ACTU SUBMISSION TO THE CONSTITUTION COMMISSION OF
VICTORIA
November 2001
INTRODUCTION
This submission is made by the Australian Council of Trade Unions.
The ACTU was established in 1927. Located in Melbourne, it has 44 affiliated unions with a
combined membership of around 1.8 million workers throughout Australia, and some 350,000
who live and work in Victoria.
The ACTU is charged with representing the views and interests of these workers.
Accordingly, the ACTU has a strong interest in systems of government throughout Australia,
including in Victoria.
THE ROLE OF THE LEGISLATIVE COUNCIL
The ACTU notes that the Legislative Council was established primarily for “the protection of
wealth and privilege”. (Discussion Paper released by the Commission: A House of Review:
The Role of the Victorian Legislative Council in the Democratic Process p 14)
Put more colourfully by Claude Forell, the Council was established “as a bastion of privilege,
power and paternalism to resist the potential ravages of radical democracy in the popularly
elected Legislative Assembly.” (The Age 2/10/01)
The ACTU believes that public perceptions of the Council have not changed significantly and
that there is an urgent need for reform.
The ACTU endorses the views of the Chairperson of the Commission, Professor George
Hampel QC, who states in his introduction to the Discussion Paper:
“To remain relevant and effective all structures and institutions that serve the community
must be open to scrutiny, review and change if necessary.” (p 5)
The ACTU supports reform of the Legislative Council and, in particular, reform of the
method of selection of members of the Council.
We stress that without reform of the selection process any other changes to the role or
responsibilities of the Council will be nugatory, primarily because of the high level of party
discipline imposed on Council members.
This submission follows the headings of the terms of reference of the Commission.
(i)
the responsiveness and responsibility of the Upper House to the Victorian people
As currently constituted, the Legislative Council does not represent or respond to the
Victorian community. The ACTU, which has experience of legislatures nation-wide,
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endorses the view put by The Age newspaper that it “is one of the least productive and
unrepresentative parliamentary bodies in the nation.” (Editorial 21/3/01).
This is apparent in the Council’s remoteness from electors, due to the length of terms and
staggered election timetable.
The terms of members and the staggered election of members means that at any given time
half the members of the Council have not faced election for eight years.
The result is that they may be out of touch with community sentiment and not in tune with the
changing needs and aspirations of the communities they were elected to represent.
The ACTU supports four year terms for members of the Legislative Council.
There is no sound reason why only half of the Legislative Council should go to the people at
each Legislative Assembly election, given its party political nature.
(ii)
the role of and accountability of the Upper House in relation to Executive
Government
The ACTU does not believe that the Legislative Council should have an unfettered ability to
obstruct the Legislative Assembly in the implementation of policies for which it has a clear
mandate from the people.
Currently the Council merely replicates the partisan voting patterns of the Assembly. As
stated in the Discussion Paper: “It is not so easy to identify a clear difference between the
role, structure and powers of the current Upper and Lower Houses of the Victorian
Parliament.” (p16)
The Council does not appear to perform the functions of a house of review, identified in the
Discussion Paper as:

Bringing a range of different perspectives to bear on public policy
Council members will often simply replicate speeches made by their own party
representatives in the Legislative Assembly and do not necessarily bring different
perspectives to bear.
As noted in the Discussion Paper, in order for different perspectives to be aired, the
membership of the Council would need to be significantly different from the Assembly,
requiring a different method of selection of members of the Council.

Scrutinising Government activities, policies and legislation, together with an ongoing
oversight of human rights issues raised by Courts, administrative tribunals and
ombudsmen
The Council has rarely engaged in this type of scrutiny. It is particularly noteworthy that
during the period of the Kennett Government, when threats to fundamental democratic
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principles were identified by courts, tribunals and independent statutory office holders, the
Coalition–dominated Council did not play a moderating role.

Identifying points of concern and requiring the Government to justify or reconsider its
policy intentions
There is no indication that the Council performs this role, other than in a narrow party
political way which, as noted, merely replicates the arguments that have been made by the
same party in the Assembly.

Allowing more time and opportunity for consideration of legislation
The mere existence of the Council and the associated parliamentary timetable means that Bills
transferring from the Assembly to the Council lie over for a longer period of time – although
there were instances of almost instantaneous approval by the Council of legislation
implementing controversial Kennett Government initiatives.
Nevertheless, the longer period of time which currently operates does not often lead to greater
opportunity for open consideration of legislation or responsiveness to community concern.
The ACTU was involved in consultation regarding the Fair Employment Bill recently put
forward by the Labor Government. Despite a high degree of community support for that Bill,
the Council merely voted along party lines to defeat it.

Amending and improving legislation or, in some cases, disallowing it
As noted in the points above, the Council does not provide any alternative viewpoints to those
that are expressed in the Assembly. In recent times the Council has rejected the Fair
Employment Bill and the Home Detention Bill.
The blocking of the Fair Employment Bill was a major concern to the ACTU given the
Government’s specific mandate for this legislation and the strong community support for its
provisions.

Representing strong regional interests
The ACTU has a strong network of regional trades and labour Councils. We support having
strong regional interests represented in the Victorian Parliament. Unfortunately, the
Legislative Council has never performed this role. As previously stated, Council members
confine themselves rigidly to narrow party political policies and positions.

Committees
The Discussion Paper asks whether the Legislative Council could make better use of
committees so as to more effectively operate as a house of review.
The ACTU, whilst supportive of greater use of committees, notes that they will only be
successful if the membership of the Council is altered by adoption of a different method of
election. As the Discussion Paper notes, committees of the Australian Senate have only been
effective after “a broader range of members began to be elected to that House”. (p19)
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The ACTU has had extensive experience with Senate committees, and can confirm that, at
least in some cases, committees composed of members who do not see themselves as merely
adjuncts to their party equivalents in the House of Representatives can play a valuable role in
assessing legislation and proposing amendments. Senate committee effectiveness is, of
course, enhanced by the fact that for many years no Government or Opposition has had a
Senate majority.
(iii)
whether the Legislative Council should retain the power to reject appropriation
bills, and, if so, whether any or what limitations should be placed on that power
Consistent with the view put in respect to point (ii) above, the ACTU does not believe the
Council should retain the power to reject or amend appropriation bills passed by the
Assembly
As noted in the Discussion Paper the “Powers of the Legislative Council in this regard are
among the strongest of all Upper Houses in the Westminster system.” (p 14)
The fact that few if any other upper houses have the power to reject or amend appropriation
bills reflects the contemporary view that for effective modern government consistent with
Westminster principles, no upper house should be able to impede a government with respect
to money bills.
This modern principle of government should be reflected in the Victorian system of
Government.
(iii)
whether the Members of the Legislative Council should be elected one half at
each election or should all be simultaneously elected
As stated in point (i) above, the ACTU believes all members of the Legislative Council
should be simultaneously elected.
(iv)
whether the Legislative Council should be elected on the basis of proportional
representation and, if so whether this should be on the basis of multi member
electorates or on any other and what basis
As stressed in the Discussion Paper, it is clear that the method of selection of members of the
Council has a major bearing on the role it performs.
“Because of the party system, it is possible that if either the Government or the Opposition
has a majority in the Upper House then its capacity to act as a House of Review will be
affected. If Government supporters form a majority, then party loyalty will inhibit the House
in its critical review of the Government’s activities. If the Opposition has a majority, then
party loyalty and the prospect of defeating the Government at the next election may be the
motivating force, rather than the need for genuine review.” (p 18)
The current arrangements disproportionately advantage the conservative parties. In the 1999
general election for the Legislative Council the ALP won 42.4 per cent of the primary vote
and 50.1 per cent of the two party preferred vote across the state. However only eight of the
22 Council seats (36 per cent) were won by Labor. With 39.7 per cent of the vote the Liberal
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Party won half of the seats and the National Party, with 7.2 per cent of the primary vote won
13 per cent of the seats. (Research by Nicholas M. Economou and Brian J Costar)
This is unfair and inequitable. It highlights the need for reform of the method of selection of
members of the Upper House in Victoria.
The ACTU regards the issue of selection of members of the Legislative Council as the key
issue to be dealt with if there is to be any reform of the Council.
As noted in the Discussion Paper,
“Under a proportional representation system voters can express support for a wider range of
candidates and associated policy positions.” (p22)
The ACTU supports this view. This is reflected in the experience of the Australian Senate and
the state upper houses in NSW, SA and WA.
As to whether the electorate should be the State as a whole or multi member electorates the
ACTU agrees with the comments made by Claude Forell (The Age 3/10/01) in rejecting the
State as a single electorate because it:
“encourages a plethora of fringe groups and candidates to stand, gives the party elites too
much control over the choice of electable candidates and is apt to give minor parties or
independents the balance of power.”
The ACTU supports a system of multi-member electorates, including the proposal for eight
electorates each returrning five members. With an Upper House membership of 40, this
would require successful candidates to achieve a quota of 16.6 per cent, which would ensure
that only candidates with a reasonable level of community support would be successful.
OTHER ISSUES
(ii)
A fixed four year term of Parliament
The ACTU sees no reason to change the present system of four year terms with a minimum of
three. This provides a measure of certainty and longevity sufficient for good governance
while providing the Government of the day with some flexibility in terms of the timing of the
election.
(ii)
the reduction, to any and what extent, of the total number of Members of either
House of Parliament.
The change in the method of election of Legislative Council members would result in a
reduction in the number of members in the Council from 44 to 40. The ACTU sees no need
to alter the number of members of the Legislative Assembly.
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(iii)
the removal or modification in any way of the nexus between the Houses which is
provided by sections 27 and 28 of the Constitution Act.
The ACTU sees no need for the continuation of a specific nexus between the Houses of
Parliament. If the Legislative Council is to be elected at the same time as the Assembly and
on the basis of multi-member electorates there is no need for a nexus.
CONCLUSION
The ACTU recognises that the task of balancing stability with representation of different
views and interests in a parliamentary system is a difficult one. Nevertheless, the structure of
the Victorian Legislative Council provides neither. Reform is badly needed to ensure that its
membership is more representative of and accountable to Victoria voters.