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SA's electoral fairness under threat


South Australia’s state election results in 2018 finally reflected the electorate’s will, but that new-found fairness is already under threat, writes legal commentator and Liberal Party legal adviser Morry Bailes.

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The 2018 state election was the fairest contest between the two major political parties and truest reflection of the will of South Australians in perhaps 40 years, thanks to a landmark ruling by the Supreme Court.

The case altered electoral boundaries more radically than ever before and reshaped the constituency of our parliament.

As a lawyer, I have been involved in many interesting cases over my decades of practice, but my part in this matter sticks in the memory because of its implications in law and for our society.

However, our newfound electoral fairness is again under threat after just one election.

It all started with the outcome of the “unlosable election” of 2014, when, well, the Liberal Party lost. It lost despite achieving more than 53 per cent of the statewide two-party preferred vote.

There is no such thing as a universal swing in voting trends, so in a sense, a two-party preferred assessment of any election might not tell the whole story.

But were the ALP really as good at campaigning as they claimed? Were those boundaries really fair, particularly as we had expressly placed in our State Constitution Act a “fairness clause” that required election after election to be decided according to the popular statewide two-party preferred vote?

I smelt a rat. There is something about being a lawyer that gives us an inbuilt “unfairness detector”, even though sometimes in law we haven’t yet worked out why.

So I started to act, briefing senior counsel Tom Duggan QC and junior counsel Josh Teague (now a member of parliament).

It began a fascinating journey that is now a matter of public record. The case started life in the Electoral Boundaries Commission and ended up before the Full Court of the Supreme Court in an appeal presided over by our Chief Justice, who sat at a bench of five judges of our Supreme Court.

The ALP’s argument centred on the notion of “one vote, one value”, which Labor argued meant electorates should have a slavishly equal number of voters, even if that resulted in election outcomes contrary to the popular vote.

On that test, the only way to kick a goal would be precisely through the centre. As Eddie Betts demonstrates better than any, a goal is a goal anywhere between the big sticks.

Moreover, the major problem with that approach was that, put simply, it was producing election after election with an unfair outcome.

This gerrymander was enabling the ALP to form government, when consistently they were losing the two-party preferred vote – in 2014, by a lot.

The Electoral Boundaries Commission comprises a senior Presiding Judicial member who is always the Senior Puisne Judge of the Supreme Court, on this occasion Justice Vanstone, the Electoral Commissioner and Surveyor-General of the day.

The argument they were considering came down to the methodology that had been consistently employed by the Electoral Commission and whether it fulfilled the fairness test set out in the Constitution Act.

In short, it did not.

One example of the error in approach by the Electoral Commission was its consistent disinclination to move the population of an electoral seat up or down within the allowable tolerance of 10 per cent, as provided for in the Constitution Act.

This resulted in a redistribution before the 2014 election of only 89,000 people – far too few to bring about a fair result.

Because of the boundaries case, the redistribution before the 2018 election affected closer to 400,000 people – the largest shift in state history.

The ALP appealed against the outcome. The Full Court of the Supreme Court, in a unanimous judgement of five judges (a Full Court usually comprises three), upheld the decision of the Electoral Boundaries Commission and the scene was set for the first truly fair elections in South Australia for decades.

You might think the rest is history, but it is not.

Late in the last term of the Labor State Government and late in a parliamentary sitting, the ALP, with support of crossbenchers, snuck through an amendment to the Constitution Act.

Yes, you guessed it, they repealed the fairness clause.

How, you may ask, is a state constitution amended without the knowledge or input of the people? Because in South Australia our constitution is an Act of Parliament. The same could not happen to the federal constitution. That requires a referendum.

In 2020, two years out from the next state election, the Electoral Boundaries Commission will once more convene hearings and a redistribution of boundaries will happen again, as it always must.

But presently, for the first time in a very long time, there is no fairness clause.

At the heart of the decision of the Full Court, as a point of statutory interpretation, sat the fairness clause. What will happen now, with that repealed?

My declaration is not only that I acted in this matter, but that I am a Liberal Party member.

However, those things aside, I am a South Australian and I want the government that we, the people, vote for.

I want fair, not unfair, elections.

What is at stake here is our future as a state – and the will of the people should not be thwarted.

Morry Bailes is managing partner of Tindall Gask Bentley Lawyers and immediate past president of the Law Council of Australia. He is a member of the Liberal Party.

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