Hillary’s comments about the “one vote one value” case in WA prompted this stunner of a reply that highlights the political chicanery behind the case. It’s a stunning case of buck-passing and blame-shifting, with a twist of public servants acting ultra vires for good measure.

Section 13 of the 1947 Electoral Distribution Act says that the Act may not be amended without an absolute majority. It has been saying this in its various incarnations since 1904 (since 1889, some would claim). The Labor government, together with the Greens, has only a simple majority in the Legislative Council so they thought up a trick. Section 13 talks about “amend”; it doesn’t mention “repeal”. Using their simple majority in the upper house Labor and Greens “passed” a bill to repeal the whole 1947 Act and then “passed” another bill to reintroduce most of the same measures along with one vote one value for the lower house. The argument in court was about this trick. It didn’t seem to wash with at least some of Their Honours and if they hand down a judgement, I think the government will lose and the amici will win.

It won’t be the plaintiff (Laurie Marquet, the clerk of parliaments who refused to submit the bills for royal assent) who will win although his surmise that it was a try-on will be vindicated. He said he was just there to clarify the legality, a plaintiff who officially doesn’t care which way the judgement falls. If there is a judgement. Their Honours wanted to know what they were doing interfering in the legislative process. Steytler J: “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?” The answer from the amici’s QC (but it could have been any of them) was a dodge (transcript page 102, at http://www.supremecourt.wa.gov.au/transcripts/index.htm). The bald fact is that the clerk stopped legislation in its tracks by refusing to submit it for royal assent and it would appear that he can command the Supreme Court. All on his own account. Presumably this would apply to any parliament in Australia.

One vote one value legislation is proper but it is not proper for the parliament to break the law to “pass” it through parliament. It is also not proper that a civil servant have the power to prevent the parliament from making law.

When the two bills came to the upper house, it set up a committee which turned for advice to the upper house clerk who told them that if they passed the bills with a simple majority he would put on his other hat – the clerk of parliaments – and refuse to present them for royal assent and instead require the Supreme Court to assess it. Were our elected politicians outraged that an appointed official could prevent legislation becoming law? Did they demand to know by what right he was rendering the parliament irrelevant? Did they ask in whose name he was intervening? Not a peep out of them.

On the contrary – they sighed with relief. They knew they were contemplating something devious and the clerk’s intervention relieved them of responsibility for it. If someone else is going to make your decision for you, there’s no point your concerning yourself – all you need do is take a position and let the Greater Authority carry the can. The clerk had become a pivotal political player and both Greens and Labor could relax. The Labor President of the Council explicitly refused to make any ruling on the validity of the simple majority vote. For a century, and on dozens of occasions, presidents and speakers in WA had ruled that an absolute majority was required for significant electoral change.

All the parties colluded in this abdication of responsibility. The conservatives (the Liberal, National and One Nation pollies who want to preserve the rural malapportionment) thought it would be better, as amici, to help spike the legislative process before the law is proclaimed. They wanted two wrongs to make a right. The Greens knew they were being wicked and wanted big daddy, the Supreme Court, to take the responsibility. Labor blustered that they had legal advice saying the simple majority was legitimate (though obviously the President of the Council did not believe it) but really saw nothing to lose by giving it a burl – it might come off and if it did they’d have official sanction. An added advantage was that the court action would stress the finances of the Liberals whereas its defence would cost Labor nothing, being met by the taxpayers. (Attorney General Jim McGinty lost a High Court case over one vote one value in 1995 when he was in Opposition and had to pass the hat around in caucus.)

Who is this mighty clerk of parliaments? Who does he answer to? In the case of the clerks of the upper and lower houses, no one knows who their employer is but their boss is clear: it is the president or speaker. In the case of the clerk of parliaments, both employer and boss is a mystery.

Is his boss the parliament? Perhaps – since it is the parliament’s standing orders which decree that the clerk of parliaments is the person who shall deliver bills to the governor for assent. If so, we now have the ludicrous situation of the parliament “passing” laws and then taking itself to court to see whether it was allowed to do it. There exist no instructions from WA parliament authorising its clerk’s present action. He has no authorisation from anyone. It costs money to go to the Supreme Court. Who authorised the expenditure?

Is his boss the crown? A basis for this is that the “governor in council” would be the agency which could sack the clerk of parliaments. This would mean that the crown is refusing to give royal assent to legislation. The governor is withholding his assent! The fight between the crown and parliament was settled over 300 years ago when the crown agreed, in the 1689 Bill of Rights, “That the pretended power of suspending of laws, or the execution of laws, by regal authority, without consent of parliament, is illegal.” This parliament has not consented to regal suspension or execution – though the politicians have given the clerk a nod and a wink.

So either the parliament is taking itself to court or the crown is in breach of the 1689 Bill of Rights. In the clerk of parliaments we have, apparently, an employerless, bossless civil servant. Perhaps he should be retitled as Lord Protector.

Since there was no one before the Supreme Court to argue that the matter was not within the court’s jurisdiction, none of the above was considered. Everyone just fell into line following the clerk’s agenda. Nobody asked why the WA Government was acting as defendant. Surely it was the parliament, not the government whose law had been vetoed by the clerk? There is a distinction between parliament and government (isn’t there?) and the clerk had done nothing to the government. This parliament has behaved as if it is a bystander in the legislative process.

The five judges listened to the two QCs’ submissions for two and a half days so the pressure is on for them to give an answer. If they do, whatever it is, it will give a green light to Australian politicians: “Never mind the rules: ‘pass’ whatever you think you might get away with. Providing it is outrageous enough, the clerk will try to get the court to sanction it for you.”

What if the judges think it inappropriate for the court to meddle with the legislative process, and decline to make any directive? Then the clerk will take it to the High Court. (What else can he do?) And then if the High Court refuses to touch it we will have a stand-off between, er, someone or other, and the parliament. Will the Lord Protector back down? Will the parliament find some way it can retrospectively behave responsibly? Or will we have to resume the Civil War?

Why on earth didn’t the clerk present the bills for assent so that the amici parties could be a proper plaintiff and simply challenge their constitutionality? That would be normal and the court would not then be interfering in the legislative process and both sides would have been free to appeal. Their Honours asked this question and the reply consisted of two things: that the clerk might get into trouble for presenting a bill to the governor which was not passed properly, and that the matter was urgent because the Electoral Commission needs to get on with a redistribution. The first is rubbish. The second is wrong since the clerk could have obtained the governor’s signature in a day and a court objection could have been immediately lodged. As it was, it took several months and two preliminary hearings before the court finally agreed to hear the matter.

The Liberal et al strategy of appearing as amici may have been a colossal blunder, because amici have no appeal and if the government wins they’re sunk. If the Liberals had argued at the preliminary hearings against the Supreme Court participating, the court would probably not have heard the case since it would have been looking at a plaintiff who had no complaint and sought no relief, and at a defendant who had nothing to defend against. As it was, at the two preliminary hearings the judge commented on the peculiar situation but the feisty presence of the amici at least provided an adversarial contest. Had there been only a fake plaintiff and a willing defendant it would have been so flagrantly a request for advice that the court would surely declined its services. The Liberals have spent an alleged $150 000 to: (a) achieve nationwide notoriety as undemocratic opposers of one vote one value; (b) provide the government the opportunity to obtain Supreme Court endorsement for its devious parliamentary ploy and, (c) limit themselves to a single shot.

There are a number of ironies in this tale.

One irony concerns Green mendacity. The Greens are all in the upper house. It is the upper house is where the serious malapportionment is: each country vote is worth three city votes. Greens policy, if that is not an oxymoron, is for one vote one value. So McGinty offered it to them. But what no one realised was that the Greens want one vote one value on Mars. We’d all thought they meant planet Earth. They not only declined McG’s offer but insisted that they would only permit him to bring in one vote one value for the lower house if he modified the upper house system to reinforce its 3 to 1 rural malapportionment and redesigned its districts to Green taste, including expanding the upper house by two members. McG complied. The result is that his plan for the lower house is one to which no democrat can object while his plan for the upper house is chicanery.

A second irony is that the whole “simple majority” kafuffle was unnecessary. There are 5 Green MLCs and 13 Labor MLCs which would make an absolute majority but for a rule that the President, who is Labor, does not get a vote. However this voting rule could be changed and it could be changed with a simple majority. Labor suggested this a year ago but the Greens refused. It would have allowed Greens and Labor to legally pass anything the Greens liked. What the Greens were thinking (if that is not an oxymoron) no one, including themselves, can say. The Liberals were amazed and delighted. It left only one way to build an absolute majority: Liberals plus Labor. There is speculation that this will happen, as it did in Tasmania, and they will wipe the Greens out, as they did in Tasmania.

Another other irony is that the planned Greenmander in the upper house is itself mostly a delusion, a result of the Greens inability, foreshadowed above, to think straight. Having the country enjoying three times the voting power of the city does not help the Greens Party. Greens are elected by urban voters. Increasing the number of MLCs lowers the quota which would help Greens however they negated this advantage by demanding McGinty rearrange the PR districts so each has an even number (6) of members. At present they are all odd (5 and 7). It is a quirk of Australian PR systems that, in general, 5 members is more favourable for minor parties, than 6.

The inability to think straight is not an exclusively Green prerogative. The Liberal fight against one vote one value is itself misplaced. Rural malapportionment helps Nationals and One Nation, rather than Liberals. Indeed, removing it would pretty much liquidate the Liberals’ most despised enemy, the National Party, and give the Liberals the chance to govern alone. Many in the party know this but the WA Liberal Party cannot overcome the personal self-interest of some of its country members. They like their small electorates. This policy paralysis has gone on for decades. In 1987 it cost the Liberals their century-long domination of the upper house – and let the Greens into parliament.

In Australia we are still learning how to run parliaments with minor parties holding balance of power, it being only 22 years since this began with the Democrats in the federal Senate. In WA minors held it for the first time in 1997. The present WA Legislative Council would be only the third time Greens anywhere have held the balance – after the Gumnut Twins period in Canberra, and the Christine Milne et al period in Tasmania. If the system survives it will take a generation or two to settle down.

That the politicians are out of their comfort zone does not excuse. There’s no honour to any of the elected politicians in this story. They have all acted improperly. An arbitrary and unaccountable veto power has been exercised over the parliament by an appointed official and the people’s elected so-called representatives have not merely acquiesced but welcomed it. The bottom line is that the representatives are representing themselves and in their squalid fight to manipulate the electoral system for relative advantage, the prerogatives of the parliament are of no account.

Long live the Glorious Revolution.

Peter Fray

Fetch your first 12 weeks for $12

Here at Crikey, we saw a mighty surge in subscribers throughout 2020. Your support has been nothing short of amazing — we couldn’t have got through this year like no other without you, our readers.

If you haven’t joined us yet, fetch your first 12 weeks for $12 and start 2021 with the journalism you need to navigate whatever lies ahead.

Peter Fray
Editor-in-chief of Crikey

JOIN NOW