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Constitution (Parliamentary Reform) Bill
As Sent Print
EXPLANATORY MEMORANDUM
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
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551003 BILL LA AS SENT 21/3/2003
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.
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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 provides that a member of the Council who is not the President
nor a member of The Executive Council is not entitled to be
styled "The Honourable". However this provision does not affect
any person who ceased to be a member before the next
dissolution of the Assembly.
Clause 11 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 12 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 13 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.
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Clause 14 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 presented for
Royal Assent the Speaker of the Legislative Assembly must
certify that the Bill has been passed in accordance with this
section.
Clause 15 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.
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Clause 16 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 17 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;
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· 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 18 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 19 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;
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· 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 20 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 21 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 22 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 23 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 24 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).
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Clause 25 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 26 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 27 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 28 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 29 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 30 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 31 inserts a new section 73A into the Electoral Act 2002 which
specifies the requirements to display a registered group voting
ticket.
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Clause 32 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 33 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 34 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 35 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 36 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 37 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 38 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.
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Clause 39 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 40 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 41 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 42 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 43 amends the Schedule 2 to the Electoral Act 2002 which sets out
the form of the ballot-paper for use in Assembly elections.
Clause 44 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 45 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 46 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 47 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 48 amends section 17 of the Electoral Boundaries Commission
Act 1982 by replacing a reference to "provinces" with "regions".
Clause 49 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".
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Clause 50 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 51 makes a consequential amendment to section 4 of the
Geographic Place Names Act 1998 by replacing a reference to
"province" with "region".
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