Legislative Council

GOVERNMENT BILL: One-Vote One Value - Greens amendment passes

November 30th, 2017

On the 30th of November, Mark moved an amendment to the Government's Constitution (One Vote One Value) Amendment Bill 2017 to remove the so-called fairness clause.

The amendment was passed.

Below is a transcript of Mark's explanation of the amendment during debate on the Bill. At the bottom of the transcript is a record of the vote on this amendment.

The Hon. M.C. PARNELL: Just for the record, the Greens' position in relation to the so-called fairness clause in section 83(1) and 83(3) has been that we have never supported them, ever. These provisions ignore the crossbench. When I say 'crossbench', the growing crossbench. These provisions completely ignore the 30 or more per cent of South Australians who do not support either of the major parties. The Hon. Rob Lucas might say, 'Well, that's not true, because subsection (3) gives the Electoral Boundaries Commission the ability to try to guess who might be on the crossbench, to guess the proportion of the vote they might get and then to guess which side they might lean to to form a government.

It is an absurd provision, it is universally regarded as absurd. The Electoral Boundaries Commission has never, to my knowledge, actually applied it, because they can't, because it's impossible, so it actually makes sense to get rid of it. There has been a bit of commentary in the media just in recent days, and one that I thought was particularly important was the contribution of the architect of these clauses, Malcolm Mackerras. I will just read a couple of sentences from an InDaily article from a few days ago:

The fairness clause, a uniquely South Australian oddity, has been contentious for many years, with expert witnesses to successive boundaries commissions insisting it was unworkable in practice. The psephologist who initially proposed the clause, University of Sydney political scientist, Malcolm Mackerras, told InDaily last year it had been an 'abject failure' and had proved to be a 'silly clause of which I am not proud'.

Mr Mackerras went on:

I must confess I hesitate to claim it among my achievements because one doesn't like to claim such an achievement that has been such a failure.

That was first reported last year in the media. Like I say, it has been the Greens' position forever and so I think we have been as transparent as one can be in saying we do not like these provisions. I will keep on calling it the so-called fairness clause because it is not fair to those South Australians who do not support the main parties. It should be no surprise to members that I have been on a crusade for 12 years to try to end two-party thinking in relation to politics. I cannot think of how many amendments I have moved to the Parliamentary Committees Act and other bits of legislation that are designed to take out references to 'the group supported by the Leader of the Opposition' or 'the group supported by the government'. Those provisions are insulting to those of us who are on the crossbench.

The Hon. Rob Lucas in seeking to work out where this bill might go has—and the minister as well has correctly intimated that the government has agreed with the Greens and I think that is the right call. I mean, I would say that, wouldn't I? It is my amendment but they have agreed with me. The consequential changes that are required relate to existing clause 2 and clause 4. I had thought clause 4 could sit in parallel but it is neither here nor there. The main insult to the people of South Australia is section 83(1) and (3) of the constitution so we are getting rid of those. The kicker, I guess, is this idea of the referendum and what provisions require a referendum and what provisions do not require a referendum.

When the member asked me before, I said that my view had always been—and I will confess here to not having done primary legal research—that if you messed with section 83, it had to go to a constitution.

An honourable member interjecting:

The Hon. M.C. PARNELL: A referendum, sorry. I have now been told that that might not be the case.

The Hon. R.I. Lucas: Who has told you that?

The Hon. M.C. PARNELL: In my discussions with the minister.

The Hon. R.I. Lucas: With the minister?

The Hon. M.C. PARNELL: You can ask the minister directly whether that it is the case.

The CHAIR: Order! The Hon. Mr Parnell, you have the call.

The Hon. M.C. PARNELL: My position was that I assumed, without checking, that it needed to be. I think the risk we run here is not terribly high from the Liberal Party's point of view. If it turns out that that is the wrong way to approach it, and if we do change section 83 and it turns out that it did require a referendum, then section 83 has not been changed, and you have lost nothing and the referendum clause has already gone, status quo, you should be happy.

If this legal thinking that maybe a referendum is not required turns out to be wrong you have nothing to lose. If it turns out to be correct then the parliament can do what the parliament has been elected to do and we can change the law to make it more democratic and to make it fairer for all South Australians and the Greens' position is that that means taking subsection (1) and (3) out of section 83. Like the honourable member, I have only seen the review clause today, but I reckon if I had a dollar for every review clause that was presented on the last day of debate of a particular bill, it is the most common of all the late amendments, of all the things that get dumped on the table later.

I remember a very famous debate, it may have been WorkCover, no amendments passed at all, but I think the Hon. John Darley managed to get a review clause through in the end and it was the only amendment that was passed out of all of the hundreds that were moved. Other members including the Hon. Dennis Hood have moved for a review clause. It is the most common late minute amendment that I have seen in this place. If people are thinking, 'I reckon we have got this right but to be on the safe side, let's put in a review clause,' I do not find anything offensive about it.

If it looked like it was sneaky or tricky or it meant anything other than the plain language written in it, then, yes, the member might have a point, and you might need to legally analyse it. It is pretty damn straightforward as far as I am concerned: the Premier will review it, says when he has to review it, and then he has to table the review before parliament. It is pretty straightforward. I accept that the honourable member has this legitimate question of all of a sudden apparently a referendum is not required. We can explore that. You can ask the minister the basis of that advice.

Like I say, my assumption, without having done any independent legal research myself, was that you did need to, but if that turns out not to be the case, so be it. I am maintaining the position that our party has always held, that is, that we need to delete these obsolete clauses which hark back to a time when there where only two parties. Back when this referendum and the debate was had in parliament, there was not an extensive crossbench.

In the last parliament, the numbers on the floor were exactly a third, a third, a third. In the upper house, they were seven, seven, seven. That has not translated to the lower house yet, but it may. The Hon. Dennis Hood's party may have remarkable success in the next election. They may get several members elected to the House of Assembly. The Dignity Party, I know, is pushing hard. They are going to have candidates in the upper and lower houses. The Greens, of course, aspire to form government one day. It might not be this election, but it is certainly our aspiration eventually.

The idea that we are held back by a constitutional provision which basically says, 'No, it is a two-party world and you cross-party and Independent members are irrelevant to it,' I think is an antiquated provision that we need to delete. It is not my call, but the honourable member can pursue whether or not a referendum is required, and I will be interested to hear the answer as well.

The Hon. M.C. PARNELL: I move:

Amendment No 1 [Parnell–1]—

Page 2, after line 24—After clause 4 insert:

5—Amendment of section 83—Criteria

(1) Section 83(1)—delete subsection (1)

(2) Section 83(3)—delete subsection (3)


Ayes 10

Noes 9

Majority 1

Darley, J.A. Franks, T.A. Gazzola, J.M.
Hanson, J.E. Hunter, I.K. Maher, K.J.
Malinauskas, P. Ngo, T.T. Parnell, M.C. (teller)
Vincent, K.L.    
Brokenshire, R.L. Dawkins, J.S.L. Hood, D.G.E.
Lee, J.S. Lucas, R.I. (teller) McLachlan, A.L.
Ridgway, D.W. Stephens, T.J. Wade, S.G.
Gago, G.E. Lensink, J.M.A.  

New clause thus inserted.

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