SPEECH: Electoral Fairness

Today Mark spoke to the Government's Electoral Fainess Bill. Having successfully ensured that the constitution was fairer to all parties and candidates in 2017, he explained why the Greens would not support reinstating the offensive provisions back into the constitution. The bill did not pass second reading stage. 

Constitution (Electoral Fairness) Amendment Bill 2019

Having successfully ensured that the constitution is now fairer to all parties and candidates, not just the two old parties, the Greens are not about to undo the good work from two years ago by reinstating the offensive provisions back into the constitution. I have discussed this issue with a number of present and former Liberal Party members over the last couple of months. Whilst I am always happy to have a healthy and robust debate about the various models of democracy and all the different permutations that go to make up our system, I have made it clear to them that we do not support this bill and we will be voting against it at the second reading.

I made a fairly comprehensive contribution back in 2017. Some of the references I made back then were references that the Leader of the Opposition has just made now: Malcolm Mackerras calling it silly and that he wished he had not done it; Antony Green, the ABC election analyst, describing it as a gerrymander; and there were other commentaries as well. In his second reading contribution on this bill, the Minister revisited his contributions from 2017, mostly revisiting his words attacking the opposition, the then government.

In summary, our opposition to this bill is based on the fact that the so-called fairness clause is, in fact, if fair at all, only ever fair to the two major parties. It is not fair to third parties. It is not fair to Independents. That is because the bill sees the world through that two-party lens. It only cares about the two-party preferred vote, and the only relevance of third parties or Independents is their role in supporting either Liberal or Labor to form government. That is the only relevance that minor parties, third parties and Independents have. How do they fit into a two-party system?

Let us have a quick look at the 2018 state election. This is the election that the government claims shows that the so-called 'fairness clause' is working and delivering the outcome that South Australians want. Well, does it? Let us look at the results in the lower house: the Liberal party got 38 per cent of the primary vote in the lower house, the Labor Party got 33 per cent, minor parties and Independents 29 per cent. In other words, 62 per cent of voters did not vote for the Liberal Party. If we are going to be fair, 66 per cent of voters did not vote for the Labor Party.

If it really were a fair system that was based on the votes that South Australians cast, then Nick Xenophon's party would probably have got six seats, the Greens would have got three, even the Australian Conservatives would have got a seat based on their percentage of the statewide vote. The result of a system like that would be that we would have a coalition government, as they do in many other parts of the world, including wealthy and prosperous, advanced economies in Europe and Scandinavia. That is a sort of system they have had for many years.

What the Government is seeking to do is manipulate the boundaries to ensure that they can win at least 50 per cent of the seats with only 38 per cent of the statewide vote. I refer members to an analysis published in InDaily a couple of weeks ago by Adrian Tisato. He makes it clear that he is a Labor Party lawyer and he analyses this debate through that lens, but I think his analysis pretty well holds up. He says, in his article:

Essentially, the Liberals make three claims. First: they were kept out of government in South Australia from 2002 to 2018 because of a 'gerrymander' that favoured Labor. This was despite South Australia's Constitution Act having a 'fairness clause' in it that was meant to prevent such a thing occurring.

Second: the 2016 boundaries commission was the only one that correctly applied the 'fairness clause'. All previous commissions failed to do so.

Third: in the last parliament, Labor sneakily removed the 'fairness clause' from the Constitution with the support of crossbenchers. The loss of the 'fairness clause' will increase the likelihood that the commission will set electoral boundaries for the 2022 election that will again be 'unfair' to the Liberal Party.

I think he accurately sums up what the Liberal Party arguments are. Importantly, he also goes back and analyses what actually happened in 2017. He refers to this claim of how Labor, allegedly with the support of the crossbenchers, snuck through an amendment to the Constitution Act that removed the fairness clause. He points out:

Labor did not propose the amendment. The Greens did. The Greens argued that the 'so-called fairness clause', as they have always called it,—

and as I continue to call it—

has always been unfair to minor parties and independents.

He then said, 'Labor and one other crossbencher supported the Green's amendment.' He may not have that right; I am pretty sure we had two crossbenchers, I think it was the Hon. John Darley and also the Hon. Kelly Vincent. I will come back to that vote a bit later on.

The question that arises is: why has this issue been put back to us now? I think the answer is fairly clear, and that is that the job of setting the boundaries for the next election is underway. The Minister said, in his second reading:

There is an urgency to this measure because in order to ensure the fair boundaries that have resulted from the application of the fairness clause stay fair, it's necessary to reinstate those sections of the Constitution before the next Commission commences its work.

The Minister may have missed the bus a little bit, because the electoral boundaries commission, either around the same time or maybe even a little earlier than that (let us say it was around the same time), wrote to all the political parties and told them that they had, in fact, started work.

The letter the registered officer for the Australian Greens received was dated 10 October and signed by David Gully, secretary to the Electoral Districts Boundaries Commission. It basically invited us and all other political parties to make submissions to assist the boundaries commission by making representations on 'the effects of amendments enacted by the Constitution (One Vote One Value) Amendment Act 2017 which commenced on 12 December 2017.' The boundaries commission says:

Notification of the commencement of proceedings and an invitation to make written representations will be advised by way of an advertisement, published in newspapers circulating generally throughout the State commencing Saturday 19 October 2019.

That ad has been in the paper already, so that is underway. It goes on:

Any person wishing to make representation to the Commission on the effects of the amendments to section 83 of the Constitution Act may do so in writing, and deliver the representation either personally or by post, to reach me no later than 5.00pm on Friday 15 November 2019.

It then goes on to say that the first hearing has been set for 10am at the Supreme Court on 3 December. The work is underway, so I understand why the Government has brought this on, but there is a bit more to it than that. When the constitution was changed two years ago, one of the changes was the insertion of section 83A, and this is the review clause. This is important because that clause provides:

The review required under this section must commence not later than 12 months after the general election of members of the House of Assembly next occurring after the commencement of this section.

What does that mean? The section commenced operation on 12 December 2017. The general election for the House of Assembly was on 17 March 2018. The review should have been commenced by 17 March 2019. So 7½ months ago the Premier was legally required, under the constitution of South Australia, to commence a review. In blatant disregard of that provision of the constitution, the Government instead decided to simply present a bill to the Parliament to reverse these changes.

Whether a person could have gone to the Supreme Court—and other lawyers might help me with it—for a writ of mandamus perhaps, obliging the Premier to comply with the constitution and commence the review, it may well have been successful. Instead, this Government is thumbing its nose at the constitution, thumbing its nose at the Parliament and saying, 'We don't care what the constitution says, we're not going to do the review that was required, which we should have started 7½ months ago, which we should have finished by now and which we should have tabled in both houses of parliament.' The Government is just not going to do it, and I think that is arrogance in the extreme.

Let's have another quick look at what happened two years ago. The reason I want to go down memory lane a little is because history does have a habit of being rewritten unless we pay close attention to it. If you look at the Hon. Rob Lucas's contribution back two years ago, he refers to a 'dirty deal'—they are his words—between the Greens and Labor at least five times during the debate.

The truth is that there was no deal. What there was was a Greens amendment that had been filed four weeks prior to the debate, which Labor agreed to support in exchange for nothing. They agreed to support it because it was good policy—no deal, no quid pro quo, nothing. They supported it because it was good policy. But, if we are going to be really fair about this, they also supported it because their own preferred model did not have the support of the chamber; it did not have the numbers.

Members might recall that, in my view at least, Labor had been tying itself in knots with some of this one vote one value, trying to get the words right and calling up the provisions for a referendum to make changes. It was a drafting nightmare and I think the Legislative Council in its wisdom said, 'No, that's not really the way to go.' The government of the day did not have the numbers for those reforms. They had people supportive of the principles of one vote one value, but it was a complex drafting exercise and they did not have the numbers to get their bill through.

I then suggested to the Labor Party that I was more than happy to move to get rid of the fairness clause. They then took it to their party room and the rest is history. It was a Greens amendment.

The other thing I think is worth saying, because history may forget this, is that there was, I think, a general misunderstanding as to whether changing section 83 of the constitution required a referendum. This was a matter that was subject to some confusion. There were various discussions about the Solicitor-General's advice and would it be made available, but at the end of the day I think that the reason the confusion arose was that the clauses concerned—subsection (1) and subsection (3) of section 83—were inserted into the constitution by a bill that had been the subject of a referendum. Therefore, it was assumed that the only way those provisions could be removed was also by referendum.

Regarding the referendum question, if you go back to 1991, the referendum question was very simple: yes or no, 'Do you approve the Constitution (Electoral Redistribution) Amendment Bill, 1990?' That was the question: yes or no? When you go and have a look at that bill, the 1990 bill, you discover that there were a number of changes being made to the constitution, only some of which required a referendum, while other provisions did not. The provisions that fell within the so-called entrenched positions of the constitution required a referendum, but other provisions did not. In fact, even in relation to entrenched provisions, they do not always require a referendum, unless certain qualifications set out in section 88 are met.

According to the South Australian Parliamentary Research Library, which did a report on previous state referendums, I think about 10 years ago—it will be on their website still:

The relevant changes applied to Part V of the Constitution Act (SA) 1934 which cannot be amended without approval at a referendum.

With respect to the library, that is only partly right. Some of the changes required a referendum, but not all. The change that did require a referendum was increasing the frequency of redistributions from every eight years to every four years. That required a referendum, but the additional provisions did not, but because all the provisions were included in one bill, it made sense to put it to a referendum as one question. Rather than split it up and put the referendum provisions in a separate question and then go straight to parliament for other bits, it made sense to do it all at once. One criterion for having to take it to a referendum is:

…the bill does not: offend against the principle that the state is to be divided into electoral districts each returning the same number…of members to the House of Assembly…

That could be one member or it could be several. This did not infringe that provision, so that did not require a referendum. Another is if it offended:

…against the principle expressed in section 77 of this Act by which the number of electors to be comprised in each electoral district upon an electoral redistribution is to be ascertained.

It did not offend that one either. And it did not offend the principle that:

…an electoral redistribution is to be made by a Commission that is independent of political influence or control.

If it did not offend any of those provisions, it did not need a referendum and therefore this parliament, two years ago, was able to pass the bill that we did.

I think it is worth actually setting that out. Once it became necessary that there was no amendment, then subsections (1) and (3) of section 83 could be deleted by this parliament. The Greens moved to delete them. Those amendments were supported by the Labor government, the Hon. Kelly Vincent and the Hon. John Darley and they were successful.

In fact, I will go one step further and say that the majority in favour of repealing those provisions could have been even higher, because we also had the in-principle support of the Australian Conservatives. Members can go back and look at the Hansard, as I did, but according to the Hon. Dennis Hood the only reason the Conservatives voted with the Liberal opposition was that they had made a commitment to do so, not because they thought it was good policy. They specifically said they were inclined to see the value in what the Greens were trying to do and did eventually succeed in doing.

I just wanted to put those things on the record. The Greens are pleased to have played an historic role in removing an embarrassing and unfair provision from the state's constitution, and we will not be supporting its reintroduction as proposed by the government. We will be opposing this bill, and we will be opposing it at the second reading.