In the House – Final sitting week of 2020

Appropriation Bills and Electricity Infrastructure Investment Bill

A marathon all-night sitting, over 250 amendments lodged to one bill and a central constitutional principle is debated – this ‘bumper edition’ of House in Review dissects a huge final sitting week in the Legislative Council!

A number of interesting procedural events also took place during this sitting week – stay tuned as we deep dive into these topics over the coming weeks!

Electricity Infrastructure Investment Bill 2020

In the morning of Friday 20 November, debate resumed on the bill, introduced in the previous sitting week, which seeks to improve the affordability of electricity supply in NSW by encouraging investment in new electricity generation, storage, network and related infrastructure. Having commenced his second reading speech the day before, the Parliamentary Secretary (Mr Franklin) briefly concluded his remarks before the House resolved into committee of the whole. This marked the beginning of the House’s consideration of 257 amendments to the bill, 249 of which were moved by One Nation. The other eight amendments were moved by The Greens and the Shooters, Fishers and Farmers. Some media reports suggested that the sheer number of amendments moved by One Nation  were designed to prevent the bill from passing before the end of the sitting year, referring to the fact that debate on the amendments would take at least 83 hours.

Over the next three sitting days, the Leader of the House (Minister Tudehope) moved a number of  instructions to committee, a procedural motion that allows the House to either apply special rules to committee of the whole or expand the committee’s power. The most significant of these instructions were moved when the House resumed debate in committee at 2.00am on the morning of Wednesday 25 November. Having just concluded almost 12 hours of debate on the Appropriation Bills (discussed below) and with over 200 amendments to the Electricity Bill still to be considered, Mr Tudehope described the instructions as being designed to ‘create a smooth running of committee of the whole’. They included a prohibition on the introduction of further amendments, as well as reducing the time the division bell was rung between successive divisions.

Members of the House engaged in vigorous debate each time such instructions were moved. Mr Latham described them at various points as a ‘guillotine’ and stressed the rights of members to be heard in debate, but other members argued that the instructions simply made the division process more orderly and efficient, as the right of members to speak to any amendment remained unaffected. Various members alluded to the events of 2011, where the House sat for four days considering the Industrial Relations Amendment (Public Sector Conditions Of Employment) Bill 2011. This debate was the last time the closure motion, or ‘the gag’ was last used – something members in this debate were adamant to avoid. Standing Order 99 for the closure of debate was not moved at any time during consideration of the Electricity Infrastructure Investment Bill 2020.

Ultimately, amendments to the bill were debated in committee for over 30 hours, with the House finally rising at 7.30pm on Wednesday 25 November. In a nutshell, the One Nation amendments sought to limit the amount of ministerial discretion provided for by the bill,  to address concerns about the future employment of people currently employed in the energy and mining industries as well as to establish minimum levels of guaranteed power supply. Of the 257 amendments debated, two of those moved by Mr Shoebridge (The Greens) were agreed to. The first sought to expand the objects of the Act to increase employment and income opportunities for Aboriginal and Torres Strait Islander people in New South Wales, and to promote consultation and negotiation with the traditional Aboriginal owners of land on which generation, storage and network infrastructure is proposed to be constructed. The second sought to require the creation of guidelines for the purposes of increasing employment and income opportunities for local Aboriginal communities. The Shooters, Fishers and Farmers also sought to amend the objects of the bill, as well as to require greater consultation and reporting by the Minister. These amendments were negatived on division, (4 ayes to 21 noes) with the Shooters, Fishers and Farmers and One Nation voting in favour.

Following conclusion of committee of the whole, the House agreed to the third reading of the bill on division, 27 ayes to 4 noes, with One Nation and the Shooters, Fishers and Farmers voting in the negative. The bill was returned to the Legislative Assembly for their consideration of the amendments and, following the concurrence of the LA with the amendments on Friday, was sent to the Governor for assent.

Appropriation Bills

The Appropriation Bills, provide for the annual appropriation of funds as part of the NSW Budget. The Appropriation Bill 2020 seeks to appropriate around $103 billion from the Consolidated Fund for various public service departments and independent offices for 2020-21. The Appropriation (Parliament) Bill 2020 seeks to make an appropriation of just under $197 million from the Consolidated Fund for the purposes of funding NSW Parliament, including recurrent services, capital works and services and debt repayment. This year, the Payroll Tax Amendment Bill 2020 was also included in the cognate bills and seeks to amend the Payroll Tax Act 2007 to provide a temporary reduction in the payroll tax rate until 30 June 2022, but it is not an appropriation bill.

Leading for the Opposition, Mr Secord (Labor) said that with a $16 billion deficit forecast for the 2020-21 Budget, the Government’s statement of a return to surplus within five years was ‘wildly optimistic’. He also stated that other spending measures within the Budget, including on social housing, did not go far enough, whilst confirming the Opposition’s support for the payroll tax reductions contained with the Payroll Tax Amendment Bill 2020. Ms Boyd (The Greens) also gave her support for some measures contained within the budget, including the shift from stamp duty to an annual property tax, whilst calling on the Government to do more in areas such as homelessness. Mr Borsak spoke to the Payroll Tax Amendment Bill 2020, noting his intention to move amendments in committee of the whole.

In committee of the whole, amendments were moved to both the Appropriation (Parliament) Bill 2020 and Payroll Tax Amendment Bill 2020. The first set of amendments, moved by Mr Shoebridge (The Greens) to the Appropriation (Parliament) Bill 2020 sought to include an additional appropriation of $7.3 million to the Independent Commission Against Corruption (ICAC). This appropriation was separate to that included in the Appropriation Bill 2020 and according to Mr Shoebridge, represented the funding that has been taken from the ICAC over past years. The Opposition and crossbench supported the amendments, while the Government did not support the amendments on the basis that it was still considering the findings of a report by the Auditor-General on the funding for independent agencies such as ICAC, as well as for constitutional reasons (discussed below). The amendments were agreed to on division (24 ayes to 16 noes), with Government members opposing them, and all other members voting in support. Of significance, this was the first time the Council had ever agreed to amendments to the annual Appropriation (Parliament) Bill. Prior to this, the closest it had come was in 1996, when the Council made ‘suggested amendments’ to the Appropriation (Parliament) Bill 1996.

Mr Latham (One Nation) also moved amendments to the Appropriation (Parliament) Bill 2020. Paragraph 1 of his amendments sought to make 2020-21 the last financial year in which the quantum and timing of funding of the NSW Legislative Council would be determined by the Executive Government. Paragraph 2 sought to require that new funding arrangements for the Council be approved by a committee comprising the Presiding Officers and party leaders (including a representative nominated by the Greens) of the NSW Legislative Council. On the motion of Mr Searle, these amendments were amended to delete paragraph 1, remove reference to these changes needing to be implemented by the 2021-22 NSW Budget, and to include a member of the Animal Justice Party on the proposed committee. Mr Searle’s motion was agreed to on the voices, with Mr Latham’s amended amendment being agreed to on division, the Government and Reverend Nile opposing it.

Mr Borsak (Shooters, Fishers and Farmers) moved two amendments to the Payroll Tax Amendment Bill 2020, which sought to exempt regional employers paying between $1.2 – $10 million in taxable wages each financial year from the requirement to pay payroll tax. Mr Borsak said that the current payroll tax arrangements were ‘brutal’ on regional employers and put an unnecessary financial burden on already stressed businesses, which the proposed amendments would remove. The amendments were negatived on division (7 votes to 33), with One Nation, Shooters, Fishers and Farmers and The Greens voting in favour and the Government and Opposition opposing them.

Mr Latham (One Nation) also moved amendments, seeking to make permanent the reduction in payroll tax, rather than having the reduction cease on 30 June 2022. He also proposed a number of amendments relating to the regulation-making power of the Governor regarding Special Activation Precincts, and Payroll Tax Concession Zones. All the amendments were negatived on division, with all members except One Nation and the Shooters, Fishers and Farmers opposing them.

Following the third reading of the bills, the unamended Appropriation Bill 2020 and Payroll Tax Amendment Bill 2020 and amended Appropriation (Parliament) Bill 2020 were returned to the Legislative Assembly. For reasons of comity, the House in Review blog avoids describing proceedings in the Legislative Assembly. However, for those interested in what happened in the Legislative Assembly on Friday, here is a link to the transcript of the debate on the Council amendments, and tabled legal advices.

The constitutional significance of the process is notable for a number of reasons and will be documented in a future blog post, which will look at the powers of each of the Houses with respect to money bills. We’ll also discuss a number of other significant and unusual procedures use this week, including an attempt by Mr Latham to request that an Assembly minister take part in Council debate on the Electricity Bill. Stay tuned for those posts in coming weeks!