Constitution Amendment Bill

Suspension of standing orders agreed to.

Motion by the Hon. J. P. Hannaford agreed to:

That it be an instruction to the Committee of the Whole that it has power to consider amendments relating to the redistribution of New South Wales into electoral districts.

The Hon. J. P. HANNAFORD (Leader of the Opposition) [8.08 p.m.], by leave: I move Opposition amendments Nos 1, 2 and 3 in globo:

No. 1 Page 2, clause 1, line 3. After "Constitution" insert "and Parliamentary Electorates and Elections".

No. 2 Page 2. Insert after line 7:

4 Amendment of Parliamentary Electorates and Elections Act 1912 No 41

The Parliamentary Electorates and Elections Act 1912 is amended as set out in Schedule 2.

No. 3 Page 3, Schedule 1, line 1. After "Amendments" insert "to the Constitution Act 1902".

These are procedural amendments to enable the Committee to address proposed amendments which will affect the Parliamentary Electorates and Elections Act.

Amendments agreed to.

The Hon. J. P. HANNAFORD (Leader of the Opposition) [8.13 p.m.]: I move Opposition amendment 4:

No. 4 Page 3, Schedule 1. Insert after line 4:

[2] Section 28B

Insert after section 28A:

28B Additional distribution after each general election

(1) A distribution of New South Wales into electoral districts must be made forthwith after every general election of Members of the Legislative Assembly.

(2) This section does not apply if a distribution is required to be made under any other section of this Act.

This amendment clearly arises from section 27(1)(d) of the Constitution Act. The intention of the amendment is to facilitate a redistribution after each election. The Government will no doubt seek to argue that section 7B, which states that a bill that expressly or impliedly repeals or amends section 27 shall not be presented for assent until there has been a referendum, precludes the amendment. However, if that were so section 27(1)(d) would not have any meaning. Section 27(1)(d) must have some effect, that is, there has to be a mechanism to create additional time by legislation to provide for a redistribution. Proposed section 28B does not fly in the face of the intention of section 27(1)(d). The effect of the amendment is to ensure that redistribution occurs in New South Wales on a regular basis. However, that does not preclude a redistribution if, as the Act envisages, a malapportionment arises. I commend the amendment to the House.

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The Hon. M. R. EGAN (Treasurer, Minister for Energy, Minister for State and Regional Development, Minister Assisting the Premier, and Vice-President of the Executive Council) [8.15 p.m.]: The Government opposes the amendment moved by the Leader of the Opposition. The amendment seeks to insert a new section 28B into the New South Wales Constitution Act which will require a redistribution after every general election for the Legislative Assembly. The proposed amendment appears to be unconstitutional, because it would have the effect of impliedly repealing part of section 27 of the Constitution Act, which is an entrenched provision that can only be expressly or impliedly amended or repealed by way of referendum.

Section 27 includes a provision that allows for redistribution to take place "at such additional times as may be provided by law". That is how section 28A was enacted without the need for a referendum. Section 28A provides for additional redistributions when more than one quarter of the number of electoral districts has been malapportioned for a period of more than two months. However, the amendment moved by the Leader of the Opposition does not provide only for additional time for redistribution. It would also prevent section 27(1)(c) from having effect. Section 27(1)(c) expressly provides for the possibility that one redistribution will apply across two elections. The Opposition’s requirement for a redistribution after each election appears to impliedly repeal section 27(1)(c) without a referendum, contrary to section 7B of the Constitution Act.

The Hon. ELISABETH KIRKBY [8.17 p.m.]: I should like to go over the history of amendments I moved during the time of the coalition administration. They were supported by the coalition because at the time members on the crossbenches supported the coalition. But when the amendments came into effect, I was attacked. I said they would result in a redistribution after every election. Members of the Labor Party of the day were extremely unhappy about that. In theory, I cannot understand why there should not be a redistribution after every election if electorates are malapportioned. Many electorates in New South Wales were malapportioned in 1995, but no redistribution occurred. More than 40 per cent of seats in the State are now malapportioned.

I am not capable of judging whether this amendment is unconstitutional. I have been informed by the Government, as the Leader of the Government has just pointed out, that it is unconstitutional for all the reasons he has put on the record. However, I have also been told by the Government’s advisers that it would be possible for the bill to go through tonight. There is an absolutely concrete necessity for a redistribution before the next election in 1999, so the amendment proposed by the Opposition would not have any impact on such an election. It would only have an impact on the election in 2003 and, if it is found to be constitutionally invalid because of an entrenched provision in the Constitution, it would be possible to have a referendum before the 2003 election.

Perhaps the Government would be happy to pass the amendment proposed by the Leader of the Opposition and give an undertaking that in order to tidy up any constitutional problems - which certainly will not affect the 1999 election - a referendum be held in 1999, concurrent with the election so that the cost to the taxpayer is minimal, to ensure that there can be a redistribution after every election. Redistribution occurs only in the case of malapportionment, and in many electorates no malapportionment would occur. The enormous shifts in population in New South Wales, particularly the shift into Sydney’s inner city, have led to a requirement for redistribution. There was a time when people did not live in the inner city; it was a business, banking and retail centre. Now every second block has new apartment buildings that will be occupied by voters. Pyrmont will be developed into an enormous population centre.

Population shift will certainly have an impact on various electorates of the inner city of Sydney, including, possibly, the seat of Bligh. It may very well be that those electorates will be malapportioned by the 2003 election and another redistribution will be necessary. The provision for electorate redistribution after every election is not unusual in other States. Under South Australian legislation it is inevitable that a redistribution process be followed after every election. In my opinion such an amendment should not be too difficult for the Government of New South Wales to accept. However, as I have said, if such a provision is unconstitutional then that could be solved by way of referendum. Perhaps the Minister in reply would inform the House whether the Labor Government would be willing to hold a referendum into this complex constitutional question at the time of the 1999 election.

The Hon. M. R. EGAN (Treasurer, Minister for Energy, Minister for State and Regional Development, Minister Assisting the Premier, and Vice-President of the Executive Council) [8.23 p.m.]: I regret that I am unable to give the commitment sought by the Hon. Elisabeth Kirkby. I
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point out that the existing section 28A(1) of the Constitution Act provides for electorate redistribution when a malapportionment of electorates has occurred for more than two months. That happens automatically. That is my understanding, as is confirmed by my advisers.

The Hon. ELISABETH KIRKBY [8.24 p.m.]: All I can say in reply to the comments made by the Leader of the Government is that there has been gross malapportionment in many New South Wales electorates for considerably longer than two months, yet there has been no recent redistribution, irrespective of what may be provided in current legislation. I do not understand why it should be difficult for the Government to agree to this amendment, which merely clarifies and gives added legal weight to a provision that already exists under legislation - as the Leader of the Government has said - but has not been followed in recent years.

Amendment negatived.

The Hon. R. S. L. JONES [8.25 p.m.]: I move the amendment circulated in my name:

Page 3, Schedule 1, line 6. Omit all words on that line. Insert instead "Omit the section."

The purpose of this amendment is to remove the statutory bar on the number of Ministers. There is no limit on the number of Ministers in Queensland, which has a population of 3.3 million and 18 Ministers. Victoria has a limit of 22 Ministers and currently has 19 Ministers. Queensland has a population of 183,000 per Minister, Victoria has 236,800 per Minister and New South Wales has 305,000 per Minister. It would not be inappropriate for New South Wales to increase its number of Ministers by two or three. This amendment follows an amendment I moved in 1990 to remove Nick Greiner’s proposal to entrench in the Constitution Act the number of 99 Legislative Assembly members. My amendment is designed to allow the Government flexibility. Some Ministers have too many responsibilities at present. The Treasurer, for example, has much too heavy a burden.

The Hon. M. R. Egan: But you try to take anything from me!

The Hon. R. S. L. JONES: That will probably happen anyway. It is my belief that there should be a separate Minister for Energy. It is ridiculous that the Hon. M. R. Egan be Treasurer, Minister for Energy, Minister for State and Regional Development, Minister Assisting the Premier, and Vice-President of the Executive Council. He has too many responsibilities and cannot give the attention to energy that is needed in these days of world interest in greenhouse impacts and the heating of the globe; proposals to change the ownership of our State electricity corporations; and alternative forms of energy such as solar and wind power. The other day I spoke with the Australian who formed the world’s first wind power station, in America. New South Wales needs a separate Minister for Energy.

There are also problems with the ministries of the Hon. Bob Martin. The Hon. Bob Martin is both Minister for Mineral Resources, and Minister for Fisheries. Often there is conflict between his portfolios, for example when he grants a licence for a mine such as Timbarra that will have an adverse impact on fisheries. It is clear that his portfolios should be rearranged. The Hon. Carl Scully is Minister for Roads, Minister for Public Works and Services, Minister for Ports, Assistant Minister for Energy, and Assistant Minister for State and Regional Development. I recognise that the Hon. Carl Scully is a highly capable Minister, but how can he possibly have responsibility for all of his portfolios? His resources are being stretched too thinly.

To my mind, there should be one or two extra Ministers, starting with a separate Minister for Energy. Any government should have flexibility over the number of Ministers, rather than being tied to a number of 20, or 21 as proposed under the bill. The flexibility allowing a government to appoint additional Ministers would not mean that a government had to appoint the maximum number of Ministers. That does not occur in Victoria, which has three fewer Ministers than the number that is allowed. Queensland, which has no limit on the number of Ministers, has only 18 Ministers. It is nonsense to make legislative provision for the number of Ministers. Obviously, this provision is designed to appease news media representatives who believe that the number of Ministers should be limited in order to save public money. Sometimes it is necessary to have more Ministers, for example when important matters arise, and a separate Minister for Energy is needed.

The Hon. ELISABETH KIRKBY [8.30 p.m.]: I support the amendment of the Hon. R. S. L. Jones. I believe that New South Wales is in a very unusual position at this time because, Sydney having won the bid to host the Olympic Games, it has been necessary that one Cabinet Minister be given sole responsibility for the Olympic Games. That has meant that the burden on other Ministers has been considerably heavier than it would have been if Sydney had not been successful in obtaining the
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Games. One cannot quibble about the fact that the Olympic Games are important and it is reasonable that the government of the day should appoint a Minister with sole responsibility for the Games. It is not something that is likely to occur on a regular basis and it may be that at some future time the number of Ministers will be reduced. In view of the fact that we are striving to make the Olympic Games in Sydney the best Games of the century, in order to relieve the pressure on other Ministers in the Cabinet and in the outer Cabinet the Government should be permitted to appoint an additional Minister. For those reasons I support the amendment.

The Hon. M. R. EGAN (Treasurer, Minister for Energy, Minister for State and Regional Development, Minister Assisting the Premier, and Vice-President of the Executive Council) [8.31 p.m.]: The Government will accept the apparent will of the Committee and support the amendment.

The Hon. J. P. HANNAFORD (Leader of the Opposition) [8.31 p.m.]: The Treasurer might accept the will of some members of the Committee but he certainly does not have the support of the Opposition for this proposal. The proposition by the Hon. R. S. L. Jones is outrageous and the Government’s acceptance of his amendment is even more outrageous. I have not the slightest doubt that at some stage a proposal for just such an amendment was mooted within the Labor Party. However, wiser heads prevailed and the Government decided to increase the number of Ministers by one. The Government is now getting what it originally wanted and will be able to blame the Hon. R. S. L. Jones. Honourable members will appreciate that the cost of administering a ministry is approximately $1.5 million and they have heard the Hon. R. S. L. Jones advocate the appointment of at least four additional Ministers.

For the Government to suggest to the community of New South Wales that there is justification for the appointment of more Ministers than currently exist is outrageous. At a time when the Treasurer has driven this State into a massive deficit, when services have been cut across the State and there are insufficient funds for community services, health and education, the Government has made a decision to appoint an additional Minister. It is prepared to direct funds away from essential community services. That is a form of irresponsibility that one would not have expected of the Treasurer.

The Opposition is totally opposed to an increase in the number of Ministers beyond 20. In fact, there may even be an argument in favour of having fewer Ministers in New South Wales as the right wing of the Labor Party tries to buy its way back into factional favour. So far as the Opposition is concerned, it is reckless of Government members to continue to spend taxpayers’ money in order to stand themselves in greater stead with their colleagues. Both the Premier and the Treasurer are out of sorts with their colleagues and want to buy their support, and the Treasurer has a reckless and indifferent attitude to his responsibility to control the expenditure of State funds. The Opposition opposes the amendment and will make certain that the people of New South Wales are made well aware of the cabal the Government has created in order to achieve successful passage of this bill.

The Hon. ELISABETH KIRKBY [8.34 p.m]: I find the remarks of the Leader of the Opposition quite astonishing considering that only 10 days ago the Federal leader increased the number of Ministers in the Federal Cabinet. If it is necessary that money should be saved for more essential purposes because the State is being starved of money by the Federal Government, why has the Opposition attacked the State Government for doing exactly what the Federal Government has done? This is getting a bit silly. If it is proper and the coalition is happy that Mr Howard has found it necessary to increase the size of his Federal ministry, equally it should be proper for the State Government to do the same, because this State will host the Olympic Games. The Government should have the right to increase the number of Ministers in New South Wales and it has suggested an increase of only one. I believe it is possible that later administrations may cut back that number but at this time I believe the extension of the ministry by one is a perfectly reasonable suggestion. As I said earlier, I support the amendment moved by my colleague the Hon. R. S. L. Jones.

Reverend the Hon. F. J. NILE [8.36 p.m.]: The Christian Democratic Party consider the Government’s support for the amendment hypocritical. The argument put forward in support of the bill was that a reduction in the number of members in the Legislative Assembly would save money. Suddenly that money can be spent setting up a ministry. I believe that shows that the argument was a fraud from the very beginning. Now the Australian Democrat and the Independent Democrat appear to be supporting the proposal.

The Hon. R. S. L. JONES [8.37 p.m.]: I want to clarify the point that the amendment will remove the statutory limit on the number of Ministers, but that does not mean that the ministry will be increased to 24, 25 or 26 members.

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The Hon. D. F. Moppett: How naive.

The Hon. R. S. L. JONES: It is nonsense to say that. It may be that the Opposition is right and there would be an outcry in the media if an additional four Ministers were appointed. The media would certainly control that, I should imagine.

The Hon. D. F. Moppett: They could do it one by one.

The Hon. R. S. L. JONES: They could do it one by one but the point is that these ministries already exist. The Government is merely moving one ministry from one person to another person. The person already exists and will receive a marginal increase in salary. The actual cost is nowhere near as great as people estimate, because the ministries already exist. It merely means that the portfolios will get the full attention of an individual Minister. That would be preferable to having a backbencher sitting there, twiddling his thumbs. We could well utilise some more talent on the frontbench and disperse some of the responsibility over one or two additional Ministers.

Question - That the amendment be agreed to - put.

The Committee divided.

Dr Burgmann Mr Macdonald
Ms Burnswoods Mr Obeid
Mr Cohen Mr Primrose
Mr Corbett Ms Saffin
Mr Dyer Mr Shaw
Mr Egan Mr Tingle
Mr Johnson Mr Vaughan
Mr Jones
Mr Kaldis Tellers,
Mr Kelly Mrs Isaksen
Ms Kirkby Mr Manson

Mr Bull Rev. Nile
Mrs Chadwick Dr Pezzutti
Mrs Forsythe Mr Ryan
Mr Gallacher Mr Samios
Miss Gardiner Mrs Sham-Ho
Dr Goldsmith Mr Willis
Mr Hannaford Tellers,
Mr Lynn Mr Jobling
Mrs Nile Mr Moppett

Mrs Arena Mr Kersten
Mrs Symonds Mr Smith

Question so resolved in the affirmative.

Amendment agreed to.

The Hon. J. P. HANNAFORD (Leader of the Opposition) [8.45 p.m.]: I move Opposition amendment 5 as it relates to proposed item [1]:

No. 5 Page 3. Insert after line 6:

Schedule 2 Amendment of Parliamentary Electorates and Elections Act 1912

Part 1 Amendments relating to appointment of commissioners and procedure for distribution

[1] Section 6 Appointment of commissioners for redistribution of seats

Omit section 6(2). Insert instead:

(2) Of the persons appointed:

(a) one must be, or have been, a Judge of the Supreme Court, and

(b) one must be the person who for the time being holds the office of Electoral Commissioner, and

(c) one must be the person who for the time being holds the office of Surveyor-General under the Public Sector Management Act 1988.

(2A) The person appointed as an Electoral Districts Commissioner under subsection (2)(a) must declare to the Governor whether or not the person is or has been a member of a party that is or has been a registered party (whether or not the party was registered when the person was a member) and must declare the details of any such membership.

The purposes of the amendment are threefold. The effect of the amendment will be to restrict the person acting as chairman of the Electoral Redistribution Commission to being a judge of the Supreme Court. As presently constituted the Act enables an appointment to be made from those who are judges of the Supreme Court, District Court or the Industrial Commission or those who are former judges. The Opposition is of the view that the importance of the role that is to be undertaken is such that it must be pursued by a person of the most senior office. That is not inconsistent with the experience in other jurisdictions.

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The amendment will ensure that the person who is to be appointed to undertake the work of survey advice is the Surveyor General. The legislation as currently framed enables the appointment to be made from either the Surveyor General or any person who is a surveyor in New South Wales. For a couple of decades or more it has been the practice for the Surveyor General to be the person who holds this office. The coalition is of the view that there should be two fixed appointments - that of the Electoral Commissioner and that of the Surveyor General. The government of the day should be able to make a discretionary appointment, which should be that of a judicial officer.

So that there is no perception that favouritism is exercised in the choice of persons who are appointed - particularly from those who may be retired judges - experience demonstrates that nearly all judges who have been members of political parties resign from those activities. The bill will enable a mechanism to be put in place whereby there is a recognition of a perception of bias if the person who undertakes or accepts an appointment in the judicial officer role has been an active member of a political organisation. Under this legislation acknowledgment of such membership does not need to be made public; it need only be made to the Governor. The Governor could then exercise the discretion of raising with the proposed appointee whether or not it is considered desirable that that person continue to accept the appointment, as has always been done in such matters.

This mechanism, more than any other, seeks to avoid the allegation heard from time to time that a person who has previously been an active member of a political party could be biased. I do not make that comment on behalf of a particular party, because it has been made by all parties from time to time. The intention of this amendment is to overcome even a perception of bias. All judicial officers seek to avoid being placed in that position. Sometimes it is not necessary that retired judges, because they no longer hold judicial office, be perceived to be above bias. However, I acknowledge the requirement for impeccable impartiality.

The Hon. M. R. EGAN (Treasurer, Minister for Energy, Minister for State and Regional Development, Minister Assisting the Premier, and Vice-President of the Executive Council) [8.50 p.m.]: The Government opposes the amendment.

The Hon. Patricia Forsythe: How can the Government oppose it?

The Hon. M. R. EGAN: I shall tell honourable members why the Government opposes the amendment. The first part of the amendment would remove the ability of judges of the District Court or members of the Industrial Commission to sit as electoral commissioners. That would severely limit the pool of available candidates, particularly as the Chief Justice of the Supreme Court has, in the past, been extremely reluctant to allow the appointment of a serving judge. That has meant, therefore, that only retired judges are available. Restricting the pool of possible electoral commissioners to retired Supreme Court judges would leave little choice and may result in there being no willing or available candidate to fill the position in some cases.

It should be noted that historically District Court judges and members of the Industrial Commission have been appointed as electoral commissioners - at least since the 1950s. Therefore, for a long time both positions have been acknowledged in legislation introduced by governments of all persuasions. I indicate that the Government will accept the amendment foreshadowed by the Hon. Elisabeth Kirkby to appoint the position of Surveyor General as an electoral commissioner. Further, the amendment of the Leader of the Opposition will require a declaration to the Governor about whether the commissioner is or has been a member of a political party. I have some difficulty with that provision because it is simply a declaration to the Governor; the information is not published anywhere. It is not a matter of providing the information to the public. What is the purpose of that?

The Hon. Dr B. P. V. Pezzutti: The Leader of the Opposition has explained it. If the Governor thinks that a candidate is a bit iffy he will say, "Rack off."

The Hon. M. R. EGAN: I would have thought that that would put the Governor in a position -

The Hon. Dr B. P. V. Pezzutti: The Governor has quite a lot of discretion, as the Leader of the Government well knows.

The Hon. M. R. EGAN: Members opposite are seeking to put the Governor in a position in the latter part of the twentieth century in which he would not have been in the latter part of the nineteenth century. The proposition is absurd.

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The Hon. ELISABETH KIRKBY [8.54 p.m.]: As has been pointed out by the Leader of the Government, the marriage of two rather different issues has made it extremely difficult for the Australian Democrats to vote on this amendment. I have no objection to the first part of the Opposition’s amendment, which would omit section 6(2) and insert a new subsection. However, I simply cannot accept proposed new subsection (2A), which provides that a person appointed as an electoral commissioner must declare to the Governor whether he or she is or has been a member of a party that is or has been a registered party, and that he or she must declare the details of any such membership. New South Wales has antidiscrimination legislation. It is not possible for interviewers of applicants for jobs in the public service to ask about political affiliations.

The Hon. Patricia Forsythe: It is far more important as Independents -

The Hon. ELISABETH KIRKBY: It is interesting to hear the honourable member’s interjection. Presumably she was about to continue to say that it is important to know the political affiliation of the judge so appointed. The judiciary in New South Wales is very small. I am certain that if Justice Dowd were appointed as an electoral commissioner everyone would know that he had been an Attorney General in a Liberal government. Similarly, if the Hon. Jeff Shaw were appointed, everyone would know that he has been an Attorney General in a Labor government. Remarkably, in 1990 the Greiner Government appointed as an electoral commissioner Judge Lincoln, who had been a Treasurer in a State Liberal government. After the redistribution the ALP acknowledged that Judge Lincoln had acted with scrupulous fairness and that his previous party affiliation had had no influence on his decisions. Politicians are supposed to be professional, as are lawyers and, presumably, judges. If it is suggested that a person appointed as an electoral commissioner should or would show bias towards a party of which he or she was a member, all professional judgment would be thrown overboard.

The Hon. M. R. Egan: That would disqualify everyone.

The Hon. ELISABETH KIRKBY: Yes, because everyone has a political affiliation, and everyone is entitled to such a political affiliation. If the Opposition seriously wanted to tidy up this matter, it should have considered using the provisions of the Western Australian Electoral Distribution Act, section 2 of which provides:

. . . there shall be 3 Electoral Distribution Commissioners of whom -

(a) one shall be the Chief Justice of Western Australia who shall be chairman.

The Act further provides:

If the office of Chief Justice of Western Australia is vacant, or if the Chief Justice is absent or is for any other reason unable to act as a Commissioner, the Governor may appoint another Judge of the Supreme Court -

That provision would be much better because it provides that the Chief Justice would be appointed as electoral commissioner and only when the Chief Justice is unable to serve can the Government appoint a Supreme Court judge. The Opposition’s amendment does not go into that much detail. We must ensure that no-one is forced into saying, even to the Governor behind closed doors, that he or she has a party affiliation. It would be very difficult, particularly in New South Wales with its very small judiciary, for anyone to keep secret any previous party affiliations. For those reasons the Australian Democrats cannot support the amendment moved by the Leader of the Opposition.

Reverend the Hon. F. J. NILE [9.01 p.m.]: I have a couple of questions about this amendment. The Treasurer has said that the Chief Justice would not appoint a judge of the Supreme Court. I wonder what information the Treasurer has to support that statement. I understand that the concern of the Chief Justice has nothing to do with the Electoral Commission but everything to do with commissions of inquiry or royal commissions, in relation to which he would not want his judges to be put in compromising positions. Surely that does not apply to the Electoral Commission. Unless the Treasurer has a statement from the Chief Justice to the effect that he will not allow a judge to be appointed, this amendment should actually work. Obviously the electoral commissioner must be one of those appointed to decide on any redistribution of seats. The Christian Democratic Party supports also the appointment of the Surveyor General, rather than merely a person qualified as a surveyor.

The Hon. Elisabeth Kirkby referred to how a person votes. The amendment has nothing to do with how a person votes. It relates to membership of a political party. Everyone votes. The Treasurer interjected and said that no-one could be a candidate, or words to that effect. The amendment is about membership of a political party. Without having discussed this with members of the Opposition, I assume the Opposition is saying that the Government should avoid a blatant political appointment, such as Judge Frank Walker, who has
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been intimately involved with a political party and who may find it difficult to be unbiased. Terry Sheahan has also been mentioned. The same could be said of John Dowd, a former Liberal Attorney General. In my opinion, none of those mentioned should be appointed as electoral commissioners. Anyone appointed to such a sensitive position should not have an association with either side of politics.

The Hon. ELISABETH KIRKBY [9.02 p.m.]: It seems the honourable member did not understand what I said about professional judgment. It is well known that a former member for Burrinjuck, Terry Sheahan, who has now been appointed a judge, has resigned from the Labor Party. As I said, a previous Treasurer of a State Liberal government was regarded by the Labor Party as a supremely fair commissioner. If honourable members accept the argument advanced by Reverend the Hon. F. J. Nile that it does not matter how a person votes but it matters whether they have belonged to a political party, they will take away that person’s right to belong to the political party of his or her choice because it may count against them at a later stage in their career. I believe that is discriminatory. Every individual has a right to belong to a political party. Some may not be very active in the party; some may rise to an administrative position in the party. I cannot accept the proposition that because they have been a member of a political party their judgment will be tainted and, therefore, they cannot be relied on to operate in a professional manner.

The Hon. J. P. HANNAFORD (Leader of the Opposition) [9.04 p.m.]: I ask that paragraphs (a), (b) and (c) of proposed section 6(2) be dealt with seriatim.

The Hon. M. R. EGAN (Treasurer, Minister for State and Regional Development, Minister Assisting the Premier, and Vice-President of the Executive-Council) [9.04 p.m.]: That would not make sense. Paragraphs (a), (b) and (c) must be read together otherwise they will not make sense.

The CHAIRMAN: It may be that the Leader of the Opposition is concerned that if paragraph (c) is negatived, the Hon. Elisabeth Kirkby may not be able to proceed with her amendment as circulated. In my view there is sufficient difference between the amendments to allow each to be dealt with separately if the other is negatived. Accordingly, I propose to put the paragraphs seriatim as requested by the Leader of the Opposition.

The Hon. M. R. EGAN (Treasurer, Minister for State and Regional Development, Minister Assisting the Premier, and Vice-President of the Executive-Council) [9.04 p.m.]: I suggest that an examination of section 6(2) of the Parliamentary Electorates and Elections Act and the amendment moved by the Leader of the Opposition will show that it is simply impossible to amend section 6(2) by putting paragraphs (a), (b) and (c) separately to the Committee. It simply cannot be done. It will make a nonsense of the result.

The CHAIRMAN: Order! I do not accept the proposition of the Leader of the Government.

The Hon. R. S. L. JONES [9.07 p.m.]: I seek some clarification. Subsection (2)(c) provides that one of the persons appointed must be the person who for the time being holds the office of Surveyor General under the Public Sector Management Act 1988. I am confused about the reference to "for the time being". I assume that means that the person will be the Surveyor General, does it?

The Hon. J. P. HANNAFORD (Leader of the Opposition) [9.08 p.m.]: Yes.

Question - That Opposition amendment 5 as it relates to paragraph (a) of proposed section 6(2) be agreed to - put.

The Committee divided.

Mr Bull Mrs Nile
Mrs Chadwick Rev. Nile
Mrs Forsythe Mr Ryan
Mr Gallacher Mrs Sham-Ho
Miss Gardiner Mr Rowland Smith
Dr Goldsmith Mr Tingle
Mr Hannaford Mr Willis
Mr Jones
Mr Kersten Tellers,
Ms Kirkby Mr Jobling
Mr Lynn Mr Moppett
Dr Burgmann Mr Macdonald
Ms Burnswoods Mr Obeid
Mr Cohen Mr Primrose
Mr Corbett Ms Saffin
Mr Dyer Mr Shaw
Mr Egan Mr Vaughan
Mr Johnson Tellers,
Mr Kaldis Mrs Isaksen
Mr Kelly Mr Manson

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Dr Pezzutti Mrs Arena
Mr Samios Mrs Symonds


Question so resolved in the affirmative.

Opposition amendment 5 as it relates to paragraph (a) of proposed section 6(2) agreed to.

Opposition amendment 5 as it relates to paragraph (b) of proposed section 6(2) agreed to.

Opposition amendment 5 as it relates to paragraph (c) of proposed section 6(2) agreed to.

Question - That Opposition amendment 5 as it relates to proposed section 6(2A) be agreed to - put.

The Committee divided.

Mr Bull Rev. Nile
Mrs Forsythe Mr Ryan
Mr Gallacher Mr Samios
Miss Gardiner Mrs Sham-Ho
Dr Goldsmith Mr Rowland Smith
Mr Hannaford Mr Willis
Mr Kersten Tellers,
Mr Lynn Mr Jobling
Mrs Nile Mr Moppett

Dr Burgmann Mr Macdonald
Ms Burnswoods Mr Obeid
Mr Cohen Mr Primrose
Mr Corbett Ms Saffin
Mr Dyer Mr Shaw
Mr Egan Mr Tingle
Mr Johnson Mr Vaughan
Mr Jones
Mr Kaldis Tellers,
Mr Kelly Mrs Isaksen
Ms Kirkby Mr Manson

Mrs Chadwick Mrs Arena
Dr Pezzutti Mrs Symonds

Question so resolved in the negative.

Opposition amendment 5 as it relates to proposed section 6(2A) negatived.

The Hon. J. P. HANNAFORD (Leader of the Opposition) [9.26 p.m.]: I move Opposition amendment 5 as circulated as it relates to proposed item [2]:

[2] Section 8 Chairman

Omit ", a member of the Industrial Commission of New South Wales or a Judge of the District Court".

This amendment is consequential on the carriage of paragraph (a) of proposed section 6(2).

Opposition amendment 5 as it relates to proposed item [2] agreed to.

The Hon. ELISABETH KIRKBY [9.28 p.m.]: I move Australian Democrats amendment 4 as circulated as it relates to proposed item [2]:

[2] Section 6(4)

Insert after section 6(3):

(4) The appointment of commissioners under the section must occur no more than 2 years after the date of return of the writs for choosing the Legislative Assembly that exists at the time the distribution becomes necessary under the provisions of the Constitution Act 1902. However, if that 2 year period has passed when the distribution becomes necessary, then the commissioners must be appointed within 6 months after the day that the distribution becomes necessary.

I am well aware that the Government is not prepared to support this amendment. I realise that it appears to be rather clumsily worded, but I am trying to change the situation that exists at the moment. It has been possible for the government of the day, for whatever reason, not to set in train the redistribution process. As yet we have not reached the point when a redistribution will take place. In late 1997, with little more than 12 months before the next election, we are faced with the need for a redistribution. There is need for a legislative provision that makes it imperative for the government of the day to set in train a redistribution process at an earlier stage. In South Australia there is legislative provision that redistribution be put in train as soon as an election has been held.

South Australia does not have fixed four-year parliamentary terms, as does New South Wales. In South Australia the Parliament must serve for three years, and the Premier of the day then has the right to go to the polls at any time of his choosing within the last 12 months of the term. That situation does not apply in New South Wales. It would not be possible to move an amendment that redistribution take place in this State immediately after the holding
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of an election. However, it should be incumbent upon a government to put the redistribution process in place two years before an election. That should not be difficult to achieve, because the dates of New South Wales State elections are set out in the fixed four-year term legislation, and I understand that the election dates have been fixed to approximately 2030.

It is only proper for all political parties, voters and the multitude of public servants involved in redistribution that the process be started within a reasonable period before the holding of an election. If New South Wales were to attempt to follow the South Australian model, it would not be possible to assess the degree of possible malapportionment. I have previously referred to the rapid shifts of population in this State and the explosion of Sydney’s inner-city population. If any necessary redistribution took place two years out from an election we would avoid the difficult position we are in today. If this bill is passed the Government will appoint the commissioners, who will need to go through the necessary process for what will be a very important electoral redistribution in that the boundaries will be redistributed not on 99 seats but on 93 seats.

The CHAIRMAN: Order! I hope that the Committee will bear with me, because in many ways new ground is being broken. It appears that the Hon. Elisabeth Kirkby is speaking to her amendment number 4 as it relates to the insertion of item [2] of proposed schedule 2. The amendment to insert item [2] of proposed schedule 2 conflicts with Opposition amendment 6, which relates to item [4] of proposed schedule 2, which amendment the Clerk received first. Sequentially the Committee should consider amendments dealing with items [3], [4] and [5] of Australian Democrats proposed schedule 2 as proposed by the Australian Democrats and then move on.

The Hon. ELISABETH KIRKBY [9.36 p.m.]: Thank you, Mr Chairman. I was not aware of the conflict to which you have referred. With the leave of the Committee I ask that further consideration of the amendment be postponed.

Consideration of amendment postponed.

The Hon. ELISABETH KIRKBY (9.36 p.m.]: I move Australian Democrats amendment 4 as circulated as it relates to proposed items [3] and [4]:

[3] Section 13 Redistribution of electoral districts by commissioners etc

Omit "in writing" from section 13(2)(b).

[4] Section 13(7)

Insert after section 13(6):

(7) If the comments lodged with the commissioners under subsection (2)(b) are made orally, the obligation to make them available for perusal is an obligation to make a transcript or summary of the comments available.

Item [3] of proposed schedule 2 is a very simple amendment, and it is my understanding that it has the Government’s support. The amendment will give people the opportunity to make submissions to the commissioners orally as well as in writing. Perhaps the Leader of the Government will confirm that the Government is prepared to accept this amendment.

The Hon. M. R. EGAN (Treasurer, Minister for Energy, Minister for State and Regional Development, Minister Assisting the Premier, and Vice-President of the Executive Council) [9.37 p.m.]: It is my understanding that this amendment will allow oral submissions to the commissioners relating to the review process of original submissions. It will allow greater access to the process for smaller parties and individuals, especially those from rural and regional areas. The Australian Democrats item [4] is, I believe, consequential on item [3].

The Hon. ELISABETH KIRKBY [9.40 p.m.]: I will not speak further to item [3], but I will try to give the Committee a brief explanation of item [4]. I have moved the amendment because I believe that at a hearing after the boundaries have been drawn by the commissioners it should be possible for all interested parties to comment orally on those boundaries. It should not be necessary to prepare submissions in writing to be submitted to the commissioners and further distributed to all other interested parties. I am assuming that when the hearings are held in public, as is the practice, and comments are made by those making representations either on behalf of local government or of political parties, it should be possible for people who object to statements being made to have their objections noted at the time. In discussion the Government perceived no problem with the suggestion, provided there was an obligation to make available a transcript or summary of the comments. That is similar to what happens in other hearings that are held in an open forum. I believe it would speed up the process and enable immediate comment to be made, and it would not be possible for comments made at that time to be later misrepresented because a transcript would be made available. The
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Government has previously assured me that, provided a transcript was made available, the amendment would be acceptable to the Government, and I hope that is still the case.

The Hon. M. R. EGAN (Treasurer, Minister for Energy, Minister for State and Regional Development, Minister Assisting the Premier, and Vice-President of the Executive Council) [9.42 p.m.]: As I indicated, the Government will accept the amendments moved in globo by the Hon. Elisabeth Kirkby.

The Hon. J. P. HANNAFORD (Leader of the Opposition) [9.42 p.m.]: The Opposition will not oppose the amendments, but I note that the scheme now proposed will be very messy. Suggestions having been made by all parties on the original maps, and those suggestions having been made available, the normal procedure is for everyone to get a copy of the suggestions and to make their submissions on them. Some people will now make submissions and, within the 14-day period, some people will require the three commissioners to convene. Those three commissioners will now have to sit and listen to any oral submissions that are made. Transcripts of the oral submissions received will be made available. Obviously, those who make written submissions will get copies of the transcripts and the procedure that has been adhered to over the years will be followed. As I indicated, the Opposition does not object to the inclusion of this convoluted, difficult and no doubt expensive procedure, but I issue a warning that the Government has generated a burden for itself which it will regret.

The Hon. J. S. TINGLE [9.44 p.m.]: The Leader of the Opposition is drawing a very long bow in regard to this issue. There is a precedent for this type of submission. Very briefly I point out that in matters such as the allocation of FM broadcasting licences in Sydney, both written and oral submissions were made to the Broadcasting Control Board and those submissions were dealt with one by one. It was not a messy operation. It was conducted in a very orderly manner and everyone had a chance to have a say about each of the submissions made by the interested parties. It does not need to be messy but it must be comprehensive. That is the type of submission we need.

The Hon. D. F. MOPPETT [9.45 p.m.]: Those who have been through the process would tend to agree with the Leader of the Opposition and to disagree with the Hon. J. S. Tingle. The great difficulty in regard to this issue is whether the commissioners will take seriously the impact of the submission on a particular electorate. For example, if someone were to make an oral submission objecting to the fact that Mungindi was included in the Broken Hill electorate, the commissioners might listen politely but the inevitable question that followed would be, "If Mungindi is to be taken out of Broken Hill, what will we do with the rest of the electorates?" One might make a short oral submission or even a lengthy oral submission that does not impact on the other electorates. The truth of the matter is that it will have little impact on the proceedings and will be only a polite way of allowing those people to think that their objections were taken into account. If they are to be taken seriously, other people who are appearing before the commissioners with substantial submissions will certainly need to be able to study what they have said and examine the impact on other electorates that they are interested in, as well as the one that has been commented on.

Australian Democrats amendment 4 as it relates to proposed items [3] and [4] agreed to.

The Hon. ELISABETH KIRKBY [9.46 p.m.]: I move item [5] of Australian Democrats amendment 4 as circulated as it relates to proposed item [5]:

[5] Section 14 Notice of proposed alteration of existing boundaries to be given

Insert after section 14(1):

(1A) That notice must refer to the fact that a written statement of the commissioners’ reasons for making the proposed alteration will be available for inspection at no cost during office hours at the offices of the Electoral Commissioner, for the period referred to in subsection (2).

(1B) For that purpose, the commissioners must ensure that such a statement is provided to the Electoral Commissioner and the Electoral Commissioner must ensure that the statement is made available in accordance with the notice.

I have moved the amendment for a very substantial reason. There has been a great deal of controversy and debate about whether this legislation is a massive rort by the Government. It has been claimed that the Government is intent on gerrymandering the boundaries and that it will have control over the new boundaries. That view has been promoted through the media. It is necessary that voters know why the electoral commissioners have come to the conclusion they have reached. The reasons for the redrawing of the boundaries should be made known to the general public so that we can lay to rest what I believe is the gross exaggeration - I would go even further and say that it is a furphy - that the political parties rort
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boundaries and that the electoral commissioners have no control whatsoever over the boundaries.

That has been the tenor of the debate ever since the legislation was brought to public attention and while it has been debated. It is proper that the electoral commissioners, who are charged under the law with the duty of redrawing the boundaries, must provide written statements of their reasons, and those reasons must be made known to the public. If it is too difficult to distribute them widely, they could easily be made available at the office of the electoral commissioner and at the local council office in each electorate so that voters can go to the local council office and examine the list of reasons. Many other things are displayed in local council offices. It is not an unusual practice. Of course, it is obvious that only politically interested citizens or members of certain political parties will be likely to want to know what the reasons are, but at least they will be distributed in a proper form and the commissioners will be obliged to justify the boundaries they have drawn up. It is for those reasons that I have moved the amendment and I hope it will receive the support of the Committee.

The Hon. M. R. EGAN (Treasurer, Minister for Energy, Minister for State and Regional Development, Minister Assisting the Premier, and Vice-President of the Executive Council) [9.50 p.m.]: The Government sees the merit of this amendment and will therefore support it.

The Hon. J. P. HANNAFORD (Leader of the Opposition) [9.50 p.m.]: The Opposition also supports the amendment.

Australian Democrats amendment 4 as it relates to proposed item [5] agreed to.

The Hon. J. P. HANNAFORD (Leader of the Opposition) [9.51 p.m.], by leave: I move Opposition amendment 5 as circulated as it relates to proposed item [3]:

[3] Section 14 Notice of proposed alteration of existing boundaries to be given

Insert after section 14(3):

(4) The commissioners must complete their consideration of any suggestion or objection lodged with them as soon as is practicable and, in any event, before the expiration of the period of 60 days after the expiration of the period referred to in subsection (2).

(5) The commissioners must hold an inquiry into any suggestion or objection unless the commissioners are of the opinion that:

(a) the matters raised in the suggestion or objection were raised, or are substantially the same as matters that were raised, in suggestions or comments relating to the redistribution lodged with the commissioners in pursuance of section 13, or

(b) the suggestion or objection is frivolous or vexatious.

(6) The commissioners may hold one inquiry into a number of suggestions and objections.

(7) Proceedings before the commissioners at an inquiry into any suggestion or objection must be held in public.

(8) At an inquiry into any suggestion or objection, submissions in relation to the suggestion or objection may be made to the commissioners by or on behalf of the person who, or the organisation that, lodged the suggestion or objection with the commissioners and any person who, or organisation that, lodged suggestions or comments relating to the redistribution with the commissioners in pursuance of section 13.

(9) At an inquiry into any suggestion or objection, the commissioners must consider all of the submissions made to them in relation to the suggestion or objection.

(10) The commissioners are not bound by the legal rules of evidence and may regulate the conduct of proceedings at an inquiry into any suggestion or objection as they think fit.

(11) Without limiting the generality of subsection (10), the following matters are within the absolute discretion of the commissioners:

(a) the manner in which submissions may be made to the commissioners,

(b) the time within which submissions may be made to the commissioners,

(c) the extent to which the commissioners may be addressed, and the persons by whom they may be addressed, on any submission.

(12) As soon as is practicable after the commissioners have concluded their inquiries into any suggestion or objection, they must determine the names and boundaries of electoral districts.

(13) If, in the opinion of the commissioners, their determination is significantly different from the proposal notified in respect of any electoral district under subsection (1) the commissioners must publish in the Gazette and in a newspaper published or circulating in that district a statement to the effect that:

(a) a person who, or an organisation that, was entitled to make submissions under subsection (8) may forthwith lodge with the commissioners a written objection, and

(b) subject to subsection (5), the commissioners must hold an inquiry into any such objection.

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(14) If such a statement is published:

(a) a person who, or an organisation that, was entitled to make submissions to an inquiry under this section may, forthwith upon the publication of the statement, lodge with the commissioners a written objection, and

(b) subject to subsection (5), the commissioners must hold an inquiry into any such objection, and

(c) subsections (5)-(11) apply to an inquiry into any such objection as if the objection were a suggestion or objection made under subsection (2).

The effect of this amendment is to put in place a process for open and public inquiry. The model that is drawn upon for the purpose of ensuring an open and public inquiry is that which exists with the Federal redistribution, with which all members are familiar. With those comments I commend the amendment to the Committee.

The Hon. M. R. EGAN (Treasurer, Minister for Energy, Minister for State and Regional Development, Minister Assisting the Premier, and Vice-President of the Executive Council) [9.52 p.m.]: To show how fair, reasonable and democratic the Government is it will support this amendment. However, to make the amendment more effective and to ensure that there has to be a redistribution Government amendment No. 1 will be moved.

Opposition amendment 5 as it relates to item [3] agreed to.

The Hon. M. R. EGAN (Treasurer, Minister for Energy, Minister for State and Regional Development, Minister Assisting the Premier, and Vice-President of the Executive Council) [9.53 p.m.]: I move Government amendment as circulated:

Insert after proposed section 14(14) of the Parliamentary Electorates and Elections Act 1912:

(15) As soon as is practicable after the commissioners have concluded their inquiries into any objection lodged under subsection (14), they must determine the names and boundaries of electoral districts.

This amendment will ensure that a redistribution actually takes place. The amendment moved by the Leader of the Opposition and which the Committee has accepted sets out procedures for objections and inquiries but does not provide for a final determination. The Government believes that this amendment will correct that problem by providing that the commissioners must finally determine the names and boundaries of electoral districts.

Amendment agreed to.

The Hon. J. P. HANNAFORD (Leader of the Opposition) [9.54 p.m.]: I move Opposition amendment 6 as circulated as it relates to proposed item [4]:

No. 6 Page 3. Insert after line 6 (or after any amendments made by Amendment No 5):

Schedule 2 Amendment of Parliamentary Electorates and Elections Act 1912

Part 2 Amendments relating to redistributions and electoral fairness

[4] Section 6 Appointment of commissioners for redistribution of seats

Insert after section 6(3):

(4) When a distribution of electoral districts becomes necessary under the Constitution Act 1902 as a result of the enactment of the Constitution Amendment Act 1997, the appointment of Electoral Districts Commissioners to carry out the distribution must be made within one month after the date of assent to that Act.

(5) In any other case, the appointment of Electoral Districts Commissioners to carry out a distribution must occur within 2 years after the day that the distribution first becomes necessary under the Constitution Act 1902.

I would like the two paragraphs of this amendment to be dealt with seriatim. During debate on a previous amendment, which fortunately was not proceeded with, the Hon. Elisabeth Kirkby emphasised the need for these amendments. Under section 28A(1) of the Constitution Act a redistribution in New South Wales became necessary approximately 11 months prior to the 1995 election, that is, electoral districts were malapportioned and a redistribution was required forthwith.

After the March 1995 election a further redistribution was triggered under section 27(1)(c) which also required that a redistribution be undertaken forthwith. One might have been forgiven for thinking that the Macquarie Dictionary was correct when it said that forthwith means "immediately", "at once" and "without delay". However, the Labor Party believes that forthwith means whenever they get around to doing it in accordance with the rules of the Labor Party. The law that required an electoral redistribution two years ago has not been enforced because under either section 28A or section 27 it is mandatory that before a redistribution can occur redistribution commissioners be appointed. Commissioners are
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appointed under section 6 of the Parliamentary Electorates and Elections Act. Section 6(1) of that Act provides:

When any redistribution of electoral districts becomes necessary under the provisions of the Constitution Act the Governor shall, by commission under the great seal, appoint three persons to be commissioners for the purposes of this part and to be called the Electoral Districts Commissioners to carry out the distribution.

Unfortunately the word "forthwith" is not present in that section. Therefore the Governor must act upon the advice of the Executive Council, that is, whatever advice he gets from the Premier. Available legal advice suggests that it is arguable whether legal proceedings can ever be taken against the Governor to force him to appoint commissioners. Had a legal success been likely, no doubt such proceedings would have been taken before now. All commentators in New South Wales acknowledge that the Constitution Act of New South Wales is currently being flouted by this Government. There is still no legal requirement for the Government to appoint the commissioners. No doubt commonsense will prevail at some stage and the Government will advise the Governor on the appointment of the commissioners. The redistribution does not need to be completed until the date upon which the writs are issued. That is the latest practical time, although it may create administrative difficulties. If a distortion can be achieved the Labor Party will seek to maximise it.

Practically, that means that the minimum time in which a redistribution could be expected is about four months. Therefore, if the Government wanted to manipulate the redistribution system it is not inconceivable that it would wait until August or September of 1998 to advise the Governor on the appointment of the commissioners; and once the commissioners were appointed they would act in accordance with the Constitution Act and proceed with the redistribution forthwith. The Committee has already heard that the Government will reject an amendment moved by the Hon. Elisabeth Kirkby, which simply states that when a redistribution is necessary in a normal four-year term the commissioners would be appointed within two years of the election. That provision is identical to proposed section 6(5).

Once the commissioners have been appointed, legally enforceable action could be taken to ensure that the redistribution is completed forthwith, that is, expeditiously. One assumes that that would occur within the ensuing 12 months. As a consequence, the community of New South Wales would have the redistribution maps one year out from the election. That proposal is unexceptional. My amendment to insert section 6(5) is all the more important because the Labor Government is not even prepared to accept the obvious fairness of the Hon. Elisabeth Kirkby’s amendment and my second amendment.

The amendment to insert section 6(4) in item [4] is predicated on the basis that the Government could not be trusted to appoint the electoral commissioners over the past 2½ years. If the Government cannot be trusted to accept the concept that at least the commissioners should be appointed within two years of an election, why should we accept the Government’s integrity to appoint electoral commissioners for the purposes of the redistribution that must occur between the passage of this legislation and the election in March 1999? My amendment would send the message that we want the Parliament to tell the Governor that he must appoint the commissioners within the next month. If the commissioners are appointed within the next month the electoral redistribution can proceed forthwith in a legally enforceable way.

I have heard it said in the corridors that the Government will give an undertaking to the Parliament that it will appoint the commissioners within the next 21 days. We know that other undertakings given by the Government over the past 2½ years lasted only as long as it was expedient to retain them or until another problem arose which made it expedient for the Government to abandon them. If a factional problem arises within the Labor Party over the next three weeks, and it is convenient that the Government does not start the redistribution now -

The Hon. E. M. Obeid: Doesn’t the Liberal Party have factional problems?

The Hon. J. P. HANNAFORD: I am pleased that the Hon. E. M. Obeid acknowledges that Labor is concerned about that. If it becomes convenient for the Government to invoke its rules to avoid the usual redistributions and preselections, and if the only convenient way for the Labor Party to appoint its candidates to the allocated seats is to have the redistribution finished in about December of next year or January 1999, members opposite should continue to sit on their hands, as they have done for the past 2½ years. When it is convenient, in about June, July or August of next year, the Government will appoint the commissioners solely to resolve its internal squabbles.

The Government will not give a damn about the public or the electorate; it will make decisions based on its internal political needs. New South
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Wales has been entitled to a redistribution since 11 months before the March 1995 election and the day after it. Effectively, for the past 2½ years the Constitution Act has been breached in New South Wales. The Constitution Act has been flouted by this Government. If the Government is prepared to ignore the Constitution Act for political reasons, are people prepared to accept the Government’s word on what it will do about the appointment of commissioners although they know that they cannot legally force the Government to observe the law?

Tonight honourable members have an opportunity to ensure that the law is enforced. They have one opportunity to accept proposed section 6(4) as set out in my amendment and to impose a legal obligation on the Government to appoint the commissioners. If they do not impose a legal obligation on the Government, they will not have another opportunity to ensure that the Constitution Act is observed in New South Wales until it becomes politically and factionally an imperative of the Government. I strongly ask honourable members to support proposed section 6(4), and I ask for the items of the amendment to be dealt with seriatim to achieve that. The provisions in proposed section 6(5) are similar to those in the Hon. Elisabeth Kirkby’s amendment, although the honourable member’s amendment goes slightly further. As I understand the rulings that will be adopted if my amendment is defeated, I will support the Hon. Elisabeth Kirkby’s amendment as it goes one step further.

It may be argued that the honourable member’s amendment is a desirable additional safeguard. It would mean not only that the commissioners would be appointed within two years of the date of the election; if another trigger arose which generated a redistribution, such as a malapportionment, at least the commissioners would be appointed within six months of that malapportionment. If this Government were re-elected in March 1999 a malapportionment could arise within two years. In that case we would want the commissioners to be appointed within six months to get the redistribution under way. I strongly urge honourable members to support my amendment. However, if honourable members are of the view that we should go the extra step proposed by the Hon. Elisabeth Kirkby in her amendment, they should defeat my amendment and support the honourable member’s amendment.

The Hon. M. R. EGAN (Treasurer, Minister for Energy, Minister for State and Regional Development, Minister Assisting the Premier, and Vice-President of the Executive Council) [10.09 p.m.]: It is true that the Government had intended to give a commitment to appoint the electoral commissioners within one month of assent of this bill. I take exception to the remarks of the Leader of the Opposition about the Government’s bona fides in this matter. I challenge members opposite to cite one example -

The Hon. J. F. Ryan: To accept a promise made by you?

The Hon. M. R. EGAN: Be silent for a moment, silly man. I would charge any member of the Opposition or any member of this Parliament to cite one example where the Government has given a commitment during a second reading speech on legislation in the Chamber or during Committee debate that it would do a certain thing following the passage of the legislation and that commitment has not been kept. But that is academic. The Government will accept proposed section 6(4), which will require the appointment of the Electoral Districts Commissioners within one month. If the Government’s bona fides were in any way suspect, it would not be accepting that amendment. I take exception to the remarks of the Leader of the Opposition. Certainly when he was a Minister of the Crown I accepted any commitment he gave during a second reading speech or during debate in Committee, and I should have thought he would have done the same thing. To establish its bona fides the Government will accept that part of his amendment.

The second part of the amendment, which proposes a new section 6(5) the Government will oppose because I am advised that it is also potentially unconstitutional. Section 27 of the legislation as it currently stands requires certain redistributions to take place forthwith. By placing certain time periods upon the commissioners this amendment may be seen as impliedly repealing or amending the term "forthwith" in the Constitution Act. As section 27 is entrenched by section 7B of the Constitution Act, it cannot be expressly or impliedly amended or repealed without a referendum. I suggest that the amendments relating to the insertion of proposed subsections (4) and (5) be put seriatim.

The Hon. D. F. MOPPETT [10.12 p.m.]: I wish to address a few brief remarks to part of the amendment proposed by the Leader of the Opposition and certainly the amendment foreshadowed by the Hon. Elisabeth Kirkby. The honourable member spoke about a perfect world in which a requirement would be made that a redistribution be undertaken or the appointment of commissioners take place within two years; in effect mid-term. Honourable members may recall that I
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vehemently opposed the fixed term parliament provision which, of course, history will record was put to referendum and is now the law and part of the Constitution of New South Wales. One of the strange things it brought in was the potential for governments to change - the so-called backward change arrangements.

What the Committee is now considering reminds me of the pious frauds that have been introduced in this debate about the reasons for this legislative amendment to the Constitution Act. I put forward this scenario to the Committee: what if this redistribution had got under way immediately after the last election but this Government went ahead wheedling away at the numbers, or there was a change of government during the four years and suddenly an amendment to the Constitution Act was introduced and the size of the House was changed? There would have been one redistribution and another one would have been required. This is the total confusion that can occur when governments are prepared to alter the number of seats in the Legislative Assembly simply to serve their own purposes. Our efforts to try to bring back some sanity by setting a deadline on the appointment of commissioners ignores the fact that the circumstances which pertain to that redistribution may change quite dramatically in the interim period.

Reverend the Hon. F. J. NILE [10.14 p.m.]: The Christian Democratic Party supports Opposition amendment 6 as it pertains to proposed section 6(4), that distribution must be made within one month after the date of assent to the Constitution Amendment Act. We give our support to the amendment of the Hon. Elisabeth Kirkby, which is more to the point in achieving our aim. We will be voting against the Opposition’s second proposition.

Opposition amendment 6 as it relates to the insertion of proposed section 6(4) agreed to.

Opposition amendment 6 as it relates to the insertion of proposed section 6(5) negatived.

Consideration of postponed Australian Democrat amendment 4 as it relates to item [2] resumed.

The Hon. ELISABETH KIRKBY [10.15 p.m.]: I move Australian Democrat amendment 4 as it relates to proposed item [2]:

[2] Section 6(4)

Insert after section 6(3):

(4) The appointment of commissioners under this section must occur no more than 2 years after the date of return of the writs for choosing the Legislative Assembly that exists at the time the distribution becomes necessary under the provisions of the Constitution Act 1902. However, if that 2 year period has passed when the distribution becomes necessary, then the commissioners must be appointed within 6 months after the day that the distribution becomes necessary.

Until quite late last night I had lengthy consultation with the Government’s advisers about this amendment. It was pointed out to me that a body of legal opinion believed that potentially this amendment is unconstitutional. They also explained that they would not be able to support it because they had legal advice that it would breach a section of the Constitution Act. That legal advice has not been made available to me and, indeed, one of the Government advisers said that she would get further advice so that I might be able to have a look at it today. To date that advice has not been given to me. As has been pointed out by the Leader of the Opposition, the understanding is that the unconstitutionality relates to section 27 and to the use of the word "forthwith". Section 27 requires certain redistribution to take place forthwith. It is argued that by placing certain time periods upon the appointment of commissioners, this amendment may be seen as impliedly repealing or amending the term "forthwith" in the Constitution Act. As section 27 is entrenched by section 7B of the Constitution Act, it cannot be expressly or impliedly amended or repealed without a referendum.

During our discussions we went over these problems in some detail. As a member of this Parliament, and I certainly believe that a majority of members would have the same difficulty that I have, it is very difficult when reading the Constitution Act to discover those provisions that are entrenched and the provisions that are not entrenched. I requested a list of the sections that are entrenched and those that are not. However, even if this is an entrenched provision, there is no reason it cannot be changed by way of referendum. I believe that that would be the proper way to go. It would not be impossible, so far as the Government is concerned. When this legislation is passed it will be imperative to carry out a redistribution because the composition of the Legislative Assembly is to be reduced from 99 seats to 93 seats. Inevitably that means a redistribution. Therefore, the next redistribution would not need to be held until 2003. If this provision were entrenched it would then be possible to conduct a referendum in conjunction with the 1999 State election, at no great expense to the taxpayers, in order to change it.

That would ensure that any future coalition or Labor Party government would be constrained to
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hold a redistribution at a defined time, not at the whim of the Premier or the Executive of the day. That provision would totally eliminate the situation that we have been in for the past two years. As has been pointed out, there should have been a redistribution prior to the 1995 election. For reasons best known to the Government that procedure was not carried out. It is now essential to have a redistribution. It may well be that by 2003 there will be a need for another redistribution because of shifts in population. Those shifts will probably occur in the inner-city areas where people are now residing in areas that previously had a low residential population. Tonight we are not in a position to debate at length whether the use of the word "forthwith" could be tested in the courts or whether the suggested amendment is unconstitutional. These issues could be simply and easily solved by holding a referendum in conjunction with the 1999 election.

I have been handed a note by the Minister’s adviser stating that proposed section 6(4), as I moved it, is inconsistent with proposed section 6(4) as moved by the Leader of the Opposition. In his amendment the Leader of the Opposition has provided one month for a specific redistribution, whereas I gave a two-year period; therefore it is inconsistent. I ask the Chairman to clarify this for all members of the Committee. My understanding is that the amendment moved by the Leader of the Opposition did not pass, otherwise I would not have been able to move my amendment. My amendment would have been automatically ruled out of order, as the amendment of the Leader of the Opposition would have taken precedence. As the hour is late, a certain amount of confusion has occurred, which needs to be put right.

CHAIRMAN: Order! I will reserve my decision.

Reverend the Hon. F. J. NILE [10.22 p.m.]: The Hon. Elisabeth Kirkby raised the possibility of a conflict with the Constitution. There is no conflict with the Constitution; her amendment simply says that the appointment must occur no more than two years after the date of return of writs. If she had said that it cannot occur until two years, that would be different, because it would put some restraint on the Governor. However, if a redistribution does not occur forthwith, after two years, then this machinery would be put into effect. It does not clash with the Constitution.

The Hon. M. R. EGAN (Treasurer, Minister for Energy, Minister for State and Regional Development, Minister Assisting the Premier, and Vice-President of the Executive Council) [10.23 p.m.]: The Government opposes this amendment for the reason I gave earlier and to which the Hon. Elisabeth Kirkby alluded. I apologise that the advice from the Crown Solicitor’s Office was not forwarded to her. I have a copy of it, but I will not pursue the point; I know when I do not have the numbers.

The Hon. J. P. HANNAFORD (Leader of the Opposition) [10.24 p.m.]: The issue raised by the Hon. Elisabeth Kirkby in regard to proposed new section 6(4), which was carried a moment ago, relates to a redistribution that arises from the carriage of the bill which creates 93 seats instead of 99. Subsection (5), to which the Hon. Elisabeth Kirkby is now referring, relates to redistributions which will arise in subsequent years, that is, post-1999. Therefore, there is no conflict.

The Hon. M. R. EGAN (Treasurer, Minister for Energy, Minister for State and Regional Development, Minister Assisting the Premier, and Vice-President of the Executive Council) [10.25 p.m.]: The amendment of the Leader of the Opposition which was defeated contained the words "in any other case". The Committee has agreed to proposed section 6(4) moved by the Leader of the Opposition. The Hon. Elisabeth Kirkby’s proposed section 6(4) is equivalent to section 6(5) in the amendment moved by the Leader of the Opposition. Perhaps it should be renumbered and should be preceded by the words "in any other case".

The Hon. J. P. HANNAFORD (Leader of the Opposition) [10.26 p.m.]: I seek to amend the amendment by the insertion of the words "In any other case". That would overcome the problems to which honourable members are now referring. The paragraphs would then be renumbered accordingly. I move:

That the amendment be amended by deleting the word "The" and inserting in lieu thereof the words "In any other case the".

Amendment of amendment agreed to.

Australian Democrats amendment 4 as it relates to proposed item [2] as amended agreed to.

The Hon. J. P. HANNAFORD (Leader of the Opposition) [10.28 p.m.]: I move Opposition amendment 6 as it relates to proposed items [5], [6] and [7].

[5] Section 17A Criteria for distributions

Insert after section 17A(1)(a):

(a1) subject to paragraph (a), have regard to such matters (such as recent voting

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patterns) as are relevant to determining a fair distribution to prospective groups of candidates and, as far as practicable, endeavour to ensure that the distribution is such that, at an election held at the relevant future time, candidates of a particular group attracting more than 50 per cent of the popular vote (determined by aggregating votes cast throughout the State and allocating preferences to the necessary extent) will be elected in sufficient numbers to enable them to form a government, and

[6] Section 17A(1)(b)

Omit "paragraph (a)". Insert instead "paragraphs (a) and (a1)".

[7] Section 17A(2)

Omit "subsection (1)(a)". Insert instead "subsection (1)".

These provisions, which will introduce into the New South Wales electoral system the concept of a fair distribution, will ensure that fairness applies in a redistribution. Under proposed new section 17A(1)(a1) if a party is likely to get 50 per cent of the vote, or 50 per cent plus one, that party should form government. That principle has been adopted throughout the country. If a party gets 50 per cent, plus one vote, it is reasonable to expect that that party has won. It is not usual for a team anywhere that gets half the votes, the tries or the awards not to end up being the winning team. However, that is not what occurs in New South Wales elections. In the last New South Wales election the coalition got approximately 52 per cent of the vote, but it did not win the election. At the last New South Wales election the Labor Party got approximately 48 per cent of the vote and it was able to form government. We know from material relating to the proposed redistribution that has been leaked from the ALP that it expects to receive only 47 per cent of the vote at the 1999 election.

If the coalition wanted to be able to form government in 1999, under the program of the Labor Party it would have to obtain about 53 per cent, possibly 54 per cent, of the vote. Unfairness should not be retained in any system. One should expect to form government when one gets 50 per cent of the vote, plus one vote. These amendments will enable parties, when considering a redistribution, to argue that the commissioners should have regard to the impact of other arguments advocated by any other party. They should be able to say to the commissioners, "If you have regard to the arguments put forward by party X and you have regard to recent voting patterns, the likely political impact of that will be that party X will be elected with 45 per cent of the vote." These amendments will enable the commissioners to hear arguments from all parties as to whether or not the redistribution advocated by party X is likely to result in an unfair redistribution. They will not require the electoral commissioners to disregard the considerations that exist in section 17A(1)(b) of the Act, which states:

. . . have regard to community interests within the electoral district including the economic, social and regional interests, the means of communication and travel within the electoral district, the physical features in the area of the electoral district, the mountains and other natural boundaries and the boundaries of the existing electoral districts.

Those considerations still apply to each electorate. The commissioners do not have to say, "You must determine what the voting pattern will be in each electoral district." However, after having determined the configuration of the electoral districts under section 17A(1)(b), commissioners must have regard, under proposed new paragraph (a1), to the overall impact of that section on the party with 50 per cent of the vote, plus one vote, and determine whether that party is likely to be able to form government. If the answer to the second question is no, after all the evidence has been heard, the parties will be able to advocate a change of boundaries and the commissioners will have to heed those arguments. If the Government is not prepared to accept these amendments, it demonstrates clearly that the Labor Party is prepared to embrace an electoral rort.

The Labor Party is prepared to accept that a party that gets less than 50 per cent of the vote is able to form government in New South Wales. I do not regard that as a fair electoral system and no-one in the community would regard that as a fair principle. If a party gets 50 per cent of the vote it should be able form government. There are no guarantees and no scientific measures in a redistribution. Proposed paragraph (1)(a) is an interesting comparison. The commissioners are asked to have regard to demographic trends within the State and, as far as practicable, to endeavour to ensure on the basis of those trends that at the relevant future time the number of electors enrolled in each electoral district will be equal. There is no scientific measure; the legislation requires the electoral commissioners to make a value judgment in relation to each electorate.

Under existing law a value judgment has to be made about the demographic trends in each electorate. The Opposition does not want a value judgment to be made about the voting outcome in each electorate; it wants parties to be given an opportunity to refer to the adverse impact that a redistribution is likely to have. Parties may or may not be successful. More likely than not, knowing the
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way in which the commissioners work, they would have already formed their views and they would say, "We do not agree with you." But these amendments will enable parties to articulate their arguments before independent commissioners. The Government said, "We do not even want you to have the right to articulate the principle of electoral fairness." Those might be the principles of the Labor Party, but they are not acceptable principles within our democracy. I hope that when members on the crossbenches consider this issue they will take the view that they are not acceptable principles in our system of democracy. The Independent members should take the view that, at the very least, they should be allowed to state to the electoral commissioners that the potential outcome of the proposed redistribution will be electoral unfairness. I commend the amendments to the Committee.

The Hon. M. R. EGAN (Treasurer, Minister for Energy, Minister for State and Regional Development, Minister Assisting the Premier, and Vice-President of the Executive Council) [10.40 p.m.]: The Government opposes the three items proposed by the Leader of the Opposition. The amendment seeks to impose upon electoral commissioners a requirement to contrive some sort of political result on the basis of assumptions that may or may not be correct. It is simply impossible, particularly in this day and age of large votes for minor parties - the Democrats and others - and large votes for Independent candidates to assess what sort of uniform swings may be necessary to result in government changing hands. The lesson of the past 15 years has been that often the sort of uniform pendulum that Malcolm Mackerras devised in the 1960s no longer necessarily works.

Earlier today the Hon. D. F. Moppett talked about the votes Jack Renshaw received as the member for Castlereagh. Who was to know, when those votes were aggregated, whether the people who voted for Jack Renshaw for 40 years in Castlereagh were voting for Jack Renshaw because he was the Australian Labor Party candidate or because he was Jack Renshaw whom they wanted as their local member. That scenario could apply to virtually every electorate in the country. Under our electoral system of single-member constituencies and representative democracy no-one has any way of knowing whether the person who marks the ballot paper is voting for a particular party to form government, or simply for a particular candidate. If the Opposition wants a system that ensures at all times that a government has a plurality or a majority of votes, something much more fundamental than this proposal will have to be put together to amend our Constitution. Single-member constituencies and representative democracy would have to be done away with.

We would end up with a system similar to that which exists in the United States of America, where an Executive Government is elected and the Legislature is separate. But even the United States of America cannot get it precise. The majority of delegates to the Electoral College won by John F. Kennedy was far bigger than the proportion of votes he won. It would only work if we had direct election of a government. We have an entirely different system, the Westminster system, under which the party that has the majority of members in the lower House forms the Government. It seems to me that a system that has a fair electoral redistribution system - in other words, the boundaries are determined by independent commissioners; there is a requirement for one vote, one value; and there is also a requirement that forces redistribution if a malapportionment occurs - would be as close as one could possibly come to ensuring that the party or the group of parties that ends up in government is the party or group of parties that has majority support within the community.

That is just as likely to happen under this system as it is under the system the Leader of the Opposition would impose upon us: electoral commissioners making all sorts of unbelievable assumptions about how preferences might go, about whether people were voting for Mary or Joe Blow rather than the Liberal Party or the Labor Party, and what will happen down the track not just in relation to population changes but whether electorates will change demographically, for example a new residential subdivision might change the demographic characteristics of the electorate. All sorts of considerations have to be taken into account. Surely it means something that South Australia is the only comparable jurisdiction anywhere in the world, to my knowledge, that has tried to implement this sort of provision.

In some instances the results might be fair, but was it a fair result in 1994 in South Australia when the Brown Government won office with about 60 per cent of the vote, but ended up with 78 per cent of the seats? Of course that was not a fair result. It certainly was not fair to the Opposition, and it certainly was not fair to the minor parties in South Australia. Members of the Opposition who have thought about this proposition will realise that it is a nonsense. If we want to ensure that, so far as practicable, the party or coalition of parties that form government are those with the majority of support we have to ensure that we have one vote, one value and that independent commissioners set
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electoral boundaries and that will, more often than not, give us the fairest result. If we try to contrive some sort of outcome based on some other criteria, we will get it wrong, as happened in South Australia where this so-called fairness provision exists.

The Hon. ELISABETH KIRKBY [10.46 p.m.]: The Australian Democrats cannot support this amendment. I have taken a great deal of time to get information so that I can put to honourable members very clearly why I cannot support it. About two days ago, particularly when I read the newspaper article by Antony Green in the Sydney Morning Herald about the need for a fairness provision, I was very attracted to the South Australia legislation. However, when I was talking to Antony Green yesterday, even he conceded that it was a very restrictive provision. After that I also discussed the matter with my colleagues in South Australia. I spoke to our Federal campaign manager who is resident in South Australia, the State campaign manager and my counterpart, my colleague the Hon. Mike Elliott, who is the leader of the Democrats in South Australia.

I obtained some background material as to why this provision was first introduced into the South Australian Parliament. Apparently it was introduced in 1989 following the election. There was a public outcry because a party with 52 per cent of the votes got only 48 per cent of the seats. The outcry was so enormous that the Premier of the day decided he had better fix up the State’s elections and electorates legislation, so he introduced this so-called fair provision, which was supported by both the Opposition and the Government. Although the Democrats had two members in the Legislative Council at that time, the Hon. Ian Gilfillan and the Hon. Mike Elliott, their vote was totally irrelevant. They could do nothing to alter the way the legislation was to be amended.

Reverend the Hon. F. J. Nile: Did they vote against it?

The Hon. ELISABETH KIRKBY: Yes, indeed, they did vote against it. They have been fighting this provision ever since for the simple reason - and this was admitted to me yesterday by the psephologist Antony Green - that it entrenches the two-party system. That may be what the Opposition wants and, in many cases, what the Government wants, but that is not what the Australian Democrats want. As I said to the media, the resignation of our leader, the Hon. Cheryl Kernot, and her joining the Australian Labor Party - which I regard as the greatest tragedy that has happened to the Australian Democrats - has entrenched the two-party system. That is not our policy. Our policy has always been to be a strong third party, to be a party of the middle ground and to be even-handed to either the Labor Party or the Liberal-National Party coalition.

The Hon. J. P. Hannaford: You used to keep them honest.

The Hon. ELISABETH KIRKBY: We still keep them honest. I am very annoyed by some of the remarks that have been made during this debate. I am particularly annoyed at suggestions by the Hon. J. H. Jobling that when I discussed the proposal for electoral changes in New South Wales with Federal members of my party I must have discussed it with Senator Kernot. I did not. I discussed it with our Federal campaign director. That is the protocol of our party. I relied on his advice and the advice of the State campaign director. It was also suggested by the Hon. J. H. Jobling that the Australian Democrats are somehow the fourth faction of the Australian Labor Party. If that were true, why did Senator Kernot consider it necessary to resign from our party and join the Labor Party? Our voting record shows that we vote far more often with the government of the day for the very reason that it is the government.

The Australian Democrats are not the lackeys of either the Government or the Opposition. We vote on legislation according to its merits. A few moments ago the Leader of the Government said that this amendment could only work in a fair manner if we had a system of multimember electorates. That is true. That was admitted to me only last night by the ABC psephologist Antony Green. He also admitted that the South Australian election result had thrown that State’s legislation into limbo because it would no longer be possible for the South Australian electoral commissioners to operate under the legislation as it stands with the so-called fairness clause. Certainly that legislation will have to be amended before the next election.

I firmly believe that we must move away from the two-party preferred system enjoyed by people like Malcolm Mackerras and Antony Green and their so-called pendulum, because that pendulum is immaterial. There are now too many high profile Independents and strong minor parties such as the Shooters Party, the Greens and the Christian Democratic Party in New South Wales. We cannot possibly rely on a so-called automatic exchange, a drift from one side of politics to the other on this pendulum. Under the amendment that has been proposed by the Leader of the Opposition, the electoral preference on a two-party preferred basis of 10 per cent to 15 per cent of the electorate will not be taken into account.

If the amendment is successful as many as 6,000 voters in some electorates will be ignored
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when the commissioners redraw the boundaries. Those voters will probably be supporters of the Democrats, the Greens, the Shooters Party, the Christian Democrats and other Independents. The amendment will disenfranchise those voters from participating in the deliberations to redraw the boundaries. So it is not a defensible amendment. It is the Australian Democrats’ policy to move to a system of multimember electorates in Australia. In discussion with my colleagues last night I was informed that they had been in consultation with the South Australian electoral commissioner and had been talking about the possibility of South Australia being divided into nine regions with five members representing each region. When that proposition is first put up it may not succeed but at least they are following our policy. The Australian Democrats want to remain a growing third force in Australian politics and not be tied to the apron strings of either the Opposition or the Government.

In all of my work on this legislation over the past few days I have made my position very clear. I gained as much information as I could from the Minister’s advisers and discussed the matter with the Leader of the Opposition. But I do not believe this amendment will create a situation of fairness. I am particularly upset because of its potential to entrench the two-party preferred system. The electoral commissioner, when taking into account the so-called political implications of his boundaries, cannot look into a crystal ball and decide which Independents or minor parties might go into coalition with either of the major parties. It will be impossible for the electoral commissioner to do that, particularly when he is dealing with the Democrats, whose policy since their establishment has been never to go into coalition.

That is one of the reasons why we have little or nil lower House representation. We consistently outpoll the National Party but it gains lower House seats because it is in coalition. In South Australia the Australian Democrats got over 16 per cent of the primary vote. In many electorates the Democrats outpolled the Liberals on the primary vote and in other electorates the Democrats outpolled the Labor Party on the primary vote. Four seats are still in contention and we have not given up hope that one of those lower House seats will go to a Democrat. I am not in a position today to support the amendment moved by the Leader of the Opposition because I do not believe that it delivers in practice the fairness that he believes it delivers in theory. After the results of the election in South Australia we know that fairness is unlikely. The South Australian Act makes provision for a party that receives over 50 per cent of the vote. At the next election, State or Federal, there is probably no political party in Australia that will get over 50 per cent of the vote. For those reasons I cannot support the amendment.

Reverend the Hon. F. J. NILE [11.00 p.m.]: The Committee has to ask whether it is fair that a political party should be able to win office on 46 per cent of the vote. Honourable members need to ask themselves whether there may be some instability in the State if the majority of people feel that they are disfranchised by an election result and there is a lack of co-operation between the community and an elected government. The amendment is not restrictive. Proposed new section 17A(1)(a1) refers to "such matters", "determining a fair distribution" and "as far as practicable". The Hon. Elisabeth Kirkby has raised concerns that it may be deemed not practicable to ensure fair distribution. The words "as far as practicable" are included in the provision, and one would trust the commissioners to have the experience and wisdom to determine how far they can go to ensure fairness.

The Hon. Elisabeth Kirkby appeared to miss the point that the provision relates to 50 per cent of the popular vote including preferences of the minor parties. It does not relate to 50 per cent of the primary vote of the major parties but "50 per cent of the popular vote (determined by aggregating votes cast throughout the State and allocating preferences to the necessary extent)". The minor parties and other candidates are considered. Their anticipated vote - which would be estimated following surveys and so on - would be added to the major parties. That process presents no great difficulty. The commissioners would be experienced and wise enough to take those matters into account in determining how far they can ensure fair distribution. The commissioners may not succeed, they are required to endeavour "as far as practicable".

Question - That Opposition amendment 6 as it relates to proposed items [5], [6] and [7].

The Committee divided.

Mr Bull Rev. Nile
Mrs Forsythe Mr Ryan
Mr Gallacher Mr Samios
Miss Gardiner Mrs Sham-Ho
Dr Goldsmith Mr Rowland Smith
Mr Hannaford Mr Willis
Mr Kersten Tellers,
Mr Lynn Mr Jobling
Mrs Nile Mr Moppett
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Noes, 20

Dr Burgmann Mr Macdonald
Ms Burnswoods Mr Obeid
Mr Cohen Mr Primrose
Mr Corbett Ms Saffin
Mr Dyer Mr Shaw
Mr Egan Mr Tingle
Mr Johnson Mr Vaughan
Mr Jones
Mr Kaldis Tellers,
Mr Kelly Mrs Isaksen
Ms Kirkby Mr Manson

Mrs Chadwick Mrs Arena
Dr Pezzutti Mrs Symonds

Question so resolved in the negative.

Opposition amendment 6 as it relates to proposed items [5], [6] and [7] negatived.

The Hon. J. P. HANNAFORD (Leader of the Opposition) [11.09 p.m.]: I move Opposition amendment 7 as circulated:

No. 7 Page 3. Insert after line 6 (or after any amendments made by Amendment No 5):

Schedule 2 Amendment of Parliamentary Electorates and Elections Act 1912

Part 2 Amendments relating to the avoidance of electoral bias in redistributions

[4] Section 17A Criteria for distributions

Insert after section 17A(1)(b):

, and

(c) subject to paragraph (a), have regard, as far as practicable, to the desirability of the new electoral districts producing a result that does not show bias towards a particular party or a particular group of candidates.

[5] Section 17A(3)

Insert after section 17A(2):

(3) In this section, a reference to a group of candidates includes not only candidates endorsed by the same party but also candidates whose political stance is such that there is reason to believe that they would, if elected in sufficient numbers, be prepared to act in concert to form or support a government.

The Australian Labor Party and a number of crossbenchers have clearly indicated that they do not support the principle that a party that gets 50 per cent of the vote ought to have a chance of forming government. If that is not the principle that they adhere to, I put it to the Committee that members should at least be able to support the principle that a redistribution should not show bias towards a particular party or a group of parties. The whole principle of electoral fairness is to ensure that there should be no apparent bias. The purpose of the amendment is to allow any person who has an interest in the redistribution to argue that what is proposed might lead to a bias towards a particular party.

It does not mean that there must be a bias or a tendency towards bias. It would enable parties at least to argue that the result might show a bias and therefore to advocate to the commissioners that that bias should be corrected. I would have thought that crossbenchers support the principle of fairness. In fact the Hon. Elisabeth Kirkby indicated that she supports the concept of fairness. This proposal promotes a form of fairness, and that is the argument against bias. I would have thought that crossbenchers would be opposed to any bias being exhibited within a redistribution and would support the concept that the advocates before the commissioners should be able to argue about a tendency to generate bias.

Bias is a well-known term. I do not need to expand upon it. The concept is well known to all of us and from time to time all of us have argued in various forums about the concept of bias being present. One would have thought that, in the concept of fairness, parties before the electoral commissioner should be able to say that the proposals that have been put by organisation X have a tendency to lead to bias and to give the reasons for the belief that there is a bias. It does not mean that the arguments have to be accepted, but at least the advocates in a hearing before the electoral commissioners should be able to adduce information which supports their argument that a bias could be present if the propositions of either or of any party were advocated. I commend the amendment to the Committee.

The Hon. M. R. EGAN (Treasurer, Minister for Energy, Minister for State and Regional Development, Minister Assisting the Premier, and Vice-President of the Executive Council) [11.14 p.m.]: The Government opposes Opposition amendment 7, and will also oppose Opposition amendment 8, because they both are simply attempts to do just what the previous Opposition amendment attempted to do but in disguise. It is presumptuous in that it assumes a fixed voting pattern in certain
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areas of the State. It presumes that the three electoral commissioners have the wisdom - it would be the wisdom of Solomon - to predict what no-one else can predict: not only how voters are going to cast their vote in the future but also how preferences are going to be distributed.

No-one can predict that - absolutely no-one. What would happen if they made certain assumptions which turned out to be wrong? The likelihood is that in trying to prevent a bias there would be even more possibility that the contrived results achieved would produce an even bigger bias than that which the commissioners purportedly sought to overcome. Producing a political result from a redistribution - and that is what this is all about, trying to achieve a political result - is a function which is quite foreign to our current electoral legislation. It would completely politicise the process of drafting electoral boundaries.

As I mentioned before, our legislation entrenches one vote, one value and prevents the sort of rorts which occurred under the Askin Government and - I have to admit - some other previous governments. The existing criteria of community of interest, geographic boundaries, modes of transport and demographic trends serve the State and voters well, as of course does the fundamental principle of one vote, one value. Another part of the amendment refers to a group of candidates including not only candidates endorsed by the same party but also candidates whose political stance is such that there is reason to believe that if they were elected in sufficient numbers they would be prepared to act in concert to form or support a government. More than that, how does one work out what Tony Windsor, Clover Moore, John Hatton and Peter Macdonald are going to do? They entered into a charter of reform with both the Government and the Opposition after the 1991 elections. No-one could have predicted which side they would have supported, because it depended on things which were outside their control. So before the election even takes place, before you even know whether Peter Macdonald is going to contest Manly, whether Clover Moore is going to contest Bligh and whether Tony Windsor is going to contest Tamworth -

The Hon. Elisabeth Kirkby: Whether he is going to contest it for the National Party.

The Hon. M. R. EGAN: Precisely. Before we know whether they are going to be Independent candidates, somehow or other the three electoral commissioners have to make the assumption not only that they will stand but that they will get elected and that when they do get elected they will support one party as a government rather than some other party as a government. That simply cannot be predicted. Putting that sort of requirement into legislation would result in the most absurd outcomes imaginable. So the Government opposes the amendment.

The Hon. ELISABETH KIRKBY [11.18 p.m.]: I support what the Leader of the Government has said but put another point of view. Again, this is a provision which is based upon South Australian legislation. But it would not work in New South Wales because we have an optional preferential system of voting, and this would not allow sufficiently relevant calculations to be made. South Australia does not have optional preferential voting. So I do not see how we can expect something that may very well work in South Australia, because of its method of voting, to work when transferred to New South Wales. As the Leader of the Government has just said, it is predicated upon being able to categorise Independents and small parties as belonging to one side or another of politics. That is neither sensible nor realistic. The way the votes go in this Chamber proves that. How many times have three or four crossbenchers voted with the Government and three or four voted with the Opposition? The Independents truly are independent and they vote on different pieces of legislation in different ways. I really do not think that is a sensible provision and I do not think that it is going to work in New South Wales. As the Leader of the Government has said, it will make the legislation extremely complicated and in no time at all it will be proved not to work.

The Hon. J. F. RYAN [11.20 p.m.]: It has been said that this provision has no place in our Constitution Act because it will not work. I advise the crossbenchers, as a person who has had some experience with hearings before redistribution committees, that it has been fairly common for people appearing before those committees - whether they represented the Liberal Party, the Labor Party or some other party - to want to say to the redistribution commissioners, "The reason we object to this particular set of decisions, being made, as opposed to this other set of decisions, is that they represent some level of political bias." It is naive to think that it is not reasonable to consider that to some extent. I accept that it is not possible to predict it with 100 per cent accuracy, nevertheless we can reasonably presume that some parts of New South Wales have had a long tradition of supporting the Labor Party, the National Party or the Liberal Party. It is silly and naive to think that people do not make some of those assumptions and cannot logically argue from time to time that that is relevant.

Page 807

The problem is that it is not possible to entertain any of that argument at a redistribution hearing, even though members of the public have on occasion wanted to do so - not just the major political parties, but sometimes individuals. The amendment will allow the redistribution commissioners to at least hear that evidence and give it whatever weight they consider to be relevant. Because it is difficult to determine with any level of accuracy, it probably will not get the level of weight that mountains, rivers and modes of communication are given at a redistribution hearing. It is naive to think that the likely outcome of an election is not relevant and is not taken into consideration. To put that to the test, I have no doubt that the Labor Party will do what the Liberal Party will do in its presentation before the redistribution hearing. We will attempt to present a particular set of boundaries which we believe will give us the best result. Of course it involves a level of guesswork.

As the law currently stands I could not go before a redistribution hearing and argue that the submission made by the Labor Party is designed to create a level of political bias. All I can do is take part in a farce knowing that everyone at the redistribution hearing accepts that it is a farce. At such a hearing I have to somehow argue that Labor’s position is not fair because there is a mountain across a road or there is a river nearby or a road going that way. Everyone knows what is going on. What is going on is that Labor is trying to get a particular result from the redistribution and we are trying to get a particular result from the redistribution. Let me take one example that the Hon. P. T. Primrose and I are very familiar with. A couple of redistributions ago a set of arguments was produced before a redistribution committee about the district of Claymore. We presented arguments about which electorate should include Claymore and the Labor Party presented a similar argument. I will be perfectly honest. We were trying to argue against the Labor Party’s submission because we were worried about the impact it would have had on a particular marginal seat.

The Labor Party was attempting to get a particular district included in the electorate of Camden because it wanted a particular outcome. We went on with the farce, talking about bus routes, shopping centres, where people went to church and where they went to school, and we all recognised that it was a farce. We were trying to find other ways of bringing the issue of fairness before the court. It is naive to argue that it is not relevant for a person making a submission to a redistribution committee to say, "The other party is arguing this particular case because it wants to produce a particular political result." It is naive to think that that should not be something for the commissioners to take into consideration.

This amendment will allow what is occurring now by other means to be explicitly stated so that people will not have to concoct some ruse to try to argue the point. If the Treasurer thinks that the Labor Party does not try to do that I ask him to consider the names that the Labor Party gave to some of the electorates it submitted for redistribution on the last occasion. The electorate that Labor intended the Liberal Party’s former leader to hold was called Askin. Everyone accepts that political parties are concerned with trying to get the best result for the party. It would be naive to believe otherwise. This amendment will allow that to be publicly acknowledged instead of it being done in dark rooms without acknowledgment. It will allow the redistribution committee to behave like adults. I commend the amendment proposed by the Leader of the Opposition.

The Hon. J. S. TINGLE [11.25 p.m.]: What a wonderful word "bias" is and what a wonderful, ephemeral thing the bias idea is. In my long-dead days in radio, when someone said you were politically biased as a commentator what they really meant was, "You did not say what I wanted to hear." The late Ormsby Wilkins, the father of radio current affairs in this country, used to say, "As long as you are called a communist and a fascist in the same week, you are all right because it means you are neither." I cannot support the amendment because it requires a degree of prescience on the part of the electoral commissioners, and does not even allow for bias or, as the Hon. Elisabeth Kirkby said, for voting trends. A great example of this was the last election in this State. On that occasion I was elected to this House when my party was less than three years old. Who, when they were forecasting the way that voting trends might go, could have predicted that the Hon. A. G. Corbett would be elected: even he did not know he would be elected. Seven parties listed on the Legislative Council ballot paper had appeared in the 12 months before the election and, through the allocation of preferences, they had an effect on the outcome of the election. No-one could have predicted that. I believe that that degree of prediction is absolutely superhuman and impossible. I really do not believe I can support the amendment.

Question - That the amendment be agreed to - put.

The Committee divided.

Page 808

Mr Bull Rev. Nile
Mrs Forsythe Mr Ryan
Mr Gallacher Mr Samios
Miss Gardiner Mrs Sham-Ho
Dr Goldsmith Mr Rowland Smith
Mr Hannaford Mr Willis
Mr Kersten Tellers,
Mr Lynn Mr Jobling
Mrs Nile Mr Moppett
Dr Burgmann Mr Macdonald
Ms Burnswoods Mr Obeid
Mr Cohen Mr Primrose
Mr Corbett Ms Saffin
Mr Dyer Mr Shaw
Mr Egan Mr Tingle
Mr Johnson Mr Vaughan
Mr Jones
Mr Kaldis Tellers,
Mr Kelly Mrs Isaksen
Ms Kirkby Mr Manson

Mrs Chadwick Mrs Arena
Dr Pezzutti Mrs Symonds

Question so resolved in the negative.

Amendment negatived.

The Hon. J. P. HANNAFORD (Leader of the Opposition) [11.33 p.m.]: I move Opposition amendment 8 as circulated:

No. 8 Page 3. Insert after line 6 (or after any amendments made by Amendment No 5):

Schedule 2 Amendment of Parliamentary Electorates and Elections Act 1912

Part 2 Amendments relating to the fairness of electoral boundaries

[4] Section 17A Criteria for distributions

Insert after section 17A(1)(b)(v):

, and

(vi) the fairness of the boundaries of the electoral districts.

I have already put before the House arguments in favour of the redistribution commissioners being able to address whether a party that is able to achieve 50 per cent of the vote should be able to argue that it should get 50 per cent of the seats. However, the Government and some of the crossbenchers have rejected that concept. I have argued that the party should be able to argue the concept of bias, but some of the crossbenchers and the Labor Party have taken the view that bias should not be a relevant consideration in a redistribution. I submitted to the House that any party should be able to argue about whether there is fairness associated with the boundaries of an electoral district.

On a number of occasions tonight the Hon. Elisabeth Kirkby said that fairness should be associated with a redistribution. What is fair can take into account many issues that a party might want to raise. The Macquarie dictionary definition of "fair" is very broad. It would allow for many different elements to be argued as to what constitutes a fair distribution. The concepts that have previously been argued against by the Hon. Elisabeth Kirkby and the Hon. J. S. Tingle about the position of a political organisation are not something that necessarily arise under this issue. The Leader of the Government has already said that he intends to reject item [6]. He takes the view that there should be no basis at all upon which any party at an electoral commission hearing should be able to argue the concept of fairness. One would have thought that if there is one principle that may be argued before a redistribution commissioner it is whether a particular electoral boundary, for whatever reason, is fair. If that cannot be advocated before an electoral commission, what is the electoral commission’s role?

Time and again the Hon. Elisabeth Kirkby has expressed her concerns about the concept of fairness associated with redistributions. I urge the honourable member to say that she supports the right of her party, the Australian Democrats, in relation to any electorate in any distribution to say that the proposed boundaries are unfair, for whatever reason. If she does not believe her party should have the right to argue fairness, I wonder what she believes ought to be argued before a redistribution commissioner. I urge the members of the House to support the amendment.

The Hon. M. R. EGAN (Treasurer, Minister for Energy, Minister for State and Regional Development, Minister Assisting the Premier, and Vice-President of the Executive Council) [11.37 p.m.]: For essentially the same reasons as the Government has opposed the last two sets of amendments moved by the Leader of the Opposition, it also opposes this amendment. The Leader of the Opposition is saying that electoral boundary
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commissioners, instead of looking at such things as communities of interest -

The Hon. Patricia Forsythe: As well as.

The Hon. M. R. EGAN: No. What it means is that at the end of the day the electoral commissioners have to say, "Hang on. What we have to do here is ensure that in this electorate we elect a Labor person and in this electorate we elect a Liberal person. We will gerrymander the boundaries to reach this desired political result." That means that the electoral commissioners have to take away from people the right to vote for a particular local candidate, because that is the concept that the Leader of the Opposition is trying to put forward. The electoral commissioners have to say, "Hang on. We have to make sure that we take away from electors the right to vote on a single issue in a particular election in a particular electorate," and the Leader of the Opposition knows that. Essentially he is after a political fix.

The way to get fair boundaries is by having one vote one value, by having independent commissioners and by ensuring that you have a redistribution after a malapportionment of electorates arises because of changing movements of population within the State. But if you try to manipulate a political result - and that is what the Leader of the Opposition is continually trying to do with this series of amendments - you will end up with a huge political injustice to people throughout New South Wales who might not want to vote for the Labor Party, or the Liberal Party, or the National Party, but who, in a particular electorate at a particular election, might want to vote for a particular candidate because of, say, his or her personal attributes. People might be concerned about voting not so much for a particular party but a purely local issue, without any intention that their vote will help elect one or other of the major political groupings to government. If a minor party or an Independent were elected to office in an electorate, people might also be concerned that their vote elected one or other of the major groups to form a government.

The Hon. ELISABETH KIRKBY [11.40 p.m.]: The Leader of the Opposition referred to me several times when talking about fairness. The electoral commissioners will have no trouble in determining what is fair, because the Act provides that they have to give consideration to community of interest, including economic, regional and social interest. They also have to consider the means of communication and travel within each electoral district, its physical features and area, such as mountains and other natural boundaries, and its present boundaries. All those things have to be taken into account.

The Leader of the Opposition said that in addition to considering all those criteria, the commissioners have to decide whether the boundaries are fair. What could be fairer than considering those matters. The only other thing that could be argued is politics, and that has nothing to do with fairness. I know from surveys my party has done that if a street has more Labor voters, moving that street to a marginal Labor seat would give an unfair advantage to the Labor Party, and that is all it would do. I think community of interest, means of communication, physical features, geographic boundaries and existing boundaries are covered by the word "fair". I defy the Leader of the Opposition to define it in any other way. I cannot support the amendment.

Reverend the Hon. F. J. NILE [11.42 p.m.]: It is obvious that any reference to fairness or bias is not being accepted by the Government or the majority of crossbench members. It is also obvious that they cannot vote for amendments based on fairness because they would frustrate the purpose of this bill. The reduction of the number of seats from 99 to 93 has been carefully worked out by the computer projections of the ALP backroom boys to give the ALP the best chance to win the next election. The numbers could have been increased from 99 to 105 or reduced to 90, but 93 is the magical winning number. It is interesting that the ALP and the pro-ALP members of the crossbench want to ensure an ALP victory at the next election. That is what we are voting on now.

The Hon. ELISABETH KIRKBY [11.44 p.m.]: Though the hour is late, I must respond to Reverend the Hon. F. J. Nile. Ten years ago the Labor Party decided to increase the number of seats in the Assembly from 99 to 109. According to all the critics it did so to guarantee its re-election in 1988. However, the Labor Party was not re-elected. It did not work, and that is the whole point. The election of any political party will not be guaranteed by manipulating the number of seats. What happens in the electorate cannot be predicted, the way people will vote cannot be predicted, and we cannot predict major electoral events that may occur in the lead-up to the election that totally change the way people vote. There was one such event today: the resignation of Cheryl Kernot from the Democrats. If that had happened in a week leading up to an election or if she had resigned last week in the lead-up to the South Australian election, the result probably would have been vitally altered. That would have had nothing to do with the way the
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boundaries had been drawn up and whether all political parties believed the boundaries were fair. Totally unexpected events have far more bearing on electoral results than the way the boundaries have been drawn.

The Hon. J. P. HANNAFORD (Leader of the Opposition) [11.46 p.m.]: I remind honourable members, and particularly the Hon. Elisabeth Kirkby, that during the second reading debate she made it quite clear that she embraced the concept of fairness within the redistribution process. Having embraced that concept - and this clause enables that to be argued before the commissioners - she now abandons it. It makes one wonder what the Hon. Elisabeth Kirkby meant when she said that.

Question - That the amendment be agreed to - put.

The Committee divided.

Mr Bull Rev. Nile
Mrs Forsythe Mr Ryan
Mr Gallacher Mr Samios
Miss Gardiner Mrs Sham-Ho
Dr Goldsmith Mr Rowland Smith
Mr Hannaford Mr Willis
Mr Kersten Tellers,
Mr Lynn Mr Jobling
Mrs Nile Mr Moppett

Dr Burgmann Mr Macdonald
Ms Burnswoods Mr Obeid
Mr Cohen Mr Primrose
Mr Corbett Ms Saffin
Mr Dyer Mr Shaw
Mr Egan Mr Tingle
Mr Johnson Mr Vaughan
Mr Jones
Mr Kaldis Tellers,
Mr Kelly Mrs Isaksen
Ms Kirkby Mr Manson

Mrs Chadwick Mrs Arena
Dr Pezzutti Mrs Symonds

Question so resolved in the negative.

Amendment negatived.

The Hon. ELISABETH KIRKBY [11.53 p.m.]: I move Australian Democrat amendment 5:

No 5. Page 1. Long title. After "Ministers" insert "and to amend the Parliamentary Electorates and Elections Act 1912 in relation to the appointment of Electoral Districts Commissioners and the distribution of New South Wales into electoral districts".

I ask that the amendment be supported.

The Hon. M. R. EGAN (Treasurer, Minister for Energy, Minister for State and Regional Development, Minister Assisting the Premier, and Vice-President of the Executive Council) [11.54 p.m.]: The Government supports the amendment.

The Hon. J. P. HANNAFORD (Leader of the Opposition) [11.54 p.m.]: The Opposition also supports the amendment.

Amendment agreed to.

Bill reported from Committee with amendments, including an amended title, and passed through remaining stages.