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ACTU SUBMISSION TO THE CONSTITUTION COMMISSION OF VICTORIA

November 2001

INTRODUCTION

This submission is made by the Australian Council of Trade Unions.

The ACTU was established in 1927. Located in Melbourne, it has 44 affiliated unions with a combined membership of around 1.8 million workers throughout Australia, and some 350,000 who live and work in Victoria.

The ACTU is charged with representing the views and interests of these workers. Accordingly, the ACTU has a strong interest in systems of government throughout Australia, including in Victoria.

THE ROLE OF THE LEGISLATIVE COUNCIL

The ACTU notes that the Legislative Council was established primarily for “the protection of wealth and privilege”. (Discussion Paper released by the Commission: A House of Review: The Role of the Victorian Legislative Council in the Democratic Process p 14)

Put more colourfully by Claude Forell, the Council was established “as a bastion of privilege, power and paternalism to resist the potential ravages of radical democracy in the popularly elected Legislative Assembly.” (The Age 2/10/01)

The ACTU believes that public perceptions of the Council have not changed significantly and that there is an urgent need for reform.

The ACTU endorses the views of the Chairperson of the Commission, Professor George Hampel QC, who states in his introduction to the Discussion Paper:

“To remain relevant and effective all structures and institutions that serve the community must be open to scrutiny, review and change if necessary.” (p 5)

The ACTU supports reform of the Legislative Council and, in particular, reform of the method of selection of members of the Council.

We stress that without reform of the selection process any other changes to the role or responsibilities of the Council will be nugatory, primarily because of the high level of party discipline imposed on Council members.

This submission follows the headings of the terms of reference of the Commission.

(i) the responsiveness and responsibility of the Upper House to the Victorian people

As currently constituted, the Legislative Council does not represent or respond to the Victorian community. The ACTU, which has experience of legislatures nation-wide, endorses the view put by The Age newspaper that it “is one of the least productive and unrepresentative parliamentary bodies in the nation.” (Editorial 21/3/01).

This is apparent in the Council’s remoteness from electors, due to the length of terms and staggered election timetable.

The terms of members and the staggered election of members means that at any given time half the members of the Council have not faced election for eight years.

The result is that they may be out of touch with community sentiment and not in tune with the changing needs and aspirations of the communities they were elected to represent.

The ACTU supports four year terms for members of the Legislative Council.

There is no sound reason why only half of the Legislative Council should go to the people at each Legislative Assembly election, given its party political nature.

(ii) the role of and accountability of the Upper House in relation to Executive Government

The ACTU does not believe that the Legislative Council should have an unfettered ability to obstruct the Legislative Assembly in the implementation of policies for which it has a clear mandate from the people.

Currently the Council merely replicates the partisan voting patterns of the Assembly. As stated in the Discussion Paper: “It is not so easy to identify a clear difference between the role, structure and powers of the current Upper and Lower Houses of the Victorian Parliament.” (p16)

The Council does not appear to perform the functions of a house of review, identified in the Discussion Paper as:

  • Bringing a range of different perspectives to bear on public policy

Council members will often simply replicate speeches made by their own party representatives in the Legislative Assembly and do not necessarily bring different perspectives to bear.

As noted in the Discussion Paper, in order for different perspectives to be aired, the membership of the Council would need to be significantly different from the Assembly, requiring a different method of selection of members of the Council.

  • Scrutinising Government activities, policies and legislation, together with an ongoing oversight of human rights issues raised by Courts, administrative tribunals and ombudsmen

The Council has rarely engaged in this type of scrutiny. It is particularly noteworthy that during the period of the Kennett Government, when threats to fundamental democratic principles were identified by courts, tribunals and independent statutory office holders, the Coalition–dominated Council did not play a moderating role.

  • Identifying points of concern and requiring the Government to justify or reconsider its policy intentions

There is no indication that the Council performs this role, other than in a narrow party political way which, as noted, merely replicates the arguments that have been made by the same party in the Assembly.

  • Allowing more time and opportunity for consideration of legislation

The mere existence of the Council and the associated parliamentary timetable means that Bills transferring from the Assembly to the Council lie over for a longer period of time – although there were instances of almost instantaneous approval by the Council of legislation implementing controversial Kennett Government initiatives.

Nevertheless, the longer period of time which currently operates does not often lead to greater opportunity for open consideration of legislation or responsiveness to community concern. The ACTU was involved in consultation regarding the Fair Employment Bill recently put forward by the Labor Government. Despite a high degree of community support for that Bill, the Council merely voted along party lines to defeat it.

  • Amending and improving legislation or, in some cases, disallowing it

As noted in the points above, the Council does not provide any alternative viewpoints to those that are expressed in the Assembly. In recent times the Council has rejected the Fair Employment Bill and the Home Detention Bill.

The blocking of the Fair Employment Bill was a major concern to the ACTU given the Government’s specific mandate for this legislation and the strong community support for its provisions.

  • Representing strong regional interests

The ACTU has a strong network of regional trades and labour Councils. We support having strong regional interests represented in the Victorian Parliament. Unfortunately, the Legislative Council has never performed this role. As previously stated, Council members confine themselves rigidly to narrow party political policies and positions.

  • Committees

The Discussion Paper asks whether the Legislative Council could make better use of committees so as to more effectively operate as a house of review.

The ACTU, whilst supportive of greater use of committees, notes that they will only be successful if the membership of the Council is altered by adoption of a different method of election. As the Discussion Paper notes, committees of the Australian Senate have only been effective after “a broader range of members began to be elected to that House”. (p19)

The ACTU has had extensive experience with Senate committees, and can confirm that, at least in some cases, committees composed of members who do not see themselves as merely adjuncts to their party equivalents in the House of Representatives can play a valuable role in assessing legislation and proposing amendments. Senate committee effectiveness is, of course, enhanced by the fact that for many years no Government or Opposition has had a Senate majority.

(iii)whether the Legislative Council should retain the power to reject appropriation bills, and, if so, whether any or what limitations should be placed on that power

Consistent with the view put in respect to point (ii) above, the ACTU does not believe the Council should retain the power to reject or amend appropriation bills passed by the Assembly

As noted in the Discussion Paper the “Powers of the Legislative Council in this regard are among the strongest of all Upper Houses in the Westminster system.” (p 14)

The fact that few if any other upper houses have the power to reject or amend appropriation bills reflects the contemporary view that for effective modern government consistent with Westminster principles, no upper house should be able to impede a government with respect to money bills.

This modern principle of government should be reflected in the Victorian system of Government.

(iii) whether the Members of the Legislative Council should be elected one half at each election or should all be simultaneously elected

As stated in point (i) above, the ACTU believes all members of the Legislative Council should be simultaneously elected.

(iv) whether the Legislative Council should be elected on the basis of proportional representation and, if so whether this should be on the basis of multi member electorates or on any other and what basis

As stressed in the Discussion Paper, it is clear that the method of selection of members of the Council has a major bearing on the role it performs.

“Because of the party system, it is possible that if either the Government or the Opposition has a majority in the Upper House then its capacity to act as a House of Review will be affected. If Government supporters form a majority, then party loyalty will inhibit the House in its critical review of the Government’s activities. If the Opposition has a majority, then party loyalty and the prospect of defeating the Government at the next election may be the motivating force, rather than the need for genuine review.” (p 18)

The current arrangements disproportionately advantage the conservative parties. In the 1999 general election for the Legislative Council the ALP won 42.4 per cent of the primary vote and 50.1 per cent of the two party preferred vote across the state. However only eight of the 22 Council seats (36 per cent) were won by Labor. With 39.7 per cent of the vote the Liberal Party won half of the seats and the National Party, with 7.2 per cent of the primary vote won 13 per cent of the seats. (Research by Nicholas M. Economou and Brian J Costar)

This is unfair and inequitable. It highlights the need for reform of the method of selection of members of the Upper House in Victoria.

The ACTU regards the issue of selection of members of the Legislative Council as the key issue to be dealt with if there is to be any reform of the Council.

As noted in the Discussion Paper,

“Under a proportional representation system voters can express support for a wider range of candidates and associated policy positions.” (p22)

The ACTU supports this view. This is reflected in the experience of the Australian Senate and the state upper houses in NSW, SA and WA.

As to whether the electorate should be the State as a whole or multi member electorates the ACTU agrees with the comments made by Claude Forell (The Age 3/10/01) in rejecting the State as a single electorate because it:

“encourages a plethora of fringe groups and candidates to stand, gives the party elites too much control over the choice of electable candidates and is apt to give minor parties or independents the balance of power.”

The ACTU supports a system of multi-member electorates, including the proposal for eight electorates each returrning five members. With an Upper House membership of 40, this would require successful candidates to achieve a quota of 16.6 per cent, which would ensure that only candidates with a reasonable level of community support would be successful.

OTHER ISSUES

(ii)A fixed four year term of Parliament

The ACTU sees no reason to change the present system of four year terms with a minimum of three. This provides a measure of certainty and longevity sufficient for good governance while providing the Government of the day with some flexibility in terms of the timing of the election.

(ii)the reduction, to any and what extent, of the total number of Members of either House of Parliament.

The change in the method of election of Legislative Council members would result in a reduction in the number of members in the Council from 44 to 40. The ACTU sees no need to alter the number of members of the Legislative Assembly.

(iii) the removal or modification in any way of the nexus between the Houses which is provided by sections 27 and 28 of the Constitution Act.

The ACTU sees no need for the continuation of a specific nexus between the Houses of Parliament. If the Legislative Council is to be elected at the same time as the Assembly and on the basis of multi-member electorates there is no need for a nexus.

CONCLUSION

The ACTU recognises that the task of balancing stability with representation of different views and interests in a parliamentary system is a difficult one. Nevertheless, the structure of the Victorian Legislative Council provides neither. Reform is badly needed to ensure that its membership is more representative of and accountable to Victoria voters.