This is the text of the explanatory memorandum that was circulated with the Constitution (Parliamentary Reform) Bill.
The bill involves historic reform of the Victorian Parliament. It reforms the Legislative Council, eliminates the power of the upper house to block Supply and introduces fixed four-year terms for both houses.
Constitution (Parliamentary Reform) Bill
Circulation Print EXPLANATORY MEMORANDUM551003
Clause 1 provides that the purpose of the Bill is to reform the Parliament of Victoria based upon the recommendations made by the Constitution Commission Victoria–
* to provide for a fixed four year parliamentary term, unless dissolution of the Assembly occurs sooner;
* to re-constitute the Council to consist of 40 members, elected from 8 regions each region returning 5 members;
* to provide for proportional representation with optional preferential voting for members of the Council;
* to provide for the filling of casual vacancies in the Council;
* to provide that the President of the Council has a deliberative, but not casting, vote;
* to recognise the principle of Government mandate;
* to remove the ability of the Council to block supply (Annual Appropriation) Bills;
* to establish a dispute resolution process for deadlocked Bills;
* provide for the entrenchment of certain legislative provisions.
Clause 2 provides for the commencement of the Act. The machinery provisions of the Act come into operation upon receiving Royal Assent.
Those parts of the Act which deal with the fixed four year term, improving the relationship between the Houses (including dispute resolution) and strengthening the Constitution by entrenching a number of sections, referendums and the division of the first new regions come into operation on a day to be proclaimed, or on 1 January 2004 (whichever event is the sooner).
Matters concerning proportional representation and other reforms of the Council, amendments to the Electoral Act 2002 and voting in elections and other miscellaneous amendments come into operation on the date of the dissolution of the current Legislative Assembly.
Clause 3 substitutes section 8(3) of the Constitution Act 1975 and repeals sections 8(4), (5) and (6). This new provision provides that the Assembly may only be dissolved by the Governor if there is a motion of no confidence in the Premier and other Ministers, or the Premier advises the Governor to dissolve the Assembly if the dispute resolution process has failed to resolve a deadlocked Bill.
Clause 4 inserts a new section 8A into the Constitution Act 1975 which sets out the requirements for a motion of no confidence in the Premier and other Ministers to be passed, before a dissolution of the Assembly may occur.
Clause 5 substitutes section 28 of the Constitution Act 1975. This section provides that the Council will exist as long as the Assembly co-exists. If the Assembly is dissolved or lawfully determined, the Council will also cease to exist.
Clause 6 substitutes new sections 38 and 38A for section 38 of the Constitution Act 1975 to provide that the current Assembly and each subsequent Assembly shall expire on the Tuesday which is 25 days before the last Saturday in November, which is nearest to the fourth anniversary of the election day on which the Assembly was elected.
If there is a dissolution during the usual four year November election cycle, then to return to the fixed November date, the next election day will be the last Saturday in November, closest to the fourth anniversary of the previous election, but not more than four years. This means that if there was a break in the usual November election cycle (due to a vote of no confidence or via the dispute resolution process) in returning to the fixed November date, a parliamentary term will not be longer than four years.
This provision also enables election day to be postponed, in exceptional circumstances, by agreement between the Premier and the Leader of the Opposition. The postponed day must, however, be as close as possible to the
original fixed election day.
Clause 7 makes a number of consequential amendments to the Constitution Act 1975 arising from the fixing of a four year term.
Clause 8 substitutes two new sections for sections 26 and 27 of the Constitution Act 1975. These sections provide for the division of the State into 8 region, each region returning 5 members in respect of the first Council elected after the Act receives Royal Assent and to each Council thereafter.
The regions must consist of 11 districts and be contiguous with the Assembly districts.
The Electoral Boundaries Commission is responsible for the division of the region boundaries, in accordance with the Electoral Boundaries Commission Act 1982.
Clause 9 inserts a new section 27A into the Constitution Act 1975 which provides that in the case of the vacancy of a member, a new member will be selected by a joint sitting of both Houses and where the vacating member was elected as a member of a party, the joint sitting must select a person nominated by that party. In the case of an independent member vacating, the person who is selected as the replacement must be selected by a special majority of members present at a joint sitting and have resided in the vacating member’s region for the previous 12 months and not been a member of a political party for the previous five years.
Clause 10 amends section 32 of the Constitution Act 1975 to provide that the President of the Legislative Council will have a substantive or ‘deliberative’ vote, and not a casting vote. The quorum of the Council will now include the President.
Clause 11 inserts a new section 16A into the Constitution Act 1975 which provides that in exercising its powers as a House of Review, the Council is to recognise the Government’s specific and general mandate.
Clause 12 substitutes section 62 of the Constitution Act 1975 and provides that an Appropriation Bill must originate in the Assembly, and may be rejected, but not altered by the Council subject to section 65.
Clause 13 substitutes section 65 of the Constitution Act 1975 and provides that if within one month of an Appropriation Bill passing the Assembly, and the Council fails to pass it or returns it to the Assembly suggesting an amendment to which the Assembly does not agree, the Bill must be presented for Royal Assent and becomes an Act of the Parliament, notwithstanding that the Council did not pass the Bill. Before the Bill is second read in the Assembly, the Auditor-General must certify that the Bill is an Appropriation Bill. Before the Bill is presented for Royal Assent the Speaker of the Legislative Assembly must certify that the Bill has been passed in accordance with this section.
Clause 14 inserts a new Division 9A into the Constitution Act 1975. This Division provides for a dispute resolution process to resolve disputes between the Houses concerning a deadlocked Bill. This Division provides for the establishment of a Dispute Resolution Committee at the commencement of each Parliament.
The Committee may resolve that the Bill pass in unamended form, that the Bill pass in amended form and the necessary amendments must be part of the resolution or that the Bill not pass.
If the Committee reaches a resolution within one month after the disputed Bill is referred to the Committee, and the resolution is not acceptable to either House within two months, then the Governor may, on the advice of the Premier, dissolve the Assembly, or the Deadlocked Bill can be held over to the next Parliament.
If the Committee fails to reach a resolution on the Disputed Bill or fails to meet, the Disputed Bill becomes a Deadlocked Bill and following the next election, may be presented to the Assembly again, either in its original form or in a form consistent with the resolution of the Committee.
If the Deadlocked Bill is not passed in the form acceptable to the Assembly within two months, the Governor, on the advice of the Premier, can convene a joint sitting to consider the Bill. The Bill must be passed by a majority of the total number of members of both Houses sitting in the joint sitting, after which passage is said to have occurred by both Houses of Parliament.
If the Deadlocked Bill is entrenched by an absolute or special majority, passage at the joint sitting must be by an absolute majority, before the Bill is then eligible for Royal Assent.
If the Deadlocked Bill is entrenched by referendum, the Bill must be passed by a majority at the joint sitting, and then passed by a majority of electors voting at a referendum, before being eligible for Royal Assent.
Clause 15 makes a consequential amendment to the heading of Division 9 of Part II of the Constitution Act 1975 by deleting the title, “and Disagreements between the Houses” since the new Division 9A will provide for a Dispute Resolution procedure.
Clause 16 amends section 18 of the Constitution Act 1975 to provide for three methods of entrenchment–
* by a referendum of the Victorian electors conducted in accordance with the Electoral Act 2002;
* by a special majority, meaning 3/5ths of the whole number of members of the Assembly and the Council respectively;
* by an absolute majority of the whole number of the members of the Assembly and the Council respectively.
The following ‘core’ matters are entrenched in this section by referendum–
* The requirement for a referendum;
* Regions, number of members and the quorum of the Council and to the President;
* Districts, duration of, quorum of and number of members of, the Assembly and to the Speaker;
* A session of Parliament each year;
* Appropriation Bills and the inability of the Council to block supply;
* Dispute resolution process for deadlocked Bills;
* Local Government as a distinct and essential tier of government;
* Continuance of the Supreme Court;
* Executive arm of Government and the Executive Council;
* The Auditor-General, the Director of Public Prosecutions, the Ombudsman and the Electoral Commissioner as independent officers of the Parliament;
* Electoral Boundaries Commission functions; and
* Freedom of Information functions.
The following ‘procedural’ matters are entrenched in this section by a special 3/5ths majority–
* The requirement for a special majority;
* The Crown, including provisions relating to prorogation and dissolution;
* Constitution and powers of the Parliament;
* Eligibility requirements for members and voters; and
* The provision which enables a House to relieve a member from the consequences of alleged defaults (e.g. breach of the office of profit provisions).
The following matters are entrenched in this section by an absolute majority–
* The requirement for an absolute majority;
* The membership of the Court, appointment of judges, reserve judges, judge’s and master’s salaries, allowances and pensions etc; and
* The jurisdiction of the Supreme Court (including the requirements for section 85 statements).
Clause 17 amend section 74A of the Constitution Act 1975 to provide for the recognition of local government as a distinct and essential tier of government which is subject to Parliament’s ability to legislate in respect of each Council’s functions and powers. The new provision also recognises that each Council is responsible for governance within its boundaries, constituted by democratically elected councillors and is administrated by a supportive body to implement decisions and facilitate the Council’s performance of duties and functions.
Clause 18 inserts a new Part VA into the Constitution Act 1975. This Part–
* inserts new sections which establish the offices of the Ombudsman and the Electoral Commissioner as independent officers of the Parliament;
* ensures the continuance of an Electoral Boundaries Commission whose function is to continue to perform the function specified in the Electoral Boundaries Commission Act 1982; and
* inserts a provision which ensures the continuance of an Act whose functions and objectives reflect the Freedom of Information Act 1984.
Clause 19 inserts a new Part 9A into the Electoral Act 2002. This Part inserts new sections which provide for the process by which referendums are to be held and how they are to be conducted.
Section 177B provides that the provisions relating to referenda apply as if it relates to an election, subject to the exceptions described throughout the remainder of Part 9A.
The sections in Part 9A also require the Governor to issue a writ for the referendum, attach a copy of the Bill and the text of the provisions proposed to be altered and sets out the duties of the Commission when a writ is received.
This new Part also describes that an elector is to write YES or NO in the space provided, sets the form the ballot paper is to take, when ballot papers are to be rejected as informal and the process which is to occur after the completion of the counting of votes.
Clause 20 amends section 8 of the Electoral Act 2002 to provide that the Electoral Commission is responsible for the enrolment process and
the conduct of elections and referendums in Victoria.
Clause 21 inserts two new schedules into the Electoral Act 2002. Schedule 3 is the form of a writ for a referendum to be used by the Governor, and Schedule 4 is the form of the ballot paper to be used in a referendum.
Clause 22 makes amendments to section 3 of the Electoral Act 2002 by making consequential definitional amendments which arise as a result of the new procedure for appointing members of the Council to fill a casual vacancy, the new division of the State into regions and the new definitions of Council election and general election (rather than simultaneous election).
Clause 23 amends section 18 of the Electoral Act 2002 dealing with election managers and election officials, due to the new division of the State into regions and the new definitions of Council election and general election (rather than simultaneous election).
Clause 24 amends section 33 of the Electoral Act 2002 dealing with the provision of electoral information, due to the new division of the State into regions and the new definitions of Council election and general election (rather than simultaneous election).
Clause 25 amends section 61 of the Electoral Act 2002 which specifies the timing for the issue of a writ for a general election by the Governor.
This clause also amends section 62 of the Electoral Act 2002 to make consequential changes concerning the process for filling a casual vacancy in the Council, if such vacancy occurs by reason of a member contesting a seat in a Commonwealth election, then the filling of the vacancy must be delayed until the result of the Commonwealth election has been declared.
Further, this clause amends section 63 of the Electoral Act 2002 which sets out the timing for the final nomination day and when the election is to be held.
Clause 26 amends section 69 of the Electoral Act 2002, to specify that a candidate for a Council election must indicate on their nomination form, the place of their enrolment and accompany the enrolment form with a payment of $350.
Clause 27 inserts two new provisions into the Electoral Act 2002. These provisions set out the requirements for the grouping of two or more candidates for a Council election and the requirements for a group of candidates who wish to obtain a group voting ticket describing the order of preferences for candidates in the election.
Clause 28 amends section 72(1) of the Electoral Act 2002 by qualifying that the death of an Assembly candidate at certain times may lead to the election failing, but not the death of a Council candidate.
Clause 29 amends section 73 of the Electoral Act 2002 to provide that an election must be held if there is more than one Assembly candidate in each district or more than five Council candidates in each region.
Clause 30 inserts a new section 73A into the Electoral Act 2002 which specifies the requirements to display a registered group voting ticket.
Clause 31 amends section 74 of the Electoral Act 2002. The amendments make provision for groups of candidates to also have the order of their names on the ballot paper determined by the Commission and directs that the form of ballot paper in Schedule 2 to the Electoral Act 2002 is to be used for Assembly elections only.
Clause 32 amends section 76 of the Electoral Act 2002 by replacing a reference to “province” with “region” in relation to the appointment of scrutineers at voting centres and that scrutineers may represent a candidate in ascertaining the number of votes for Council candidates.
Clause 33 amends section 77(4) of the Electoral Act 2002 to provide that the existing procedure for How-to-Vote cards in the Electoral Act 2002 applies to an Assembly election only and inserts a new provision detailing the requirements for a How-to-Vote card for Council elections.
The clause also amends section 79(4) of the Electoral Act 2002 to describe the matters which the Commission must have regard to in determining to register How-to-Vote cards, applies in relation to Assembly elections only and inserts a new provision setting out the matters to which the Commission must have regard in determining whether to register How-to-Vote cards in a Council election.
Clause 34 amends the heading to and section 93 of the Electoral Act 2002 to take account that the existing procedure for marking votes applies in relation to the Assembly only.
Clause 35 inserts a new section 93A into the Electoral Act 2002 describing how votes are to be marked in a Council election. This new section provides that in Council elections, the elector may vote above the line by placing a number 1 in the square for the group, or below the line by placing numbers at least from 1 to 5 in the squares opposite each candidate’s name. A tick or cross in the box is also taken to be a number 1 for the purposes of marking a vote in relation to a group ‘above the line’.
Clause 36 amends section 112(1) of the Electoral Act 2002 to provide for the circumstances in which a ballot-paper will be rejected as informal in Council and Assembly elections.
Clause 37 inserts two new sections into the Electoral Act 2002, sections 112A and 112B. These sections provide the circumstances in which Council ballot papers may be taken to be formal and the way in which Council ballot-papers may be deemed to be marked when an elector has voted for a group of candidates.
Clause 38 amends the headings to and sections 113 and 114 of the Electoral Act to provide that the existing procedure for ascertaining the number of votes applies to Assembly elections only.
Clause 39 inserts a new section 114A into the Electoral Act 2002 which provides for the procedure to ascertain the number of votes for Council candidates.
Clause 40 substitutes a new Schedule 1 to the Electoral Act 2002 which sets out the form of the writ to be used by the Governor for a general election.
Clause 41 inserts a new Schedule 1A to the Electoral Act 2002 which sets out the form of the ballot-paper for use in Council elections.
Clause 42 amends the Schedule 2 to the Electoral Act 2002 which sets out the form of the ballot-paper for use in Assembly elections.
Clause 43 inserts two new sections and a schedule into the Electoral Boundaries Commission Act 1982. The new section 18 will require the Commission to divide the State into electoral regions during the period from 1 January 2005 to 30 November 2005. New section 19 inserts the regions appearing in the Schedule, if an election is to be held, but the division has not been completed by the Commission, as required in section 18.
Clause 44 makes a number of consequential amendments to sections 2, 5, 8, 9, 10A, 10B and 11 in the Electoral Boundaries Commission Act 1982 by replacing references to “provinces” with “regions” and to ensure that in establishing regions, the regions are contiguous with the Assembly districts.
Clause 45 substitutes section 14 of the Electoral Boundaries Commission Act 1982. New section 14 provides for the commencement of the boundaries and the names of the first regions.
Clause 46 substitutes section 16 of the Electoral Boundaries Commission Act 1982 to provide that the division of electors does not affect the selection of a person to occupy a seat caused by a casual vacancy of a Council member.
Clause 47 amends section 17 of the Electoral Boundaries Commission Act 1982 by replacing a reference to “provinces” with “regions”.
Clause 48 makes a number of consequential amendments to sections 5, 24, 42 and the heading to subdivision (1) of Division 5 of Part II of the Constitution
Act 1975 by replacing references to “provinces” with “regions”.
Clause 49 makes a consequential amendment to section 3 of the University of Ballarat Act 1993 by substituting the definition of the Ballarat region with the “districts for the Legislative Assembly of Victoria of Ballarat East and Ballarat West”.
Clause 50 makes a consequential amendment to section 4 of the Geographic Place Names Act 1998 by replacing a reference to “province” with “region”.