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McGinty looks for value in vote reform

LAST month’s three-day Supreme Court hearing – Marquet v The Attorney General of WA & Another – now being considered by five judges, may well be seen by politicians as historic.

Undoubtedly so if just three judges give the nod to Attorney General and Electoral Affairs Mini-ster Jim McGinty’s ploy of teaming up with the Upper House Greens and voting 17-16 (simple majority) to pass electoral legislation their conservative opponents argue is unconstitutional because the vote wasn’t 18-16, an absolute majority.

It’s the absence of that crucial 18th vote around which everything hinges.

That, however, doesn’t overly worry Mr McGinty since he’s spent years campaigning for passage of one-vote-one-value legislation.

Before him there were two other Labor crusaders – former Electoral Affairs Ministers Arthur Tonkin and Mal Bryce, both of whom gave this issue their best shot during the 1980s.

Interestingly, Labor’s 1978 State Conference even considered going to the International Court of Justice in The Hague, Holland, the principal judicial organ of the United Nations, to compel WA’s Parliament to adopt Labor’s formula.

This search for a forum beyond the WA Parliament, to force its hand, is such a strong Labor article of faith that Mr McGinty, while Labor leader, pushed caucus into backing his plan of launching a case in the High Court of Australia in 1995, which he lost.

Expending all this time, energy, and money shows how much hinges on the coming Supreme Court decision.

Most assume only one of two outcomes is possible – the court backing Mr McGinty, or rejecting the way he and the Greens went about evading the absolute majority (18 votes) to push their legislation through.

If the former, Mr McGinty would immediately instruct the Electoral Commission to draw up new Lower House boundaries that transfer eight bush seats into the city.

In addition, he’d create two extra Upper House seats, boosting numbers there from 34 to 36, because the Greens backed Mr McGinty’s Lower House package on condition he agreed to this, hoping to boost their chances at the next election.

The other possible outcome is that the court rules the McGinty-Greens move of passing the legislation by simple majority – 17, not 18, votes – invalid.

That would set back Mr McGinty and perhaps opening moves for a High Court appeal.

However, what few seem to have considered is a possible third outcome – the judges handing down neither above judgements.

They could simply say their court wasn’t the proper venue to decide the validity or otherwise of legislation that’s not yet proclaimed by the Governor-in-Council, the crucial moment when bills become law.

Parliament passes legislation, which is then proclaimed, and anyone querying its legality can challenge, in court, the law, not a bill.

The court is not approached while legislation is mid-stream – between Parliament and Government House – before a governor proclaims bills, making them law.

In the present case, however, the McGinty-Greens axis involves premature use of the court since the Greens also told Mr McGinty they’d back him as long as the legislation was adjudicated by the court before proclamation.

Clearly, they were concerned about the validity of using just a simple majority, the 17 votes.

The Clerk of the Parliaments, Laurie Marquet, also had heartburn.

So much so that, while the McGinty-Green wheeling and dealing was under way, he revealed he wouldn’t present the legislation to Government House for proclamation, demonstrating his extraordinary powers over parliamentarians.

It was during this that the idea of using the Court as an umpire before the legislation was proclaimed appears to have been hatched.

With Mr McGinty so desperate to win, he accepted that consequence.

But the court may not appreciate being dragged into a bitter high level political brawl over legislation that’s not yet law, which is precisely what the McGinty-Greens alliance does.

Perhaps a hint of the court’s displeasure was revealed on day one of the case when Judge Steytler pointedly said: “Does that mean that every time at which the Clerk of the Parliament thinks that there may be some question as to the validity of legislation he is going to come down here and ask us what we think about it?”

There’s nothing stopping Judge Steytler and his four colleagues – only three are required – from returning the matter to the Upper House, telling it to work out its own procedures before bothering the court. And only after the legislation is proclaimed would the court be willing to adjudicate on the legislation’s legality, as normally occurs.

That would leave the Greens and Mr McGinty, and Mr Marquet for that matter, in an almighty quandary, precisely where Mr McGinty found himself after having failed to get the ruling he so desperately wanted in 1994.

Perhaps Mr Marquet will come to their rescue by pressing ahead to the High Court in Canberra.

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