And while the ALP will be left significantly out of pocket, taxpayers are still likely to bear some of the brunt for the court action, with the Boundaries Commission opting to pay its own legal costs for attending the hearings.
Labor launched a historic appeal against the final report of the Electoral Districts Boundaries Commission, arguing the redraw fundamentally abandoned the ‘one vote, one value’ principle “that the number of voters in each electorate should be equal”.
But the appeal was rejected in March by the full bench of the Supreme Court headed by chief justice Chris Kourakis, with the ALP subsequently abandoning a mooted High Court challenge.
But the fallout from its last-ditch bid to thwart the electoral redraw continues to reverberate, with the Supreme Court finding Labor liable for the Liberals’ costs – expected to spiral into the tens of thousands of dollars, and possibly more than $100,000.
In conjunction with its own legal costs, the financial hit will punch a significant hole in the ALP’s election war chest, with the next state poll looming in 10 months.
It’s also a bitter political blow, with the court’s judgement effectively accusing Labor of pursuing the appeal out of partisan self-interest, rather than public interest.
The party had argued the appeal was a “test case” for how future commissions interpreted the laws governing how electoral boundaries are set.
But the court determined “the appellant’s primary consideration was not to settle how future Commissions might interpret… the constitution act”.
“The appellant’s primary concern… was having the Commission’s orders quashed so that more favourable boundaries would be drawn and consequentially the Labor Party would have an increased chance of winning the next election,” the judgement said.
“The major political parties in this state… engage in election campaigns funded by substantial grants of public money and substantial private donations.
“In the South Australian political environment, the major parties are likely to take opposing views of the ‘fairness’ of an electoral redistribution.
“The party which is negatively affected by the redistribution has an interest in appealing against the order of the Commission and the other party has an interest in defending that appeal… that is how the interests of the parties fell in the present appeal.”
The Liberal Party joined the action to oppose Labor’s case, with the ALP arguing it was not liable for costs “on the ground that the appeal was in the nature of a test case”.
But the court found the appeal “does not fall within the category of a test case”.
“In the present case the protagonists were representatives of major political parties, who were well aware that ultimately an adverse costs order might be made,” the court determined.
“Particularly taking into account the conduct of the parties, there is no reason to depart from the general rule that costs follow the event.”
The court believed Labor’s appeal had been argued on public interest grounds, rather than as a legal test case. However it noted that Labor, in its submissions on costs, “eschewed suggesting that the appeal was a public interest case”.
“The forensic reality is that the Liberal and Labor parties were the principal adversaries before the commission – just as they will be the major political opponents and contenders for government in the next election,” the court said.
While Labor licks its wounds, taxpayers will not escape some of the financial impact, with the publicly-funded Boundaries Commission itself – which was bound to appear in court as “first respondent” and the subject of Labor’s legal action – making no application for its costs to be recovered.
Acting electoral commissioner and EDBC commissioner David Gully told InDaily the commission “was required to be the respondent to the appeal under… the Constitution Act”.
The EDBC did not seek to represent a position in the matter under the Hardiman Principle, which holds that tribunals and decision-makers may be restricted from acting as a full contradictor in review proceedings before a court, in case such a role could damage their impartiality in subsequent proceedings or dealings with the applicant.
“At the directions hearing the Chief Justice thought it would be expedient for the court to have counsel assisting the EDBC to be present and requested counsel’s attendance at the hearings to assist the court should it be necessary,” Gully said in a written statement.
“There is no estimate of the costs, given attendance by counsel assisting was at the request of the Chief Justice.”
Labor state secretary Reggie Martin did not comment, but InDaily understands the decision took many in the party by surprise.
Liberal Party state director Sascha Meldrum would not speculate on the party’s likely legal bill, saying costs “are being assessed”.
“For the first time in many years the new boundaries ensure that either party can win Government by achieving a majority two-party preferred vote of 50 per cent plus one vote,” she said.
“This is a fair outcome for all South Australians.”
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