Hansard debates

                    CONSTITUTION (PARLIAMENTARY REFORM) BILL
                                 Second reading
Debate resumed  from  earlier  this day;  motion  of  Mr LENDERS  (Minister  for
Finance).

  Hon.  PHILIP  DAVIS  (Gippsland)  -  I  rise  to  speak  on  the  Constitution
(Parliamentary Reform) Bill,  which  is fundamental  to  the governance of  this
state for the next century. We are about to consider changes to Parliament which
will  be changes forever. In doing so  we should consider why it  is we are in a
position to reflect on this bill at all.

I assert that the primary reason  is  because the government, in its enthusiasm,
is  displaying hubris in the sense that now it has  the opportunity  to exercise
the dominance of numbers in this chamber it will ensure, notwithstanding all the
meritorious consideration of the arguments that goes into this debate during the
course of this week, that  the bill in the form the government has presented  to
the house will pass the chamber, as indicated clearly, without qualification. In
the event  that the  debate is extended the debate will be  guillotined and  the
bill passed through the Parliament.
I wonder how new members  of  the  house,  particularly  those  members  on  the
government  side,  feel  when  they  come  into this house bright eyed and bushy
tailed  as members  of Parliament  for the  first time and realise that they are
simply servants of the executive, which has determined the form, shape and scope
of the bill. It has determined exactly when the bill will pass.

As  a consequence, the views of members of  the Legislative  Council who  are so
affected will not be considered as they will have no opportunity to influence in
any way consideration of the matters before it.
I regard the  claims  being  made by the government about this legislation being
the most  important constitutional reform in 150 years as  extravagant. Not only
that, they are  hypocritical and  a great  deal of  humbug. It surprises me that
members  of this house,  like some  of the  ministers and  a member  leaving the
chamber, Ms  Hadden, would allow the government to get away with  this. I  would
have  thought that the  most  significant reform  to  parliamentary democracy in
Victoria was  in 1908  when women  were  granted  the  vote  -  that  is,  equal
franchise.

I find extraordinary the mantra  that  was  proclaimed  about  this  bill in the
debate in the  other place  and generally  in the  community, as promoted by the
government, as  are  references to the  bill  by government members  today  that
somehow in 2003 these reforms to the Parliament of Victoria are more significant
than enfranchisement of women voters 

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in 1908. I have to say that I find that pure humbug and that the claims made  by
the government in relation to this proposal before it are hypocritical.
For  example, what  we are  seeing is  the entrenchment  into law  of the  Labor
Party's preferred electoral system. It has nothing to do with whether or not the
community at large wishes to see these changes, because one of the  clear issues
is that the community has not been engaged. Certainly the rural community, which
will  be profoundly affected by these  changes,  has  not  been  involved  in  a
conversation. The consultation process was a farce.
  Hon. Andrew Brideson interjected.

  Hon. PHILIP DAVIS - A colleague says 'a sham', but I would say it was a farce.

The government, which  had well-known prejudices about  the upper house model it
wanted to advance, embarked on a process of appointing consultants  - I  make no
references of a personal nature to the three  consultants  who  worked  for  the
government to advance its political agenda; I am sure  those men  were driven by
the highest of  motives  and  behaved in a professional manner in reflecting the
views  of their employer,  the  government of Victoria,  the government of Steve
Bracks! That means, therefore, that the constitutional commission  process had a
predetermined outcome even before the conclusions were published.
It is  disappointing to note that  there is no overwhelming  community sentiment
driving and  promoting  these  proposed  reforms.  If you turn the clock back to
early  in the 20th century you  will see  that there  was a  grassroots movement
called the 'Kyabram  movement', which advocated strong reform and resulted  in a
downsizing of  the  Victorian  Parliament. The reform came about from a view the
Victorian community was strongly advocating at the time.

It  came  from a grassroots  perspective,  and it  reflected  the  engagement of
Victorian and Australian society in debates about how we are governed. It  arose
out  of  Federation  and  the  view  in  the  post-Federation era that the state
Parliament  and the  state  government  could  do  with  less members  and  less
ministers. The Kyabram movement was truly a grassroots movement,  and there have
been  other reforms  in the  history of  the  Parliament that  have been  a true
reflection of the views of the community.
But this  reform  before  us does not represent such a conclusive position. Less
than 200 submissions  were  received by the  constitutional commission on  these
very questions.  Yet in the debate on  marine parks - that  bill was before this
Parliament  last year - more than 4500 submissions were made to the  Environment
Conservation  Council alone,  and  in addition  many  submissions  were made  to
members of Parliament and ministers of the Crown.

In relation to  the box-ironbark investigation,  there were 3500  submissions to
the  Environment  Conservation Council  and  many more  to  ministers and  other
members of Parliament. In fact, there were  more submissions from the  Victorian
community  on a discussion  paper  about collecting firewood  than there were on
constitutional  reform.  The reform process  being driven by  the government has
failed to engage the community in discussion in any material way.
Because  of the  restrictive  procedures that  have  been  implemented  by  this
government  I  have  absolute  certainty  that  this bill will be passed in this
Parliament this week, but, frankly, it will  pass with very few Victorians being
aware  of  its implications for  the  governance of  this  state. The government
failed to  inform the community effectively about the changes it proposed to the
sessional orders, and this is materially the same issue.

It is relevant to remind members of the article that appeared in the  Herald Sun
of  22 February, which alluded to the debate on the sessional orders.  It states
in part:
  In a political sense,  these upper house reforms  utterly defy everything that
  Labor  said  it  stood  for  when  it  claimed   it   was   for  openness  and
  accountability.
  And true  to form, it  misled the  public by  omission when  it announced  its
  reforms because there had been insufficient detail put on the table.

I make the point  that it is not just that the detail was not made  available to
the public, that is certainly  true, but there has been a complete abdication of
responsibility  by the  government  to engage  the  community  in discussion  on
proposals  that  go to the very core of  how  we  will be governed for the  next
century.
The reality is that with the entrenchment  of  the  provisions the government is
proposing in this bill it will be virtually impossible to  materially change any
of the aspects of the  electoral process - whether or not we subscribe to a view
about proportional representation, because that is immaterial to this particular
aspect of the debate. It is certainly the responsibility of the government  when
reforming  the electoral  process  and  the  constitution  to  ensure  that  its
proposals are fully understood by the community. Clearly that has not happened.
It is also a matter of fact that the government's rhetoric has been misleading.

The government has maintained 

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that the upper house has been an entrenched bastion of conservative dominance.
Here we are in 2003, and who has control of the upper house? All the Labor Party
had to do was win the majority of votes in  the majority of seats to be elected,
and it is clearly the case that at the most recent state election the government
was able to win those votes. There has never been any process that has inhibited
that  from  occurring before; it is just that the Victorian electorate  has  not
been prepared to invest in the Labor Party in such a way previously.
Further, it is argued  that the upper house is a hostile  house  and that it has
been hostile to the government.  As a  matter of  fact 306 bills were introduced
into this place in the last Parliament, and only seven of those were defeated. I
note  that with at least  two of them it  is  unlikely that the government  will
reintroduce them because it  seems to have changed  its policy - and I  refer to
heroin injecting rooms and home detention.

It is my view that  clearly  the government's approach has been inconsistent and
hypocritical, because it has been advocating changes  to this house on the basis
of a false premise. Not only that, it has ensured a  process of dumbing down the
way  the Parliament operates  in terms of imposing  restrictive controls on  the
operations in the house that would lead to a fulsome debate on this bill.
It is also extraordinarily presumptuous  of the government to determine that the
Parliament will adopt changes now which will be  with us forever, given the fact
that the  Parliament,  over  146 years,  has  consistently made changes  to  the
electoral  system and the  constitution  to adopt progressive  advancement. As a
matter of fact, just to  remind members - and  all  members have access to  this
information - I will refer to some of the changes that have been made.
The Victorian Constitution Act was given  royal  assent on 23 November 1855, and
in 1856 the Parliament was formally opened.

In  1857 all  Victorian men  were given  the right  to vote  for the Legislative
Assembly,  and there was  a  removal  of the requirement  for  a person to be  a
property owner in order to be a member of  the  Legislative  Assembly.  Property
qualifications applied for  men standing for and  voting in Legislative  Council
elections. In 1878 payment for members of Parliament was introduced. In 1908, as
I have earlier indicated, Victorian women over 21  were given  the right to vote
and were given the same property qualification as men to vote in the Legislative
Council elections.  In 1911 preferential  voting was introduced;  in  1923 women
were  permitted to stand for Parliament on the same basis as men - that is, that
the  property  qualification  applied  to   the  Legislative  Council;  in  1935
compulsory voting  was introduced; and in 1954 adult suffrage  was introduced by
the removal of  the property qualification  to  vote in the  Legislative Council
elections and the removal of the property qualification to stand for election to
the Legislative Council. In 1973 the voting age was reduced to 18 years.

In 1975 Victoria formally  enacted its own constitution into a single  document,
the Constitution  Act of 1975, and in  1982 the principle of one vote, one value
was introduced.
May I just make the point that many of those changes could not have been enacted
if the entrenchment provisions which are proposed  in  this  bill  had  been  in
place. We know as a matter of fact from  being in Australian political life that
the  community  at  large  is  conservative  in its  attitude  to  change,  that
notwithstanding that  community leaders may  advocate it,  notwithstanding  that
parliamentarians may see some sense because they  have a detailed  understanding
of it, and notwithstanding that you  can have a position of bipartisan agreement
on  what   sometimes  can  be  modest   change,  the  electorate  by  nature  is
conservative.

I would suggest that  there are changes to the constitution which have been made
progressively  over  the history of this Parliament in a measured way, using the
good sense and goodwill of members of  both houses  to progress,  which would be
frustrated under the proposals being entrenched with this bill.
What I say is of  concern  about that is: how can  we today presume to know  the
changes which might be prospectively made at some  time in  the future which are
beyond our understanding for the time  being? How is it possible that anybody in
1855 or  1856 could  have known that 18-year-olds would get the  vote 100  years
later? How could  they possibly have  known  that? Clearly with  the  electorate
being  such a conservative  creature  - necessarily so,  because  there is great
scepticism  about  whether   members  of  Parliament  act  entirely  and  always
honourably, notwithstanding that we are affronted  by those accusations  that we
do not -  the reality is that members of the electorate really do regard members
of Parliament with some degree of caution.

I am  not suggesting that the electorate should not have an opinion about  these
issues,  but  I  have  to  say  that  in  terms  of  legislation  affecting  the
constitution of Victoria history  relates that there were, I think, 19  attempts
to change the constitution in Victoria to  allow women  to vote before there was
success. In fact Sir Thomas Bent  was the Premier at the time who finally agreed
that the change should be made. I say  about that that he came to be  converted.
But that was a 

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reflection of the community view at the time and was entirely appropriate  - and
some would say delayed by 20 years unnecessarily. My own view is simply that  it
reflected the values of  the time. For it to  be presumed now that provisions of
this constitution  should be  entrenched in such a way that they are undoable in
the future is extraordinarily presumptuous, and I believe  eventually it will be
shown to  have  been an action that was made not  in  the best interests of good
governance in Victoria.
The  argument has been put that  the reason for introducing the changes - and we
all know what they are and I will not waste members' time by going through them;
essentially they revolve  around adopting an electoral  model that will suit the
government  - is so  there will be consistency  across jurisdictions. I  suggest
that in relation  to fixing the regions and  a fixed four-year term for an upper
house it is only Western Australia which has this particular model.

  Hon. W. R. Baxter - They keep telling us it is Australia-wide!

  Hon. PHILIP DAVIS - It is not. We know  that in New South Wales it was a Labor
government which entrenched an eight-year term for its upper house. So  I cannot
see  how the  government's argument  can have any relevance at  all in  terms of
consistency across jurisdictions.
It is also clear that the government's claim to be implementing the constitution
commission  recommendations  is not a  valid  argument. There  are  a  number of
contradictions in just that one claim. I will refer in particular to some of the
recommendations by the  constitution commission, and will come back to the issue
about how  valid this process was  shortly.  I quote from page  40 of its report
entitled A House for Our Future:

  Taking these considerations into account,  on  balance  the commission favours
  the six region by seven members model.
I will just read that again in case you did not get it:
  Taking  these considerations into account, on balance the  commission  favours
  the six region by seven members model.
  Hon. Bill Forwood - Why did we not get it?

  Hon.  PHILIP  DAVIS  - The reason  we  did  not get  it  is  clearly  that the
government chose a model to suit its political ends. It set up a commission that
had a predetermined outcome  - we know that. Clearly the people who were briefed
to do the consultancy for the commission were told what  their  marching  orders
were.

They set  up  a procedure to be  seen  to be driving some  sort  of consultation
process, which in  itself was a rank failure, but at the end of the day even the
recommendation of the Constitution Commission of Victoria for the proposed model
for proportional representation has been ignored by the government.
Further,  the  constitution  commission made  additional  recommendations  which
appear on page 71 of the report under the heading 'Major recommendations'. These
include:
6. The committee system in the Council to be  strengthened and the committees to
        be appropriately resourced.
We have not seen any of that.
7.

        Regional  committees,  for   each  Legislative  Council  region,  to  be
        established, made up of all Legislative Council members of the region.
I have not seen that.
8.   Ministerial  posts in the government to be phased out from the  Legislative
        Council.
Which ministers in this house will actually put their hands up to go?
Let us  be quite clear about  this: notwithstanding the  recommendation  of this
government  commission, what actually happened when ministers  were  sworn  into
office at the start of this parliamentary term?

My recollection is  that in the last Parliament there were four ministers in the
upper house, and as I count  the ministers sitting across from me in the chamber
today I do not find them being phased out - I find that there are six ministers.
What a  lot of  hypocrisy and  humbug! That  is a  complete  abdication  of  the
government's  responsibility to do as it said it would, which was  to  introduce
the reforms recommended by the Constitution Commission of Victoria.
I  turn to  the question of whether or  not the  constitution commission  had an
appropriate process. There are various views about  this.  All  I  can  tell the
house is that from the perspective of the community there was a complete lack of
engagement. We know, as I  have said,  there were  less than 200 submissions and
that only  a handful of people attended  the 12 or so public meetings around the
country. Let  us  look  at  who  was  present  on  the  day  at  one  particular
consultation  meeting of which I have a record, which was held at  Bairnsdale on
23 October.

There were the three commission members who  were  being paid a consultancy fee;
there was my colleague the Leader of the National  Party,  the  Honourable Peter
Hall; there was my colleague in the other place, the member for Gippsland  East,
Craig Ingram; there was the mayor of the Shire of East 

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Gippsland, Cr Tom Courtney; there was the immediate past  mayor of  the Shire of
East Gippsland, Cr Peter Bommer; there was  a Monash University politics student
from the campus in Gippsland, Paul Van Breugel; there was my electorate officer,
because I could not be in attendance; there was a secondary college student.
  Hon. Andrew Brideson - Just one?

  Hon. PHILIP DAVIS -  A secondary college student. And there were two citizens:
Peter  Glover of  Flaggy Creek and Jim Brennan of Paynesville. My advice is that
this  was entirely consistent with  the representation around the  state, and if
necessary  I   can  provide  the  attendance  numbers  of  every  one  of  those
consultation meetings. Frankly,  they  were an  absolute  farce  - just  as  the
commission has been. The commission had a predetermined outcome before it handed
out its report because the  government  had  given clear instructions and it had
selected people it believed would do its bidding - and so they did.

They did the job of professional consultants, and  I  cannot  criticise them for
that. There is no basis at all for using the Constitution Commission of Victoria
as a justification for the farce of legislation we have before this house.
I refer honourable members to the  fact that  there was a very expensive process
of  consultation.  Around  $400 000 was expended on the 15 public meetings which
were attended by a handful of people, as I have pointed out. To further make the
point about the numbers  at  meetings, I am advised that the Warrnambool meeting
was attended by a group of school children and one other person, and there  were
only 11 people at the gathering in Mildura.

We have  seen  evidence that  the  constitution  commission had  a  preconceived
agenda, because that was the nature of the  consultancy in  which the members of
the commission were engaged; and further  we have seen that it had no grassroots
support - not like the Kyabram reform movement, which did drive reform and which
was established effectively on 4 November 1901.
All I  can say  about the comparison between the Kyabram reform movement and the
2002 Constitution  Commission of Victoria is  that one was an effective people's
movement and the other was a politicians'  movement  - the politicians being the
members of the  present government,  who will use their numbers in this place to
ram through this legislation against the interests of all Victorians.
I will just  pick  up for a minute  what  the community might think  about this.
Given the difficulty  there has been  because of the government's  determination
not to engage the community, it might be instructive to hear what voters think.

From time to time members come into this place and use  various polls to support
their arguments, and I am not one for doing that as a matter of course, but when
doing research over the last few  days I found that on 13 June  2002  the Herald
Sun asked this question:
  Should the upper house be reformed?
Let  me say from the beginning that  I do not think anybody  on this side of the
house would argue that changes should not be made to the Parliament. In the last
Parliament it was  the opposition that  initiated some significant changes.  But
this is what the community is reported to have said: of 1004 calls to the Herald
Sun Voteline, 367 people voted  yes - 367 out of  1004 calls - and 637 voted no.
Just so honourable members know, 63.5 per  cent voted no and 36.5 per cent voted
yes.

That is only a representative sample, and how statistically valid it  is - there
will be a vote about that - I do  not  really care, but it is one measure of how
the  community  was feeling at that particular time, and it coincided  with  the
constitution commission's report being about to be released.
The question is what  do the  editorial writers  say, because  often they have a
feeling for  what  is either in  the  public interest or what  is  viewed by the
public as being acceptable. Certainly it was the case that when the proposals in
relation to  this matter which we  are effectively considering today were mooted
in the Herald Sun of Wednesday, 31 May 2000, that paper said:
  Do  Victorians  really want to  import the Senate's  frustrations  into Spring
  Street?
  ...

  A  key reform would be to use the  Senate's proportional representation voting
  system, which has been responsible for giving Independents and the Democrats a
  stranglehold on the government of the day.
It further goes on to advise:
  But the  Liberals' obligation does  not extend to allowing  reforms that could
  paralyse government in this state.
In considering the matters that are before the Parliament today, three years ago
the  Herald  Sun  was  of  a  view  that  the  introduction  of  a  Senate-style
proportional representation  system would not  be in the interests of Victorians
as a whole. I do not believe the Herald Sun 

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has  changed its view, but like  most others in the community  it has decided to
treat the issue with disdain because  at  the end of the day there  has  been  a
deliberate approach by  the  government to  ensure  that  the community  is  not
engaged in this debate. Consequently we  now  have a circumstance where there is
no great public interest: there is certainly no great public outcry for it. This
issue is not a  new  one. Those of us  who  have been around  parliamentary  and
political life know that the Labor Party's view of changing the upper house is a
constant debate.
It is instructive to go  back over time and see what some  of the eminent people
of the Labor Party have said on the  issue. In the Herald Sun  of 3 October 1987
Ian Munro, the state roundsman, said:

  No longer  does the  government seek  to abolish the upper house, but it  does
  have  on the books  moves  that, if successful,  would abolish the Legislative
  Council in all but name.
The  article  goes on to talk  about  the proposal to scrap  the  power to block
supply, and further states:
  Also if the Council blocked any bill, a joint sitting  of both houses could be
  called ensuring the government's view held sway.
  The   moves  would  introduce  proportional  representation  for  upper  house
  elections  -  the price  for  the government of  getting  Australian Democrats
  support at the last general state election.
How the wheel turns!

Here we are 16 years on and we see exactly the same deal, take out the Democrats
and put in the  Greens.  The  government is quietly prepared to acknowledge that
that is exactly the reason it has control of this chamber today. Its majority in
the Legislative Assembly  was enhanced because of  such a deal.  The  government
went to  the minor parties  and offered to introduce proportional representation
for a purely politically  expedient purpose.  It can rest on its laurels and say
that it was successful. That is not in the interests of ordinary Victorians.
It is also  interesting  to note what various serving members of this Parliament
have said from time to time. I note that the then Leader of the Opposition, John
Brumby, said in a press release of 29 August 1993:
  And while I  believe that  we have  too many  politicians in  this country and
  support the abolition of the upper house in Victoria ...

John Brumby made his views clear  on  the upper house from time to  time  and in
respect to the issue generally he suggested in the Age of February 1996 that the
upper house  was full  of basically  party hacks and should be abolished. It  is
interesting because there was a response  -  and  I  am  disappointed  that  the
Minister for Energy Industries  is not  in the  house to  acknowledge it in this
context. He defended the upper  house  in  the  wake  of  John Brumby's scathing
attack. He said Mr Brumby:
  ... should not forget he was a member of the Council for a time.
Clearly members  of the Labor  Party  have some difficulty  in  being consistent
about their  views, but not about the  fact that the agenda  is  clearly to move
progressively to a position of abolishing the upper  house. The reforms that are
before us today are clearly a further step on the long road towards abolition.

I  want to pick  up  the issue of the  frustration  of government agendas. As  I
indicated earlier, the  government  has claimed that  the  upper house has  been
hostile. In fact if we look at the last Parliament we can see that of 306 bills,
58  were  committed, 24 were amended  and 3 were defeated. If  we go to previous
parliaments,  did  the upper house ever act in a consistently hostile manner  to
the government of  the  day? It is  quite  evident  that that is  not  the case.
Between 1982 and 1985 when the first Cain government was in place, of a total of
462 bills, only 3 were defeated at the second-reading stage.  Between  1985  and
1988,  of  433  bills,  13 were defeated at the second-reading stage and between
1988 and 1992, of 415 bills, 12 were defeated at the second-reading stage.
It is unarguable that the role of the Victorian upper  house has been consistent
with the traditions of Westminster and upper houses everywhere.

It has taken a role where from time to time it has rejected legislation proposed
by the government, but  on  the whole it has  acted  in a cooperative manner  to
facilitate the passage  of the government's legislative program and therefore to
allow  good governance to continue, notwithstanding the  reservations  that  the
Parliament may have had about particular proposals in the main.
Today we have arrived  at an unfortunate circumstance. The government is arguing
to  introduce proportional representation and  it argues in  part that we should
have  a  greater  representation  in  the  Parliament  of  groups  who  are  not
represented  here today  and that the best way  of achieving  that is  through a
system of proportional representation. That in effect  means a decision must  be
made about what system is adopted.

As I alluded,  the  constitution  commission had one view and the government has
rejected that model  and adopted an alternative, the effect of which is that the
threshold in terms of  a quota for a member to be elected to this place  will be
16.66 per cent. That is interesting because in the New  South Wales Parliament a
quota to 

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be elected is 4.54 per  cent, and therefore the New  South Wales upper house  is
much  more representative of non-major  parties than is any  other Parliament in
Australia. There are groups  represented  in  the upper house in New South Wales
which some would find challenging were they to be members of this place.
Nevertheless if the government wanted to be  honest about its intention it would
adopt  a  model that would be  more  open,  and  I am sure there  will  be  huge
disappointment on the part of many of the minor  parties and minor groups, which
committed themselves  to  give preferences to  the government at  this election,
because they  will find  that they  will not  be able  to reach  the  threshold.
Further, the threshold of a  quota makes  it quite  clear it  would be virtually
impossible for an Independent ever to be elected to the upper house.

For an Independent member, the requirement to achieve the quota in an electorate
of  430 000  people stretching from  Mildura to  Wodonga to  Sunbury would  be a
complete handicap of  the worst order. The electorates that are proposed in this
bill mean that there  is  virtually  no  capacity  to  provide  a  community  of
interest;  that  the  members  who  will be elected will inevitably be those who
carry  the weight of  party  endorsement; and that  the consequence therefore is
that the model which is proposed is that minor groupings  and  Independents will
be effectively excluded from this house.
So  the government again has acted  in a  hypocritical way.  It has  adopted the
highest  threshold  in parliamentary elections  in Australia. It  has  adopted a
threshold  that is  higher than  New South  Wales at 4.54 per cent,  higher than
South Australia at  8.33 per cent, higher than Western Australia, which has some
seven-member seats at 12.5  per  cent  and  other five-member seats at 16.66 per
cent.

There is  no  proportional representation in  the  upper house  of  Tasmania and
Queensland does not have an upper house.
Notwithstanding  the  fact   of  the  government's   advocacy  for  proportional
representation, it does not actually  want to  trust the minor parties. I put it
that  this  was best summed up by the then  Premier John Cain in the debate that
occurred in 1988 about upper house reform. In the Australian of 29 July  1988 an
article said in relation to a single Senate-style electorate across the whole of
Victoria:
  ... the quota required would probably be only 4.5 per cent.
  The Premier, Mr Cain, has said the smaller quota system would open the Council
  to every 'ragtag, bobtailed mob' that  wanted  to  run  for Parliament and the
  government would probably not accept the proposal.

I alluded  to that for this  reason: that the whole premise  of the argument for
proportional  representation by the  government  has been to  open  up the upper
house of Victoria to minor groups  and interests to get a representative profile
of Victorian political life. The reality of this bill is that it is  designed to
deliver  not that  outcome  but  another: an  outcome  that  will  entrench  the
situation where there will be,  to  a  greater  or  lesser  extent,  an equality
between the government - that is, the Labor Party today - and the non-government
parties.  The  minor  parties  in  the  scheme of things, the Democrats and  the
Greens, will have a great deal of trouble dealing with  the implications  of the
bill. I am  not sure about the National Party and  I will let the National Party
members  speak  for themselves, but  clearly the National  Party  will have some
challenges in respect of this matter.

I would like to suggest  that it is likely that the final  outcome  will be that
the Democrats or the Greens, or a combination thereof if  the  Democrats survive
the next  election cycle,  will have some  influence in  this house.  It is  not
possible  to imagine  that there  would be a continuing dominance of one side or
the  other.  I  accept that because that is the  challenge  the  government  has
provided to the Parliament: to  adopt this  bill, and  to create  a system which
will  reduce the  probability of there being a dominant party in this chamber. I
accept that that is the government's intention. It  still can  occur, but  it is
more likely that a minor party like the Greens will have the balance of power.
That is fine, but what about all those other interest groups that will not be in
a position to get the  sort of quota that is necessary to  get  into this house,
the highest quota of any house in Australia? There are a number of issues we can
address today. We need  to  talk  about  the  impact  directly on communities of
interest and on electorates that are affected by these changes.

At  the present time as a rural member of Parliament I am proud to represent the
district in which  I was born and where  I feel I have a long association. It is
not just about a professional job that  I do on behalf of my constituents, but a
passion for the region in which I live.
Gippsland has been my home for most of my life, and it has been my family's home
for 150  years. I,  like  many  other  country members,  bring to  this task  of
representation a passion for the region I represent. But it will be  a new world
for us, following the implementation of this bill and the next  election  cycle,
when I will  be representing not just  Mallacoota, Orbost, Swifts Creek, Bendoc,
Bonang, Tubbut and Woodside 

 Page 437


but will  also  -  if  I  am  elected in the  eastern  region,  region  1  -  be
representing places like Portsea, Sorrento and Mount Eliza.
I recently went  down  to  Sorrento just to investigate the opportunities in the
area and  noted there was quite a difference in focus and  orientation from  the
areas  I  presently represent. Nevertheless,  I think I  could  accommodate that
transition if it is required.
An Honourable Member - Will you get up at no. 3?

  Hon. PHILIP  DAVIS -  I was  actually wondering  how many  of them  voted down
there.
The point I wanted to make  was  that  this is not just a challenge  in  eastern
Victoria; it is a challenge in western Victoria as well.

We  are going to  have  members trying to  represent Nhill, Casterton, Edenhope,
Hamilton and  Portland  at the same  time  as they  are  representing  Werribee,
Geelong and Melton.
As I alluded to earlier, the great northern region, region 6, as proposed in the
schedule  to the bill,  the  region which will  subsume  North Eastern Province,
North  Western Province and a  fair  bit  of  Central  Highlands,  will  end  up
encompassing  Mildura,  Bendigo,  Wodonga  and Sunbury.  Can  anybody  seriously
propose to me that it is possible for one member of Parliament  - or indeed five
members of Parliament -  to effectively advocate with  any detailed knowledge of
the issues that affect those expanded regions? It is beyond being a farce; it is
an  insult to the intelligence  of  members of this place  to try to argue  that
point.

It is clear that the pressures members of this place will come under will be the
same as those experienced in New South Wales. In New South Wales members elected
to the upper house see no  good  reason  to have offices in and be  involved  in
their communities.  They  represent, the  community  of the  state  because they
effectively operate out of Sydney.  Their offices are in Sydney and they have no
community involvement beyond the city  limits.  It  will  be  a  great shame for
representation in country Victoria.
We presently  have  members in  this  place with offices  in  Mildura, Hamilton,
Warrnambool, Traralgon, Shepparton, Sale and until very recently Wonthaggi - but
of course there is a  strong  representative  still in Wonthaggi, the now member
for Bass, who has just changed houses.
This will be a huge loss to rural Victoria.

Notwithstanding  the  suggestions  that members  of  this place  do  not  have a
connection with their local electorates, the reality is different. I can testify
to this: I get plenty  of advice from my constituents. They seem to  know how to
find  me pretty easily, and  I  think that is true  of all country members. City
members  suffer  the  challenge  that many  electors  do  not  know  what  their
electorate is, particularly their upper house electorate,  simply because it  is
less definable as a region. Country electorates are obviously more prominent.
I do not really have  any problem with fixed four-year  terms in relation to the
Assembly, but I have to say, as we have already said in relation to this debate,
that  it  is extraordinary that the government is doing something the New  South
Wales Labor government  has  entrenched  - abolishing the two terms of the lower
house.

Issues  have arisen during the course  of  debate  on  this  bill  about  casual
vacancies. I do  not imagine there will be a lot  of  debate in this house about
it, because  it  is not a matter  on  which there is deep  disagreement,  but it
should  be  noted  that the government is proposing a system of  filling  casual
vacancies   which  involves  a   joint   sitting  of  Parliament.   I  have  had
representations  from  the Proportional  Representation Society of  Australia on
this  matter. I met  with  Geoffrey Goode,  the  national vice-president of  the
Proportional Representation  Society of Australia, and also with Lee  Naish, who
is the Victorian spokesman.
Both of those  gentlemen made the  point  that they are  particularly  concerned
about  the  casual vacancy  provisions  because  their view  is  that the direct
election requirement ought to  be entrenched, and  that therefore the  countback
system should be introduced. I am not advocating that.

I  have  listened to the arguments put to me by the Proportional  Representation
Society of Australia,  and I believe they have some merit, but on  balance it is
the view of the opposition  that  to  maintain the equilibrium of the Parliament
the government proposals on this question should be supported, because they will
ensure that, notwithstanding the unfortunate and untimely  incidence of a casual
vacancy  arising,  there  will be no change to  the  political  balance  of  the
Parliament as a whole.
That proposal has great  merit  and  outweighs  the arguments put in relation to
direct election,  because the result  of a countback  could significantly change
the political paradigm at the time,  and there is no way  of predicting with any
certainty what that may be.
There  is certainly a case to be argued about removing  the ability of the upper
house to block supply.

I do not intend to go into that debate in any detail at this point, 

 Page 438


but we should note that that provision is to some degree theoretical. It has not
been exercised since 1952.
  Hon. W. R. Baxter - Who did it then?

  Hon. PHILIP DAVIS  -  The  Labor  Party was instrumental in blocking supply in
1952,  and the  blocking of  supply led  to the  defeat  of  the  first McDonald
ministry and the election of John  Cain, Sr, as Premier. I do not  believe it is
of value to pursue that question further.
I note that this  change  will not have a  material effect, but I  am  concerned
about the provisions that relate to the passing of  appropriation bills, because
that severely restricts the capacity of the upper house to undertake scrutiny of
those bills.

A provision that basically says bills automatically pass if after one month they
have  not  been  passed by the Council in effect abrogates the responsibility of
this house in relation  to considering legislation. It curtails the capacity  of
the upper  house to  examine such bills with the appropriate detail which may be
required.
The provisions  in relation to  deadlocked  bills are fairly  onerous. In effect
they transfer a large head of power to the Premier and are inconsistent with the
recommendations  of  the  Constitution  Commission  of   Victoria.  It  was  the
constitution  commission that said essentially for a bill to be  referred  to  a
joint sitting it should be referred after there had been a general election. The
government  is proposing  to  give  the  Premier  the  capacity to  unilaterally
determine whether or not he  will convene a joint sitting  and try to resolve  a
deadlocked bill in that fashion without calling an election.

Again,  there  is  some hypocrisy  in  the  way  the  government  has  used  the
constitution commission  to  justify  its  case,  but  in  fact  has  failed  to
materially do so.
In terms of the timing of elections, the fact that we have a fixed term raises a
number of issues. While many of us will be quite  comfortable with the fact that
there  is a  degree of  certainty about  the  timing of  the next  election, the
reality is  that in  the community  there is some serious angst  - for  example,
there are people who will be, by virtue of the age of their children, engaged in
preparation for the Victorian certificate of education (VCE) examinations. There
will  be children themselves who are of voting age who will be involved in those
examinations.  There will  be  pressures on  students  generally because of  the
coincidence of a general  election with the activities  that occur inevitably at
the end of the education year.

Individual students and their families will be put under an unnecessary pressure
by fixing the date of the election at the last weekend of November.
The end of November is the commencement of just about the  busiest period of the
year  for many  in the  retail trade  and for  many other businesses, because an
enthusiastic effort is made in relation to the Christmas  and  Easter periods in
retailing. I have no doubt - -
  Hon. Andrea Coote - Not Easter Sunday any more!

  Hon.  PHILIP DAVIS - Certainly not Easter Sunday, as my colleague  the  deputy
leader points  out.  University students and  other students also have  exams at
that time of the year, and I daresay there will be concerns.

There  is the  further issue  of the  parliamentary year of  which we  have seen
evidence over the last  several months.  Today is  25 March and the election was
held on 30  November  last,  but  we still have not got parliamentary committees
established. Not only have we not got parliamentary committees  established, but
the government has somewhere in the Parliament a  bill  proposing  to change the
nature of parliamentary committees. While I do not intend to speak to that bill,
it makes it more awkward that we should deal with parliamentary  committees some
several months after an election. We have staff who are unproductive - and I  do
not  want to be rude about the staff - and who are frustrated that they have not
got a task in front of them because the committees have not been appointed.
I will make a couple of  brief points. Firstly, I refer  back to a point I  made
earlier, which I think  needs re-emphasis, about the  presumptive nature of  the
government with respect to this legislation.

It truly believes that this is somehow a  panacea, that  this government has all
the required wisdom to know what is in the  interests of good governance in this
state for  the next  century.  Our forebears  in this  place did  not make  that
presumption,  and the  evidence  is,  as  I  said,  that  regularly  there  were
significant changes to the constitution and to democratic processes.
What has been constant is the regularity of change  in  terms of representatives
in  the Parliament - that is, the numbers of parliamentarians. For  example,  we
have had these numbers: in 1856 we had 30 members of this house; in 1881, 42; in
1889, 48; in 1903, 35; in 1906, 34; in  1965, 36; in  1974, 44. It is clear that
we need to refer also to members of  the Legislative Assembly. The numbers were:
in 1856, 60; in 1859, 78; in 1877, 86; in 1889, 95; in 1904, 68; in 1907, 65; in
1955, 66; in  1967, 73; in 1976, 81;  and  in 1985, 88. I  have  just read those
figures into the record for the purpose  of supporting  my contention that it is
extraordinarily naive, capricious, presumptuous and arrogant - -

  Hon. A. P. Olexander - Cavalier.

  Hon. PHILIP DAVIS - Cavalier is a  good word as well - for the  government  to
presume that it actually knows exactly what it is that is  in the best interests
of governance in this  state  forever.  We  know  the difficulty of changing the
provisions about numbers  of members in either  house, numbers of  districts and
the  electoral  system.  As  I  alluded  to  earlier,  the  truth  is  that  our
constituents regard us with  some caution, necessarily so because they have been
let down by previous governments.
In  conclusion I  refer to  the entrenchment  provisions of the bill. We  have a
number of proposals for entrenchment.

 Page 439


The entrenchment  provisions  unfortunately deal with  a range of  matters which
relate to both  the operation of Parliament itself and to other matters that the
government proposes to entrench by  way  of the Auditor-General as an officer of
the  Parliament,  entrenching  provisions in  relation  to  a  system  of  local
government, freedom of information and so on.
There are three levels of  entrenchment proposed in the bill. The first and most
significant entrenchment is  by way of a referendum of the people of Victoria to
make any  change.  I do not pretend to be  a  constitutional lawyer and I am not
going  to represent myself as an expert in  these matters, but I can say to  the
house that I have been given advice that sets  out clearly  that the  government
has a fundamental flaw in its approach  to these questions. I will shortly refer
particularly to section 6 of the Australia Act 1986.

We all understand  that  there is a  common-law  convention that one  Parliament
cannot bind  a future Parliament - that is, anything that  can be done in law in
this  Parliament  can  be  undone  in law by a future Parliament. We  understand
generally what that  means. What  is provided for, however, is that section 6 of
the Australia Act 1986 says:
  ... a law made after the commencement of this Act by the Parliament of a State
  respecting  the constitution, powers  or procedure of  the  Parliament of  the
  State shall be of no force or effect unless it is made in such manner and form
  as may from time to time be required by a law made by that Parliament, whether
  made before or after the commencement of this Act.
My advice is clear.

Matters  that  relate  to  the  fact  of  enshrining  the  numbers of members of
Parliament, the numbers of districts in the other house, the election cycle, the
term of office of  members of Parliament - all those matters can be clearly made
law as  a  consequence  of  the  fact  that  they  relate  to  the operation  of
Parliament.  In  other  words,  Parliament  has  the  power  to  entrench  those
provisions at law in a way that would require them to go to referendum. I do not
debate it. That is our central concern with the bill - that those provisions are
to be entrenched.
But when it comes to other matters there is a degree of legal doubt. I will  not
have that debate here. It  will be a debate that  must be had at another time in
the jurisdiction of the courts,  I imagine, because that is where we will end up
as a result of the doubt about the capacity of this Parliament to bind in such a
way future parliaments with regard to entrenchment.

What I can say with absolute certainty is that the government has made a mess of
things.  The  bill  that  was  introduced  into  the  Legislative  Assembly  for
consideration  is  not  the  bill  we  are considering today. The  bill  we  are
considering today  was amended substantially in  the Assembly. It was amended so
substantially  that  if   one  were  competent  to   have  taken  note   of  the
second-reading speech of the minister in this house one would have  noticed  the
changes that had been made in that second-reading speech.
I was interested in that less  than 24 hours before the  bill passed through the
Assembly on  the guillotine motion  the government came to  brief the opposition
about amendments that the government was  introducing in relation to a number of
matters. That actually happened at 8.30 p.m. on 19 March; representatives of the
government  briefed me and the shadow Attorney-General about  35 amendments that
had been  introduced. Subsequently additional  amendments were  introduced later
the next day.

These  matters went  to  entrenching the  provision  for the Auditor-General  to
certify what is an appropriation bill.  The government  came to us, if you like,
at  5  minutes to midnight and said,  'We  made  a bit of a mistake  there,  the
Auditor-General  does  not want to do  that.  He is an  accountant,  he is not a
parliamentary counsel and he  is therefore not inclined to undertake that role'.
All of  a sudden the Auditor-General is  being excised  from the  bill with  the
effect  that to  certify an  appropriation bill in the future the Speaker of the
Legislative Assembly will need to undertake that certification.
Further, provisions were proposed  to be amended  in  relation to the  electoral
system - that is, to be consistent with the Senate  about above-the-line voting.
There is  the issue of  inadvertently exhausting preferential votes  in a manner
that was germane  particularly  to political  parties.  There were a  number  of
consequential  amendments  dealing  with  how-to-vote  cards  and below-the-line
voting. There were amendments relating to parliamentary counsel and 

 Page 440


consistency with the Australian Electoral Act in relation to parties.
But the matter that was of interest to me was that  the government came to brief
the  opposition  on  a  proposal  to  further  amend  this  bill by  introducing
amendments  in  the  other  place  to,  in  effect, water down the provisions in
relation to  local  government.  What  was  proposed  was  in  effect  that  the
government  suddenly  realised  that in  drafting  the  bill it  had  created  a
situation where there would be a need to consider that if there were a provision
in relation to local government contained in a bill before Parliament - it could
be  something,  for  example,  like  the  regulation  of  dog  catchers  or  the
appointment  of  environmental  health  officers   -   that  those  measures  in
legislation in the Parliament  would have no effect because the bill effectively
proposed that  any  changes to local government would mean that there would need
to be a referendum  held.  The  government suddenly realised there was a problem
with the entrenchment provisions for local government.

That was fine.  We took the government at  its word that it had now got the bill
right. I advise the house that at  6 minutes to 4 o'clock in the closing  stages
of  the debate  in the Legislative Assembly the Leader of the Opposition  had to
point out to the  Premier  that there was an error in the  drafting of a clause,
the consequence of which was that there was a cross-referencing error. The error
was in relation to the amendments proposed in the Assembly in relation to clause
16 where  reference was  made to the insertion of subsection (1B)  when in  fact
what was required to be inserted was subsection (1BA).
The point of raising that matter in this debate  is to put clearly on the record
that in effect the government has had in train the preparation of the bill since
it took office in 1999. It has been through various guises of promoting the bill
in Parliament with a couple of previous attempts.

It appointed  the  constitution commission,  and  since 30  November  last year,
knowing that this would be the first bill introduced  into the 55th Parliament -
an  icon  piece  of  legislation  which  the  government claims to be  the  most
important constitutional reform in  the history of  the Victorian Parliament,  a
claim that I  dismiss, but it is the government's claim  -  it still has not got
the drafting right.
The  government introduced  a bill in the other  place, yet  less than  24 hours
before the bill  was to pass on the  guillotine it had to admit  it had it wrong
and introduced 35 amendments. Not only did it introduce those amendments, it did
not even get them right. I wish the minister who has carriage of the bill was in
the chamber. I am reminded by a colleague  that the Leader of the Government has
not attended the chamber at  all since  the debate  began and  therefore will be
completely uninformed about the matter I am raising. The legislation is flawed.

The  opposition  is  opposed  to the  bill because  it is  flawed  -  flawed  in
principle;  flawed  because  it  has  not  taken the views of the community into
account, because there has been no effective process to deal  with it; and, more
particularly, flawed because of the drafting of the  bill.  That is an admission
the government has made in its own right by its introduction of 35 amendments in
the Legislative  Assembly and  an admission that has been brought to light as  a
consequence  of  the opposition's detailed scrutiny of the bill in picking up an
error only 6  minutes  before  the  closing  of  the  debate  in the Legislative
Assembly.
This is a disgrace.  The fact that the government proposes to introduce and pass
this legislation is  contemptuous of the Parliament. I note with  great interest
that the  bill  did  pass on the  guillotine  in the other  place  and  that the
government proposes that it will pass on the guillotine this week.

It will abridge debate  and effectively ensure there is no effective process for
the Parliament of Victoria to  consider  what  the  government  says is the most
important bill to come  before the  Parliament for  150 years.  That leads me to
only one conclusion: that the government is not fit to  be in charge of drafting
this  important legislation,  and  therefore I propose  a reasoned amendment.  I
move:
  That all the words after 'That' be omitted with the view of inserting in place
  thereof 'as the government's haste to seek passage of this legislation through
  the Parliament has resulted in the bill being  flawed, and as the government's
  own amendments  made in the  Legislative Assembly have not adequately remedied
  the deficiencies which have been identified in the bill, this house refuses to
  read the  bill a  second time  until its  provisions have  been referred to  a
  select committee for inquiry, consideration and report'.

I commend the amendment to the house.