they know they will need to try to get the laws through the Legislative Council. Governments and bureaucracies, in my view, will continue to try harder to iron out issues in the community consultation if they know that, if they do not, they will be forced to do so in the Legislative Council. The committee stage in the House of Assembly, if it happens at all is, shall we say, light.

So, let us come to the nub of this bill. One can accept bicameralism, one can accept value out of the Legislative Council, but still be attracted to the government's proposal to trim the powers in relation to money bills. In my view, this council has and should have full parliamentary authority, even to the point of blocking supply. I say that as a person who hopes to be a member of the executive one day, hopefully soon. Of course, there will be times when the priorities of government will clash with the views of this council, but I hope we waste no time as a government by coming to the conversation of not even accepting the legitimacy of the Legislative Council voice.

These bills show that the government does not accept that the two houses are coequal. On the classic principles of bicameralism, equality of the chambers is logically the starting point. Constitutionally the Legislative Council and the House of Assembly are equal. This was, and remains, a foundation stone of this parliament and I believe is important for its ongoing effectiveness. The only exception is, and should be, the determination of government and the responsibility of government to manage the funding of government, that is to originate and directly amend money bills.

This issue is not new, in fact, it was recognised at the very birth of this parliament. In the same 1855 session of what was then the unicameral Legislative Council, when George Strickland Kingston delivered a bicameral parliament for South Australia, he did insist that money bills only originate in the lower house. Even in the unicameral parliament drafting the constitution this proposal was so bitterly resisted that so many of Kingston’s own supporters crossed the floor that the proposal only passed by one vote.

The Constitution Act 1855-1856 placed limitations on the power of the Legislative Council to initiate financial measures, but there were no restrictions on the council’s power to amend them. As soon as the new parliament was established in 1857, conflict between the houses over their respective powers emerged. In the book Responsible government in South Australiafrom the foundations to Playford, Gordon D. Combe puts it this way:

In the first session of the first parliament a violent dispute arose between the two houses on this issue and shook the infant parliament to its foundations.

In less than the completion of the first year of that first parliament, on 21 August 1857, John Baker, interestingly a member of the Legislative Council not the House of Assembly, became the second premier of the province.

John Baker told the Legislative Council, the first time that he went into that chamber as premier, that the sole policy of his ministry would be to settle the differences which had arisen between the two houses as to their respective powers in relation to money bills. I think it is noteworthy that Baker only remained the premier for 11 days, but he did go on to play an active role in prolonged discussions between the houses and a joint conference of representatives which nutted out a compromise.

The houses evolved a modus vivendi known thereafter as the Compact of 1857. The Compact comprised of three resolutions passed by this council, which the assembly agreed to adopt for the present. If I can summarise, rather than quote, the Compact, my understanding of the Compact is that it had the following key elements: firstly, the Legislative Council claims the full right to deal with the monetary affairs of the province. However, the Legislative Council considers it desirable not to enforce this right in relation to the ordinary annual expenses of government.

If the Legislative Council objects to any clause of an appropriation bill, the council shall demand a conference with the House of Assembly to state the objections of this council and receive information. Beyond ordinary annual expenses, the council resolved that the council could suggest any alteration in a money bill. If any suggested amendment is not agreed to by the House of Assembly, the bill shall either be assented to or rejected by this council as originally passed by the House of Assembly. If I have bastardised the Compact in summary, I apologise to the Clerk.

The council effectively was resolving to constrain itself from exercising its power to the full. Blackmore did suggest that the Compact was to a certain extent a surrender of the Legislative Council position, but as Blackmore put it, the difference between an amendment and a suggested amendment was not very great in effect and the council retained most of the substance of the function which it had claimed. The Compact of 1857, though at all times dependent for existence on the will of either house, succeeded in keeping the peace for 56 years. Each chamber continued to hold its original view, and from time to time the issue flared.

An article by Professor David Clark entitled The South Australian compact of 1857: the rise, fall and influence of a constitutional compromise, explains the history in the following terms:

During its 57 year life the compact was testament to the parliamentary virtues of moderation, creativity and compromise, and the overwhelming recognition in both houses that public business had to be forwarded for the sake of the province and its people.

The peace was broken in late 1911 during the first term of the first Labor government. The Legislative Council refused to pass the Appropriation Bill, which included the appropriation of sums to set up a brickworks and the purchase of timber and firewood for resale. The Legislative Council emphatically objected to the tacking of these new proposals on the Appropriation Bill. The House of Assembly refused to accept the view of the council and a conference between the managers from the two houses proved futile.

The laying aside of the Appropriation Bill was the climax of a crisis that had been brewing all through the session. On 23 December 1911, the Verran Labor government secretly transmitted a cablegram to the secretary of state for the colonies seeking Imperial legislation to curtail the powers of this council. The plea was fruitless. Just three days later, the day after Christmas—never let it be said that London bureaucrats will not work through Christmas—the secretary of state for the colonies declined the request, saying that the:

…interference of Imperial Parliament in internal affairs of a self-governing State would not be justified under any circumstances until every constitutional remedy has been exhausted and then only in response to a request of the overwhelming majority of the people, and if necessary to enable Government of country to be carried on.

The Verran Labor government immediately decided to go to the polls. This was the first election contested by the newly formed Liberal and Democratic Union. Reportedly, it was said to be the fiercest political battle ever fought in South Australia. At the general election of 10 February 1912, the Verran government was soundly defeated. Sixteen Labor government supporters were returned to assembly, as against 24 Liberal candidates.

The first Labor government ever formed in South Australia was effectively replaced by the first distinctively and definitely Liberal ministry, the Hon. A.H. Peake forming his second administration. Now, 104 years later, one thing has not changed, and that is that Liberal and Labor are still divided on the value of having a full-blooded Legislative Council. The incoming Peake administration introduced amendments to the constitution act, by which the principles enunciated in the Compact of 1857 and the general practice that had been built up over 60 years were given statutory force.

The terms used were defined more precisely, drawing on the language used and the imperial Parliament Act 1911, the commonwealth of Australia act and the South African act. It was further provided that appropriation would be provided for by two separate bills whenever the government desired to authorise expenditure of revenue on any purpose not previously authorised by parliament. The provision relating to money bills was enacted in 1913 has basically remained intact until this day. There are no recent examples of appropriation bills or supply bills being defeated.

Throughout its history, the Liberal Party has strongly defended bicameralism and the role of the Legislative Council. We still do that today. The government says that there is a risk that the Legislative Council could misuse that power and, for example, unacceptably delay the annual appropriation and in doing so disrupt the machinery of government. That is rubbish.

It is more than 100 years since the Legislative Council last blocked an appropriation bill. There have been in recent years vigorous debates about the companion bill, the Budget Measures Bill. Trying to remove a reserve power that the Legislative Council has not used for more than 100 years is hardly a high legislative priority. If the Liberal Party did not block supply after the State Bank crisis, why does the government think that we would try now? The Liberal Party is of the view that matters need to be dealt with in the course of scheduled parliamentary elections. I can imagine a government so bad and so corrupt that blocking supply was appropriate and I do believe it is appropriate that we maintain this reserve power.

In the last 40 years since the reforms of the mid-1970s, the South Australian community, for its part, has increasingly used the Legislative Council to give depth and tone to its democratic will. Firstly, electors are increasingly using the Legislative Council as a check on the government. Electors are increasingly voting for groups in the council which have not formed government in the assembly. At the last election, more than two-thirds of Legislative Council votes were cast for non-government parties.

The Liberal Party is the only party to have won government in the lower house and a majority of Legislative Council votes since the reforms were introduced in 1975. In 1979, the Liberal vote for the Legislative Council was 50.6 per cent and in 1993 it was 51.8 per cent. I hasten to note that, due to the staggered terms of the Legislative Council, no government has ever had a majority in the Legislative Council since the reforms in the mid-1970s. I seek leave to have incorporated into Hansard a table showing the non-government vote in the Legislative Council from 1975 to 2014. I assure the council that it is a table which is purely statistical in nature.

Leave granted.

Non-Government Vote in Legislative Council

The Primary Vote of the Legislative Council Group which formed Government in the House of Assembly

1975 Labor 47.3
1979 Liberal 50.6
1982 Labor 46.6
1985 Labor 48.0
1989 Labor 39.7
1993 Liberal 51.8
1997 Liberal 37.8
2002 Labor 32.9
2006 Labor 36.6
2010 Labor 37.3
2014 Labor 31.0


The Hon. S.G. WADE: Secondly, South Australians are increasingly choosing to vote differently in the Legislative Council from how they vote in the house. At the 2014 election, 13.6 per cent of voters voted for the two major parties in the House of Assembly but did not vote for them in the Legislative Council. The Liberal vote in the House of Assembly was 44.8 per cent, 8.8 per cent higher than the Legislative Council vote of 36 per cent. The Labor vote was 35.8 per cent, 4.8 per cent higher than the 31 per cent in the Legislative Council. If you like, that is more than 138,000 voters who wander between the houses.

There is more support for non-major parties in the Legislative Council. From 1975 to 1993, the vote for the two major parties averaged 85 per cent of the vote. Since 1997, it has averaged 69.5 per cent—a drop of 15 per cent. Last election saw the second-lowest vote share for the major parties since the reforms of the 1970s. One in three voters is voting for a non-major party. I seek leave to have incorporated into the Hansard a table showing the major party vote in the Legislative Council from 1975 to 2014. I assure the council that it is purely statistical in nature.

Leave granted.

Major Party Vote in Legislative Council

Labor Liberal Total
1975 47.3 27.8 75.1
1979 39.7 50.6 90.3
1982 46.6 40.9 87.5
1985 48.0 39.3 87.3
1989 39.7 41 .1 80.8
1993 27.4 51.8 79.2
1997 30.6 37.8 68.4
2002 32.9 40.1 73
2006 36.6 26.0 62.6
2010 37.3 39.4 76.7
2014 31.0 36.0 67


The Hon. S.G. WADE: Of course, the increased vote share for non-major parties has also been accompanied by an increase in the number of groups in the Legislative Council. That increase has been relatively rapid. From 1975 to 1997, there were only three groups in the Legislative Council: the Liberal group, the Labor group and the Australian Democrat group, or variants of the Australian Democrats. Since 2006, there have been six groups in the Legislative Council coming out of each of those last three elections. I seek leave to have incorporated into Hansard a table showing the Legislative Council seats by group. I assure the council that it is purely statistical in nature.

Leave granted.

Legislative Council seats by group

ALP Lib LM AD NXT FF Grn D4D Groups in LC
1975 10 9 2 3
1979 10 11 1 3
1982 9 11 2 3
1985 10 10 2 3
1989 10 10 2 3
1993 9 11 2 3
1997 8 10 3 1 4
2002 8 9 3 1 1 5
2006 8 8 1 2 2 1 6
2010 8 7 2 2 2 1 6
2014 8 8 1 2 2 1 6


The Hon. S.G. WADE: As a member of the Liberal Party, I will continue to try to boost the Liberal vote in this council, but we all need to respect the judgement of the people and the long-term trend to bring greater diversity to this chamber. I think the minor parties and Independents play an important role in this chamber, but they are like adding salt to meat. In moderation, they can add flavour, but too much and they will ruin the whole experience.

In this bill and related bills, the Labor Party shows that they do not respect the distinct mandate of the council and seek to emasculate it, if not abolish it. For my part, I see that the Legislative Council has evolved and will continue to evolve in the years ahead. I do believe that reform is important. We face widespread disengagement and disenchantment with parliament and politics right across the Western world.

Part of meeting this challenge is, in my view, to reform the parliament. Here again, I differ from the government. The government seems to think that reinvigorating democracy will be achieved by the executive disengaging of parliament and engaging with other consultative processes, such as the citizens' juries. I do not think that such bodies have the moral authority of a properly constituted representative to speak for the whole community.

I would cite, in that context, the recent experience of the Irish referendum on marriage equality. Being a democratic representative vote of the whole community, it was able to settle the issue in a way that no citizens' jury could have done. Similarly, the debate on cycling laws has shown that the parliament is better placed to connect with and speak for the diverse range of interests that a proposal such as that enlivens.

I consider that a key opportunity to improve our performance and engage the community is through restructuring and refocusing our parliamentary committees. Committees of this place could be better used to engage the broader South Australian community, particularly in the development of legislation. Consideration of a bill by the council could start as soon as the bill is tabled in the House of Assembly. I understand that in recent years the House of Lords has used its committees to not merely review bills before the parliament but also to engage the community on draft legislation. In my view, the select committees of the Legislative Council are proving to be increasingly useful to the South Australian community.

The Budget and Finance Committee is showing the value of an ongoing financial scrutiny committee. Whilst in their early days yet, investigative committees like the chemotherapy dosing committee, chaired by the Hon. Andrew McLachlan, are showing that they can shine a light on events and drive reform. The Transforming Health select committee, of which I am a part, will be, I hope, a vehicle for the revelation of information and a platform for clinical and consumer perspectives.

Overall, the council is well placed to take the lead in improving the accessibility and accountability of the parliament to the people. For one thing, we are more inclusive than the House of Assembly. Every South Australian elector is represented by every member of the council. This chamber has more of a whole-of-state approach than the other place. Every group is chasing every vote.

Through proportional representation we better represent the diversity of the broader community. This is not just a comment about minor parties giving voice to significant minority interests but also the way that larger parties often look to the council to enhance the demographic and gender diversity of their teams. But, perhaps most importantly, we are not controlled by the government. As a result, particularly through private members' times, we are engaging on a whole range of issues that never get an airing in the vacuum sealed House of Assembly.

In concluding, whilst I am keen for reform to help this council to better serve the people of this state, I consider that these bills are taking us in exactly the wrong direction. They are a fallback to a failed attempt to abolish the council and to support them would, in my view, be to acquiesce in the first steps towards abolition. I oppose this bill and all of its companion bills.

The Hon. I.K. HUNTER: Mr President, I draw your attention to the state of the council.

A quorum having been formed:


The Hon. K.L. VINCENT (17:06): I speak this afternoon on the Constitution (Appropriation and Supply) Amendment Bill, and indicate that this speech will also cover the three companion bills: the Constitution (Deadlocks) Amendment Bill; the Referendum (Appropriation and Supply) Bill; and the Referendum (Deadlocks) Bill. Dignity for Disability speaks in strong opposition of these bills, perhaps not at the same length as other members but certainly with the same level of passion—

The Hon. S.G. Wade interjecting:

The Hon. K.L. VINCENT: That is not a criticism at all, Mr Wade; just a statement of fact. However, I certainly do not want our brevity to be mistaken for a lack of passionate defence of this chamber; that, of course, we certainly do share with the Hon. Mr Wade. We speak in strong opposition to these bills which, at best, can be labelled only as a thinly veiled threat against the existence of this very chamber, the Legislative Council, by the Attorney-General and the Deputy Premier, and by extension, one assumes, the Labor government.

Last sitting week an invitation was emailed from the Labor whip's office to all MPs and our staff about a screening to detect the presence of atrial fibrillation to be held—

Members interjecting:

The PRESIDENT: Order! The Hon. Ms Vincent is trying to give an important contribution here, so we need to do it in silence.

The Hon. K.L. VINCENT: Thank you, sir; I was so caught up in the spirit of things I did not even notice, but thank you for your protection. Last sitting week an invitation was emailed from the office of the Labor whip to all MPs and staff about a screening to detect the presence of atrial fibrillation to be held here in Parliament House next month. Sent on behalf of the Minister for Health, the Hon. Jack Snelling, in the other place, it was unremarkable in many respects other than an intriguing, possibly Freudian slip. It was addressed to 'Members of parliament and the Legislative Council.' As I understand it, the same email with the same text was sent out again yesterday.

Now, I know that we can play semantics here but I was of the understanding that, as a member of the Legislative Council, I was, in fact, a member of parliament. One has to wonder what the writer of this email was trying to say. Yes, we are MLCs in a technical sense, as opposed to MPs, but we are still members of parliament, representing—though some might like to forget it—all South Australians. The entire state is our electorate and we should be very proud of that.

Perhaps I digress slightly. I appreciate that the Attorney-General's office has provided my office with a briefing on these bills; however, I remain completely unconvinced that they are necessary. I understand it has been more than 100 years since supply was last blocked in this parliament, so why now the sudden and urgent need for a change in law?

There are far more pressing legislative issues for this parliament to spend its time debating. How about access to the justice system for people with disabilities? How about protections within, and from, disability service providers? What about laws and resources to ensure that it is mandatory to report abuse and neglect against people with disability living in at-risk environments? How about legislating to ensure that buildings, and the built environment more generally, face inspection by qualified access inspectors post-build to check for disability access compliance?

I think what the weekend’s general election results have shown us thus far is that people are very happy to have an upper house in our parliaments that can try to make the government in the lower house more accountable. There would not be such a significant vote in this state for independent voices if people thought small parties and Independents were bad news. Instead, one in three voters, as other speakers have said, have once again voted in both houses for someone other than the old party candidates. The electorate has completely rejected the tired old rhetoric from the major parties about stability.

Due to continuing unmet need in this state, there are still people with disabilities who may only be able to shower twice per week as they do not receive adequate funding for their support needs. There are still people who occasionally sleep in their wheelchairs or in dirty clothing because their support agencies have not found a staff replacement for a worker who has called in sick or is otherwise unable to attend their shift. There are still people with disabilities—and without disabilities, I would add—experiencing violence in domestic settings, in schools or in the community because we do not yet prioritise the rights of people with disabilities and other people who may be susceptible to abuse and neglect for other reasons.

Instead of spending an estimated $2.5 million on having a referendum that the public, to the best of my knowledge, has next to zero interest in, how about we direct that funding to providing adequate education support to people with disabilities, people looking for employment opportunities, people experiencing homelessness or young people and children in need. Perhaps this government could do a better job on child protection with that money.

Also, on the issue of the role of the upper house, I believe that if the Attorney-General truly wanted electoral reform and truly wanted a democratic parliament that could properly deal with the issues that this parliament is supposed to deal with, such as employment, health, education, homelessness, he would not get rid of this chamber but reform it. I dare to suggest that they could reform it in such a way that there were no longer any government members here so that it could truly be a house of review, an independent house that could review government policy and improve on it in an unbiased way, instead of having government members in this chamber further promoting the government agenda. Why not make this a truly independent house of review?

I do not see that idea catching on any time immediately soon, but I will continue to suggest it in any event because I think that, if we truly want a democratic parliament that is able to get the job done, we should not start by getting rid of this chamber just so that governments can ram through any thought bubble they might have: we should make sure that proper procedures are in place to ensure that legislation and policy can be properly reviewed and independent new ideas can be put forward. With those words, we certainly do not support the second reading of this bill.

The Hon. I.K. HUNTER (Minister for Sustainability, Environment and Conservation, Minister for Water and the River Murray, Minister for Climate Change) (17:14): I rise to conclude the debate. I thank honourable members who have contributed to the discussion around this bill; however, I remain bitterly disappointed at the lack of support from honourable members for these are very important reform bills. However, the chamber's views are very plain and I will not seek to delay the council any further other than to remark at the shocking suggestions of the Hon. Kelly Vincent in her contribution which will send a chill down the spine of the Hon. Stephen Wade and his ambitions for the future.

Second reading negatived.

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