McGinty’s hoping its third time lucky in electoral reform stakes

ELECTORAL Affairs Minister Jim McGinty’s fingers are tightly crossed – hoping 13 becomes his lucky number.

He desperately needs to deliver on the electoral reform front, otherwise his caucus colleagues will see him as “three-time loser Jim”.

If that happened, Labor’s other powerbroker, former Premier Brian Burke, with key caucus backers, could move to trim his ominous behind-the-scenes factional manoeuvrings.

Ever since Mr McGinty’s undergraduate days – when he wholeheartedly embraced Jim Cairns-style ideological outlooks – he’s been emotionally wedded to electoral change that reflected the one-vote-one-value formula.

Not surprisingly, on be-coming party leader in 1994, he coaxed caucus into challenging WA’s electoral legislation in the High Court.

Before launching that move, caucus was told members wouldn’t be bankrolling it, as the fighting fund was flush.

But he badly miscalculated and, with costs awarded against him, a grim Mr McGinty had to tell Labor colleagues each was up for $5000.

Understandably he wasn’t too popular, which may explain why Geoff Gallop replaced him in October 1996.

Interestingly, before Mr McGinty said he’d pass the hat around he asked the Liberal Government to meet his High Court costs, but was denied the cash.

Six years later, as a cabinet member, Mr McGinty understandably ensured he was allocated electoral affairs.

The easy part was drawing-up boundaries to scrap eight Lower House bush seats and allocate them into the metropolitan area to realise his one-vote-one-value dream.

The hard part is getting them through the Upper House and honoring Section 13 of the 1947 Electoral Distribution Act, which reads: “It shall not be lawful to present to the Governor for Her Majesty’s assent any Bill to amend this Act, unless . . . [it] has been passed with the concurrence of an absolute majority of . . . the Legislative Council . . .”

In that chamber Labor has 13 members (there’s that number again) with the Greens holding five, so 18 in a total of 34, an absolute majority – half plus one.

But Labor had to provide the Upper House’s president, so their votes on the floor slipped to 17, a simple majority.

So, think, ponder, contemplate – and whacko, some bright spark surfaced with the idea of scrapping the 1947 Act, putting its redistribution provisions into another Act and leaving Section 13’s “absolute majority” provision right out.

Moreover, all WA’s electoral Acts and their amendments have passed with absolute majorities.

The 16 Liberals, Nationals, and One Nationers, naturally cried foul, saying this was unconstitutional.

Even the Greens were worried, as was the Clerk of the Parliaments, Laurie Marquet, so it was agreed all-round Mr McGinty’s ploy should be tested in the Supreme Court before this Bill was taken to Governor Sanderson.

In two lead-up Supreme Court hearings Justice John McKechnie quickly encountered the prickly issue of who pays for this expensive legalistic escapade, especially if costs were awarded against those opposing Mr McGinty – as happened to him and his caucus colleagues in 1996.

Because the issue, which the Opposition stresses was sparked by Mr McGinty setting out to evade Section 13, not them, they contend the Government should pay or at least waive costs should its challenge fail.

But Mr McGinty disagrees and has dug his toes in deeply against any paying formula.


The answer is found in a caustic letter he recently wrote to Opposition frontbencher Dan Sullivan: “Your request is unprecedented,” it says.

“There has not been a case in which the government has provided funding to a party who sought to challenge the validity of government legislation.

“When your party was in government, you rejected a similar request and also required the (then) Opposition to pay your costs when the validity of the State’s electoral laws was being questioned in the court.

“I sense a touch of hypocrisy in your current application.

“It is inappropriate for you to seek to burden the taxpayer in the manner you propose.”

He’s certainly not forgiven, or forgotten, 1996.

But he struck a snag last Friday.

Justice McKechnie raised the famous 1982 Wilsmore Case, in which the then Liberal Government funded a challenger, since it had constitutional implications.

Opposition lawyer, Liberal MLC Peter Foss, argued that Section 13 was in the same big league, so either public funding or waiving costs was warranted.

So Mr McGinty’s off to a shaky start.

His taxpayer-funded lawyers, and the Opposition’s, face Justice McKechnie again on February 15 for a decision on whether matters proceed to a Full Court hearing.

Soon after we’ll learn if Mr McGinty’s by-passing of Section 13 goes the way of his 1996 High Court challenge – after which he was toppled as Labor leader – or if he delivers one-vote-one-value, something Brian Burke failed to do as Premier and in his own Supreme Court challenge in 1982.

Who knows? Even a High Court appeal may follow.

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