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Legislative Council - Fifty-Fifth Parliament, First Session (55-1)
2024-04-09 Daily Xml
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Bills

Constitution (Countersigning) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 7 March 2024.)

The Hon. J.M.A. LENSINK (16:20): I rise to make some brief remarks in relation to this particular bill, which the government has stated will enable Executive Council meetings to be held virtually by virtue of no longer requiring a countersignature by a minister of the Crown. The Liberal Party supports facilitating electronic meetings; indeed, they were a necessity during the pandemic period when other arrangements had to be made to facilitate ensuring that we were socially distancing and the like. Full meetings of Executive Council became quite trimmed down and it was usually the Premier or a representative and an additional minister who provided the countersignature.

I think it was my colleague in the other place the member for Heysen, Mr Josh Teague, who has already placed on the record that we are not fully cognisant of why the countersigning provisions needed to be removed in their entirety. Mr Teague outlined some of the history, that it used to be the chief secretary who was responsible and that was then changed to be a second minister some decades ago.

Notwithstanding that, I note that Mr Teague—just referring to his second reading speech—stated that there is a longstanding practice that there are three signatures obtained in a meeting of Executive Council: a recommendation by a minister of the Crown on behalf of Executive Council, the Governor's signature, and then also the countersignature of the minister of the Crown. With those remarks, I indicate that we will be supporting this legislation.

The Hon. R.A. SIMMS (16:22): I rise to speak on the Constitution (Countersigning) Amendment Bill 2023 and to indicate that the Greens are not in a position to support this bill. We have some significant concerns about the implication of this bill, and I do not consider that the government has yet made the case for this change. I think it is fair to say that we have seen an increase in distrust of our democratic institutions over many years now. Indeed, I think that has ramped up since 2015, and that is driven by a range of different factors, but I think part of that is often a lack of faith in or respect for our politicians or our political processes.

We are concerned that this change is being embarked upon without appropriate explanation. Obviously, we will listen to the committee stage, but we are concerned that the case has not been appropriately made. Democracy functions best when there are checks and balances in our system, and this bill aims to remove countersignatures. While this may be a minor thing, it is a check and balance in our system and we believe that it was established as part of our political process in this state for a reason.

It is the current practice that when the Governor makes an order that is for the spending of public money or involving the revocation of an appointment, the minister of the Crown is required to countersign the document. I understand the government claims that COVID-19 precipitated circumstances where that was difficult, and I understand that sometimes the Executive Council may wish to meet virtually. I understand that, and this may well be a sign of things to come, but it is difficult to understand precisely why the government needs to take this approach. This bill removes the countersignature requirement entirely, rather than simply finding another way to ensure that that check and balance is inserted into the system.

The Greens believe that all decisions made by democratic institutions must be accountable, and that includes decisions made on behalf of the Governor, or indeed the Governor acting out their constitutional obligations. I understand, of course, that the Governor—it is our convention—simply acts upon the advice or recommendation of the Executive Council. However, it is important that there is appropriate scrutiny of this process.

You may say it is unlikely that this could lead to unintended consequences, but I refer you to the rather bizarre events in Canberra where we saw former Prime Minister Scott Morrison make himself the minister for everything. He was able to swear himself into numerous portfolios without even telling another minister, and so the option or the requirement of having a countersignature certainly makes sense in that context.

Informing the Greens' position on this bill, we sought the advice of the Law Society, as we often do on these matters. They did recognise, as we do in the Greens, the need for flexibility and the need to meet virtually. However, they did question the approach being taken by the government. In particular, and I will quote from their correspondence to me:

The Society queries the approach being taken in removing entirely the requirement that the Minister is to countersign such documents, rather than making the signing process more flexible and amenable to virtual meetings.

The Law Society suggests an alternative approach, which removes the need for in-person simultaneous signing. Perhaps the government may be open to some form of amendment to address that, but in its current form the Greens do not feel that we are in a position to support it.

The Hon. R.B. MARTIN (16:27): Section 71 of the Constitution Act 1934 deals with the signature and countersignature of certain orders and warrants. This bill seeks to amend section 71 to remove the requirement that certain decisions of the Governor must be countersigned. Notably, this bill does not seek to change any powers the Governor has to approve the expenditure of public money or to make or revoke appointments or otherwise.

What it does seek to do is to provide for the use of meetings that are held by virtual means, rather than in person, as an option for Executive Council in extenuating circumstances. Pursuant to that change, it allows for the removal of the requirement that a minister of the Crown countersign instruments that are signed by the Governor. It will ensure that, where decisions of the Governor are made, these decisions will not be held to be invalid simply because a meeting has been conducted virtually rather than in person.

In current practice, where a decision is subject to countersigning, three signatures are obtained in a meeting of Executive Council: a recommendation signature by a minister of the Crown on behalf of Executive Council, the Governor's signature and the countersignature of a second minister of the Crown.

While the Legislation Interpretation Act 2021 allows for meetings that would otherwise be required to be held in person to be held via teleconference through audio or audiovisual means, its provisions do not apply when a person must be physically present to witness the signing of documents. In the case of meetings of Executive Council, the second minister of the Crown, under the current provisions, must be physically present to witness the Governor sign the instruments before countersigning. This requirement does not reflect the demands of the circumstances we have occasionally found ourselves in in recent years and perhaps may again.

The bill proposes to remove the requirement that a minister countersign instruments that are signed by the Governor. Our experiences have highlighted the importance of having appropriate measures in place to ensure that the business of government and of Executive Council may still be carried out amid extenuating circumstances that prohibit or inhibit physical meetings. It is important to have provisions in place to ensure that business can continue to be carried out in the event that it again becomes necessary, for one reason or another, that certain decisions of the Governor need to be able to be taken without the requirement of being countersigned in a physical meeting of the Executive Council.

The modest change proposed is a reasonable extension of current practices and is in line with community expectations and responsive to an occasional necessity that may arise. I commend the bill to the chamber.

The Hon. K.J. MAHER (Minister for Aboriginal Affairs, Attorney-General, Minister for Industrial Relations and Public Sector) (16:30): I thank the honourable members who have contributed and look forward to answering questions during the committee stage.

Bill read a second time.

Committee Stage

In committee.

Clause 1.

The Hon. R.A. SIMMS: I am keen to understand what options the government explored in terms of addressing the desire to meet virtually before deciding to remove the countersignature requirement entirely.

The Hon. K.J. MAHER: I am advised that on a thorough examination of the options presented the advice was that in order to hold virtual meetings there would be a requirement to remove that countersignature provision.

The Hon. R.A. SIMMS: What were the options that were explored?

The Hon. K.J. MAHER: To do nothing or to do what we are doing. The honourable member I think in his second reading contribution talked about, 'Couldn't you just keep everything the same but have virtual meetings?'—I think was essentially what he was saying. My advice is that that was considered but the advice was that in order to do virtual meetings you would have to remove the countersignature option.

The Hon. R.A. SIMMS: Can the Attorney-General confirm the existing requirements for the Governor to liaise with Executive Council if they make an order in contradiction with a recommendation from Executive Council? Is there a process that needs to be followed?

The Hon. K.J. MAHER: I think this answers the honourable member's question, but I am sure he will let me know if it does not: my advice is that nothing alters the existing provisions or conventions in terms of the process of Executive Council giving the Governor advice and what the Governor does with that advice.

Clause passed.

Remaining clause (2) and title passed.

Bill reported without amendment.

Third Reading

The Hon. K.J. MAHER (Minister for Aboriginal Affairs, Attorney-General, Minister for Industrial Relations and Public Sector) (16:35): I move:

That this bill be now read a third time.

Bill read a third time and passed.

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