The Supreme Court of Western Australia, in a 4-1 decision delivered on October 11, ruled unlawful Labor’s attempt to change the rules for electoral distribution in Western Australia.
Under the existing electoral legislation the Legislative Assembly is made up of representatives each elected from one of 57 electorates. 34 of these are in the Perth metropolitan area and the remaining 23 are in country Western Australia. Under Labor’s redistribution plan the number of country electorates would have been almost halved to just 12 seats, while the metropolitan electorates would have been increased to 45.
Labor justifies this redistribution plan on the basis of “one vote, one value”. Attorney-General Jim McGinty has a near obsession with this, having brought and lost in the High Court, a challenge to the existing electoral laws. Opponents point to the lack of effective representation of rural and regional communities under Labor’s plan.
Labor originally also wished to apply the “one vote, one value” rule to a redistribution for the Legislative Council electoral regions. However, in order to secure the support of the five sitting Greens Members, Labor agreed to abandon this principle in favour of more moderate changes that retain disproportionate representation for country electors.
The difficulty Labor faced in achieving its plan lay in a constitutional provision in the Electoral Distribution Act 1947 which, in Section 13, requires an absolute majority in both the Legislative Assembly and the Legislative Council to concur with any bill amending that Act for it to be lawful to present such a bill for the Royal Assent.
Labor and the Greens together have 18 members in the 34 seat Legislative Council. However, Labor supplies the President who cannot exercise a vote except in the event of a tie. Consequently, while Labor and the Greens command a simple majority of 17-16, they cannot attain the absolute majority (18 out of 34) needed to amend the Electoral Distribution Act 1947.
In an attempt to circumvent this difficulty Labor resorted to a dubious procedural mechanism. They introduced and passed (in the Legislative Council by a simple majority only) two bills. The first bill, the Electoral Distribution Repeal Bill 2002, was designed simply to repeal the Electoral Distribution Act 1947 in its entirety. The second bill, the Electoral Amendment Bill 2002, would re-enact most of the repealed Electoral Distribution Act 1947 along with Labor’s new plan for electoral distribution.
After the passage of these bills, but before they were presented to the Governor for the Royal Assent, the Clerk of the Parliaments, Laurie Marquet, sought a ruling from the Supreme Court of Western Australia on whether it would be lawful for him to present these bills to the Governor. The Court heard the case in April 2002.
The lawfulness of the bills was defended by Attorney-General Jim McGinty. The Liberal, National and One Nation parties along with the South West Regional Council, the Western Australian Farmers’ Federation and the Pastoralists and Graziers’ Association intervened as amici curiae to argue against the lawfulness of the bills.
Chief Justice David Malcolm, one of a 4-1 majority, stated that “When an Act is repealed and re-enacted with amendments, as a matter of form, there may not have been an amendment of the former Act because it had been repealed. As a matter of substance, however, it had only been amended.”
Essentially, the majority held the view that the Government’s attempt to bypass the constitutional restraints on amendments to the Electoral Distribution Act 1947 was unconstitutional.
Mr McGinty has refused to accept this verdict as the end of the road for his electoral redistribution plans.
He has now revived an earlier approach – rejected at the time by the Greens – of first amending Section 14 of the Constitution Act Amendment Act 1889, which only allows the President of the Legislative Council a vote in the event of a tied vote.
If the Greens agree to support McGinty this time around, then this would enable President John Cowdell to vote for the bill to change the electoral laws, thus securing an absolute majority of 18 out of 34 votes.
However, this proposal is likely to face a similar challenge in the Supreme Court. Section 73 of the Constitution Act 1889 requires an absolute majority for any bill changing the constitution of the Legislative Council to be lawful.
The outcome of Labor’s increasingly desperate and arrogant attempts to secure its electoral reform agenda has significant implications for the next election in Western Australia, due to be held in February 2005.
The 2002 electoral redistribution process, which had been put on hold pending the Supreme Court decision, is now still on hold while the Electoral Distribution Commissioners consider the implications of the Government’s latest plan.
However, an electoral redistribution – under either the existing legislation or the Government’s new legislation – takes six months to complete.
The Commissioners may not be able to wait until it is clear whether the Government’s latest attempt at electoral reform can overcome the political and judicial obstacles it faces.
Labor holds 24 metropolitan seats compared to 7 held by the Liberals. However, the Liberal and National Parties hold 14 country seats compared to 8 held by the ALP. (Three metropolitan and one country seat are held by Independents.)
A halving of country electorates will make it much easier for the Gallop Labor Government to win a second term while compelling sitting Liberals and Nationals to compete for pre-selection in a reduced number of country seats.
- Richard Egan