2016-08-17
MR BARBER (Northern Metropolitan) — This is a most serious matter, and at times like this it is good to go back to the Constitution Act 1975 itself and actually read the relevant provisions, think about the plain meaning of the words contained, apply common sense if possible and as much as possible take off your political or loyalty hat and simply read the words in a common-sense way, applying to the background knowledge that we have in relation to how this great parliamentary system of ours has survived and delivered for so long. Let us start with:
27A Filling of casual vacancies in the Council
(1) Subject to this section, if a casual vacancy occurs in the seat of a member of the Council, a person must be chosen to occupy the vacant seat by a joint sitting of the Council and the Assembly.
The provision then goes on simply to talk about who, by what method they are to be put forward and a range of rather technical sorts of matters.
That first clause with the word 'must' does not really envisage any alternative option but the two houses with all possible expediency getting together to do this precise thing. I do not believe the people who drafted this, or where similar provisions occur in other parliaments, ever considered the possibility of one house, the house being controlled by the government, simply refusing to step up and do the constitutional requirement, hence the word 'must' — it is not an option, it is simply a procedure that has to be complied with.
Why would the constitution apply such a power and then leave it to two houses that on other matters often find themselves in conflict? There is a very simple-to-understand principle at stake here, and that is of the comity of the two houses. The two houses in this Parliament have equal and separately exercised powers, privileges and immunities, and there are a number of safeguards in terms of practice that prevent those two bodies from coming into head-on collision. For example, this house from time to time requests members of the other place to either attend the chamber or attend a parliamentary committee, but we have no ability to force that member to come here because that other house has the equal power to order that member not to come here.
If we look at something such as the sub judice rule, we see that is another example of comity between different parts of the constitutional system. First of all, we do not address matters in this chamber that are subject to the courts because we do not wish to prejudice what they are doing. That part, I think, is well understood by everybody — perhaps except Senator-elect Hinch, who thinks he is going to change things when he hits the federal Senate. But the other part of that principle is the principle of comity, and we do not actually want to in any way interfere or make it more difficult for the court to deliver its particular function.
It is important to understand that while we have certain powers, privileges and immunities that we seek to exercise, we would never want to exercise them in such a way that would prevent the other house from exercising theirs. By the same token, we have seen in the federal Senate many moons ago a parliamentary inquiry into the Victorian casino established. That inquiry did not get very far because they realised they would have to be calling members of the Victorian Parliament to answer their questions — yet again the comity between the Senate and the state house. In that instance — and I believe that Senator Kim Carr was on that committee along with Senator Sid Spindler — they understood very quickly that they needed to holster their guns and step back slowly, otherwise they were going to create an irreconcilable and incredibly damaging game of chicken between two different houses, one in the federal Parliament and one in the state Parliament, that were going to separately exercise their powers. So I believe it is very damaging that the principle has been breached in such an important way.
There are other instances where that principle, or at least the smooth working of joint matters between the two houses, needs to carry on if certain important parts of our system that add value to the system are to continue operating. That is a fundamentally different question to the question of how this Legislative Council deals with one of its own members, and that is what we have been doing in relation to Mr Jennings. To briefly recap, we passed resolutions calling on the member to do certain things, deliver certain documents. The member refused to do that, and in an attempt to coerce — not punish, but coerce — that member to comply with the resolutions of the house he has been suspended from the house. But he himself has the key to re-enter the house whenever he wants. He needs to deliver those documents or at least deliver some more information that the house requires until that satisfies the house.
There have been some plaintive remarks from the government seeking the cooperation of the opposition in relation to those documents. Not all those documents were sought by members of the opposition. In fact it was the members of the Greens who sought some of those documents. If the government wants to come and have a chat with the Greens about what would satisfy the spirit of their original documents motion, that is something it could do at any time. But it appears on this matter that while the government is outraged about the length of the potential suspension, it is actually much more keen on keeping secrecy around those documents and establishing its ability to continue to govern in large part in secret than it is on actually having its own member returned to the chamber. So some of that rings a bit hollow to me, but I was not intending to reprosecute that entire matter here today.
This is a very difficult and damaging development by, in this case, the government-controlled Legislative Assembly, because should this motion even pass here today, there is nothing we can do to actually force the Legislative Assembly to cooperate with a joint sitting. I do not believe that even in a court of law there would be any way to order the Legislative Assembly to vote in a certain way. Members should soberly understand exactly what a problem this view by the government that it will not cooperate with this constitutional provision actually creates. It creates a huge problem for the constitutional system.
The suspension of Mr Jennings does not create a problem for the constitutional system unless the Leader of the Government would like to appeal the matter to a court of law and attempt to have some sort of judicial review. But it appears he accepts the powers of this chamber to suspend a member. If he did not accept that the power exists, then he could perhaps engage in a sit-in on the floor of the chamber. That would bring the matter to a head fairly quickly. But we do not want to end up like one of those dodgy overseas parliaments, with members brawling across the tables with each other. We are here to resolve society's broader conflicts, not actually create new ones, and so far I am not seeing any claim by the government that the house's power to suspend a member in these circumstances actually does not exist. They are not challenging the existence of that power. They are just simply disagreeing with the manner and occasion of its exercise, whereas they should very much be considering whether the Legislative Assembly has the power or in any appropriate circumstance that they should read the constitution to say that they can simply refuse to carry out the requirement of section 27A.
You do not have to think very far to imagine how out of control this could become. Heaven forbid that any member in this place gets hit by a bus on the way home tonight — and that could be a member of any party; it could even be a member of the government party — who then, through some circumstances we cannot envisage, would have to be replaced using the same mechanism. And would it be appropriate to then keep knocking out members from taking up their seats in Parliament in that way?
I think I should avoid speculating about why it is that the government has formed its view. It seems like a tit-for-tat measure. I do not want to delve more deeply into the political motivations for it. Anyone can accuse anyone in this place of having a simple political motivation. I have tried to keep it to the question of constitutional requirements and the great risks of thumbing one's nose at those requirements.
What I would say to the opposition and to The Nationals, whose member it is who is affected in this current instance, is that they should not take this lying down. They should not simply pass a motion and bang on about it. There should be further action taken. The Greens are not on any of the joint committees, but the opposition, who are — —
[Speech was interrupted.]
Mr BARBER — Correction: Ms Pennicuik is on one of the joint committees. But the opposition might want to think about withdrawing its members from those joint committees. I mean, that is a joint function duly exercised by the two houses, but in that instance the committees themselves cannot meet without an upper house member present. They would be inquorate. Likewise the opposition ought to seriously think about why they are continuing to just wave through government legislation when we have this fairly major constitutional issue to resolve here. I know withdrawing their labour is not one of the strong suits of the Liberal Party — it is not the thing they first move to; Labor members would be a lot more familiar with that — but they ought to seriously consider why we should continue to cooperate with the lower house when that house is also simply willing to thumb its nose at or ignore the constitutional requirement that it has here in section 27A. Beyond that I have not turned my mind to what other options are open to this chamber in exercising its powers.
The government, I think, has painted itself into a corner here. Their demeanour and their action and the way they have talked about this suggests they feel more and more cornered. The situation could probably get a lot worse for them if they are not prepared to look at the state of the rules and the longstanding principles that have underpinned our system.
In the recent election there was an ever larger vote for micro-parties — parties that, when you look at what they are standing for, you see are effectively anti-system parties, parties that by nature of their issues or ideology feel like the current system simply is not delivering. That has caused some difficulties for the whole of the Australian community — when there is a group of parties there whose commitment is not to deliver the outcome they want via the system but are running in order to get a foothold in the system which they believe fundamentally is not delivering. The rhetoric that goes with that is that the system is broken. That is somewhat contradictory for them when they find themselves part of it, but at the same time I think all political parties ought to sit up and take notice at the ever-increasing vote by and for movements whose members think that the system no longer works for them.
That is an even greater reason why I think those of us who have made it into this place — and I certainly accept the legitimacy of everybody who has made it into this place — ought to be doing all they can to protect, shore up and in fact champion the elements of the system. The Westminster system has been an incredibly effective system for resolving differences. It did not just get dreamed up by some think tank overnight. It was developed over many, many years of British history, including interruptions over the centuries by several incredibly bloody civil wars, which were as bad as any we see around the world today. The elements of the system came out of that enormously painful series of conflicts, and we ought to all respect that and learn the lesson of that and do the best we can to protect the system that so far has proven itself one of the best in the world for resolving conflicts democratically as opposed to through the resort to violence.
I am not suggesting violence is about to break out in Victoria, but there are some worrying signs that an ever-increasing part of the electorate is starting to break away from the view that we have a healthy democracy in Australia and to attempt by one means or another to more or less overthrow it and replace it with some system that they cannot articulate for us. Any member who has made it into this place by fair and democratic means ought to be part of maintaining that system. I think that while passing this motion is not going to have any direct impact on the Legislative Assembly, it is nevertheless an opportunity for members to state where they stand. I think this is an incredibly important precedent that is being set here that will no doubt be looked at by other parliaments.
To access full speeches and debates please visit http://www.parliament.vic.gov.au/hansard where you can search Victorian Hansard publications from 1991 onwards.