South Australian Legislative Council

The Legislative Council was the first Parliament in South Australia, formed as a result of the South Australia Act 1842, and replaced the South Australian Colonisation Commission appointed in 1834 by means of the South Australia Act 1834. The 1842 Act gave the British Government, which was responsible for appointing a Governor and at least seven other officers to the council, full control of South Australia as a Crown Colony, after financial mismanagement by the first administration had nearly bankrupted the colony.[1] The Act also made provision for a commission to initiate the establishment of democratic government, electoral districts, requirements for voting rights, and terms of office.[2]

The council was originally appointed by the Governor (then Sir George Grey), and only served in an advisory capacity, as the Governor retained almost all legislative powers. It was expanded slightly in 1843, when several prominent landowners were allowed to join. In the same year, proceedings were opened to the general public.

Public demand for some form of representative government had been growing throughout the 1840s, and this was reflected in a series of reforms in 1851, which created a partially representative Legislative Council. After the changes, it consisted of 24 members, four official (filling what would be today ministerial positions) and four non-official members, both nominated by the governor on behalf of the Crown, and 16 elected members. The right to vote for these positions was not universal, however, being limited to propertied men. In addition, the reforms meant that the Governor no longer oversaw proceedings, with the role being filled by a Speaker who had been elected by the members.

The Legislative Council chamber in Old Parliament House circa 1939

In 1856, the Legislative Council passed the Constitution Act 1856 (SA), which prepared what was to become the 1857 Constitution of South Australia. This laid out the means for true self-government, and created a bicameral system, which involved delegating most of its legislative powers to the new House of Assembly. While all adult males could vote in the new Assembly, the Council continued to limit voting rights to the wealthier classes; suffrage was male-only and dependent on certain property and wage requirements. The entire province was a single electorate for the Legislative Council, electing 18 members.[3]^:18

The council had its purpose in replicating the British House of Lords as a restricted "house of review" in a colonial context. When the Province of South Australia received its original constitution in 1857, it was the most democratic in the British Empire, combining a universal-suffrage lower house (the House of Assembly), with a restricted-suffrage upper house (the Legislative Council). The purpose of the Legislative Council was, as with the 19th century House of Lords, to safeguard the "longer term interests of the nation rather than just reacting to short term ephemeral issues of the day".

In 1882, the Legislative Council was increased to 24 members by the a special election brought on by the Constitution Act Further Amendment Act 1881, and the Province was then divided into four districts which each elected six members: Central, North-Eastern, Northern and Southern districts.[3]^:11

Women earned the right to vote in the Council at the same time as the Assembly, in 1895, the first Parliament in Australia to do so, under the radical Premier Charles Kingston.[4]

In 1902, following the Federation of Australia, the Constitution Act Amendment Act 1901 reduced the size of the legislative council from 24 back to 18 members - 6 from Central District and four each from Northern, North-Eastern and Southern districts.[3]^:94 North-Eastern District was replaced by Midland District from the 1910 election, and the restricted franchise was extended to include ministers of religion, school head teachers, postmasters, railway stationmasters, and the officer in charge of a police station.[3]^:112

In 1913 the franchise extended to the inhabitant occupier of a house (but not their spouse) and the council expanded to 20 people, four from each of five districts, with the Central district being replaced by Central District No. 1 and Central District No. 2.[3]^:127 "Contingency voting", a form of preferential voting, was introduced from 1930.[3]^:140

The council's numbers varied over time. From inception to 1902 it had 24 members; until 1915, 18 members; and until 1975, 20 members. The electoral districts were drawn to favour regional areas with a 2:1 bias in place, with half of the council being elected each time. From 1915 to 1975, Labor did not gain more than two members at each election, with the conservative parties always holding a sizeable majority. From 1975, the council was increased to 22 members, with half (11) to be elected at each election.

The conservative members in the council were very independent, and differed markedly from their counterparts in the House of Assembly. During the long reign of Liberal and Country League (LCL) Premier Sir Thomas Playford, they would prove to be an irritant, and Labor support was sometimes required for bills to pass. When a Labor government was eventually elected in 1965 and began introducing social legislation that was anathema to LCL councillors, they would delay, obstruct and modify such bills. The councillors, however, saw their actions (in the words of MLC Sir Arthur Rymill) necessary to "oppose... radical moves that I feel would not be in the permanent will of the people."[5] The House of Assembly contained some progressive Liberals, and its membership would usually abide by the party line. The council contained none, and its members rebelled regularly against the decisions of the party leadership and the popular will of the people.

Parliament House on North Terrace, Adelaide.

Even after electoral legislation had been implemented in 1967 by Steele Hall that produced a fairer electoral system for the House of Assembly, the council remained unchanged. It was only in 1973 under Don Dunstan that changes were finally made. Dunstan, a social reformist, tired of the council's obstructionist attitude, and put forward bills for its reform. Initially rejected by the council, the reform created a single statewide electorate of 22 members, with 11 being elected each time. It eventually passed with bipartisan support.[6]

The new council was designed to be deadlocked, and for a party majority to be hard to gain. Its proportional electoral system proved favourable to minor parties and they have usually held the balance of power. The Liberal Movement, in 1975, was the first minor party to have members elected to the council, and its successor, the Australian Democrats, held the balance until 1997 when independent Nick Xenophon was elected. The Family First Party and the Greens gained representation in 2002 and 2006 respectively.[7]

The proportional system used in 1973 was party-list proportional representation, but this was modified in 1985. The federal government of Bob Hawke had introduced a new single transferable vote system for the Australian Senate, enabling voters to choose between voting 'above the line' (for a single party preference ticket) or 'under the line' and number all candidates in order of preference, on the ballot paper. The Bannon state government copied this arrangement for the council.[8]

Following the similar Senate changes which took effect from the 2016 federal election, as of the 2018 state election, South Australia's single transferable vote in the proportionally represented upper house was changed from group voting tickets to optional preferential voting − instructions for above the line votes are to mark '1' and then further preferences are optional as opposed to preference flows from simply '1' above the line being determined by group voting tickets, while instructions for voters who instead opt to vote below the line are to provide at least 12 preferences as opposed to having to number all candidates, and with a savings provision to admit ballot papers which indicate at least 6 below the line preferences.[9]

At the 2018 election, the 11 of 22 seats up for election were 4 Liberal, 4 Labor, 1 Green, 1 Conservative and 1 Dignity. The final outcome was 4 Liberal, 4 Labor, 2 SA Best and 1 Green.[10][11][12] Conservative MLC Dennis Hood, who had been elected as a Family First MLC in 2014, defected to the Liberals nine days after the 2018 state election.[13][14] The 22 seat upper house composition is therefore 9 Liberal on the government benches, 8 Labor on the opposition benches, and 5 to minor parties on the crossbench, consisting of 2 SA Best, 2 Green, and 1 Advance SA.[10] The government would therefore require at least three additional non-government members to form a majority and carry votes on the floor.[15]

¹ The two Conservative MPs were elected as members of the Family First Party, which merged into the Australian Conservatives in April 2017.
² One ex-Independent/Nick Xenophon Team MP was created a new state political party named Advance SA in September 2017.

(*) Sandra Kanck was re-elected for a second eight-year term as a Democrat in 2002. In 2009, David Winderlich replaced Kanck due to her resignation. Later in 2009 Winderlich resigned from the Democrats to sit in parliament as an independent.

(*) Terry Cameron had been elected as an Labor member, but had resigned from the party, initially sitting as an independent, and then founding the SA First party in 1999. He did not face re-election in 2002, but the party disbanded soon after the election, and Cameron subsequently returned to being an independent MLC.