Extract from Hansard
[ASSEMBLY - Thursday, 12 June 2008]
p3794b-3797a
Acting Speaker; Mr Christian Porter; Mr Max Trenorden; Mr Jim McGinty; Speaker
ELECTORAL AMENDMENT BILL 2008
Ruling by Acting Speaker
THE ACTING SPEAKER (Mr A.P. O’Gorman): Before we move on, I will give a ruling on the Electoral
Amendment Bill. I advise members that the Electoral Amendment Bill 2008 affects the one vote, one value
provisions in the Electoral Act 1907, specifically sections 16A and 16B. Section 16M of the Electoral Act 1907
provides that bills that amend those provisions require an absolute majority of the whole number of the members
of the house at the second and third reading stages. To be clear that an absolute majority has agreed to the bills, I
will call a division when the time comes to put the questions for the second and third readings of the bill.
Second Reading
Resumed from an earlier stage of the sitting.
MR C.C. PORTER (Murdoch) [3.13 pm]: Several comments have already been made about the issue of the
Chief Justice, and I will make a few more. It strikes me that what is required in a chairman or a chief executive
officer of the body that makes decisions about electoral boundaries is knowledge, skill and impartiality. In
particular, the type of knowledge that is needed is not narrow. Someone with a geographical knowledge—and a
broad one at that—a historical knowledge and to some extent a political historical knowledge of Western
Australia is needed. The skills that are involved are academic and legal. The third and most obvious issue is that
of impartiality. Members have expressed different views about whether it is or is not appropriate for the Chief
Justice to sit in that position. Obviously, the Chief Justice has taken a view. I must say that, for my part, in some
ways that is a sad decision. I know that the institution of his sitting in this position is, among the states, peculiar
to Western Australia. Is that correct?
Mr J.A. McGinty: Yes, that is right.
Mr C.C. PORTER: Nevertheless, in terms of what I see as those three requirements, the Chief Justice is in a
perfect position to exhibit those qualities. The qualities of knowledge and skill are obvious. With respect to
impartiality, although it is the case that a chief justice is substantively appointed by a government—whether it is
the government of the day or a previous government—it is a position of high import. The previous Chief Justices
of this state have demonstrated that, irrespective of the circumstances of appointment, we can, almost without
exception, expect impartiality from the Chief Justice of the day.
The Leader of the Opposition, the member for Vasse, has spoken about the opposition’s view on the breadth of
selection; that is, the category from which it is now proposed that the replacement for the Chief Justice be
chosen. It is extraordinarily wide. It has already been stated, but it is worth looking at again. It is proposed that
the replacement be chosen from the ranks of a judge or a retired judge of the Supreme Court, the District Court
or the Family Court of Western Australia or a retired judge of the Supreme Court of another state or territory or
of a commonwealth court. We on this side of the house argue that that is an extraordinarily large pool of
individuals from which a replacement might be chosen.
One of the excellent elements of the Chief Justice holding this position is that it does not in an immediate sense
allow the government of the day to pick and choose an electoral distribution commissioner. The government is in
effect bound by whoever is the Chief Justice of the day, whether that Chief Justice was appointed by that
government or a preceding government. The temptation for governments of any ilk to choose an individual who
may be, or might be perceived to be, conducive to the government of the day’s way of thinking on the drawing
of electoral boundaries would be enormous. In many respects, a model in which the individual who sits in this
position comes from a narrow category—that is, a category of one—is absolutely the most desirable situation. I
have provided suggestions to my colleagues about that. Perhaps the nominated person could be the longest
serving member of the Supreme Court or the President of the Court of Appeal. It should be an actual, singular
position so that in the immediate sense the government of the day does not have a pool of individuals from
whom to choose.
Ultimately, the opposition has considered that the best model in all the circumstances is to have a pool so that in
the absence of the Chief Justice from this position, a replacement can be chosen; however, that pool should be
substantially narrowed from that suggested by the government of the day. That is certainly a much better
position than the one that is promoted in the bill as it stands. Nevertheless, a great deal of caution should be
exercised, because whenever choice exists, there is always a temptation to choose someone whom it is perceived
will give a favourable hearing in the drawing of electoral boundaries, which obviously can have massive political
effect.
The categories promoted in this bill are far too broad for choosing an individual with knowledge, skill and
impartiality. They should be limited. It is hard to envisage someone who is from the commonwealth at large but
not from this state who would have the requisite geographical, historical and political knowledge peculiar to this
state that would be necessary for the role.
[1]
Extract from Hansard
[ASSEMBLY - Thursday, 12 June 2008]
p3794b-3797a
Acting Speaker; Mr Christian Porter; Mr Max Trenorden; Mr Jim McGinty; Speaker
I will not labour the point any further. From my particular tastes, it would be lovely if we could adopt a model
which is similar to the one we have at the moment, but which allows not only the Chief Justice, but also another
individual nominee of the Supreme Court or retired from the Supreme Court. In the absence of that possibility,
the narrowing of the range of candidates is the best option available.
MR M.W. TRENORDEN (Avon) [3.18 pm]: It is interesting when bills such as the Electoral Amendment Bill
2008 come forward for debate. This argument has been around for as long as I have been in Parliament.
Personally, I do not agree with the position put by the Chief Justice. I can understand why the Chief Justice
would make the comments and recommendations that he has. I also have to say I have the highest regard for the
Chief Justice. I have known him for some time. I had a small amount of personal contact with him and a larger
amount of professional contact with him before his appointment. I do not question his capacity or his decision-
making abilities. However, the hat that he wears as the Chief Justice is different from the hat that we wear as
politicians. The core issue for me is that we ensure that the provisions of the Electoral Act are just. Years ago,
during the term of a previous Labor government, a new person was appointed as Electoral Commissioner. There
was considerable rumour on this side of the house that that person was biased towards the Labor Party. I have no
idea whether or not that rumour was true. However, the point I make is that the effect that such rumours have on
the psyche of an opposition is important. If an opposition does not think that the process is balanced, the mental
attitude it takes into the contest is affected. The position of Chief Justice is of the highest order. The Chief
Justice has argued that he should not be one of the Electoral Distribution Commissioners. However, no-one
would question the Chief Justice’s ability to be totally impartial. There are questions about what will happen if
the Chief Justice has to sit in judgement when an electoral matter goes before court. That is a consideration.
It is a problem if the opposition of the day—it may not necessarily be the current opposition—believes that it
will be slightly disadvantaged because a particular person has been appointed to run the electoral system. I do
not support the bill. It provisions must be tightened. Perception in politics is everything. It is absolutely essential
that people do not perceive that the person who is appointed chairman of the Electoral Distribution
Commissioners has taken his pitch of politics with him. No matter which court the judge or retired judge who
fills that position comes from, I suggest with almost 100 per cent certainty that a future opposition will feel that
it has been dudded. I am not totally in favour of what the Liberal Party has suggested. However, I ask the
Minister for Electoral Affairs to consider tightening the provisions of the bill. The minister has been a member of
an opposition; therefore, he knows that what I am saying has some validity. Perhaps the pool of people from
which the person is chosen could be smaller.
Ms S.E. Walker interjected.
Mr M.W. TRENORDEN: I am prepared to listen to different suggestions. This is a huge negative, but I can
remember when Peter Dowding was sitting in the Premier’s chair and Barry MacKinnon was sitting in the
Leader of the Opposition’s chair. Peter Dowding—I like Peter Dowding; this is nothing personal against him—
leaned forward and asked what Barry MacKinnon thought of such and such taking on a particular role. Barry
MacKinnon asked him what he was talking about, to which Peter Dowding told him that he had just been
consulted. We must ensure that we have a robust system.
Unlike the member for Nedlands, I have not put on my thinking cap to work out a solution. Perhaps the Chief
Justice or someone else could nominate a person. No matter how pure of heart the Premier of the day is, the
opposition will become paranoid when he or she puts forward a name. I am pleading with the minister to look at
using a mechanism that will take some of the paranoia out of the process. I am not sure whether the minister
heard what I said earlier, but I have sat on the opposition benches and have been in the middle of the paranoia
and have not known a single thing about the person appointed to that role. I make no comment now about that
person’s impartiality, but I listened to all the panic about the process. That is not healthy in a democratic process.
I would be happy to support the bill, but I would prefer not to support the current process. I would like the
minister to give some consideration to tightening that process. I say for the third time that a paranoid opposition
is not a good thing.
MR J.A. McGINTY (Fremantle — Minister for Electoral Affairs) [3.25 pm] — in reply: If a paranoid
opposition is not a good thing, what does the member for Avon say about the current opposition?
Some important issues have been raised in dealing with how to get a judicial officer or a former judicial officer
to chair the Electoral Distribution Commissioners. The broad intent of the legislation was to replace the Chief
Justice in that role, because he does not want to do it and because he thinks that, in principle, it is a bad thing for
him to undertake that role. I share that view, because this situation is unique in Australia. We must make sure
that there is confidence in the appointment process. I do not share the opposition’s view that members or former
members of superior courts should be excluded from appointment to that role. That is the import of the
amendments the Leader of the Opposition has foreshadowed. He thinks that District Court, High Court, Federal
Court and Family Court judges should not be allowed to take up that position. I do not agree with that view.
[2]
Extract from Hansard
[ASSEMBLY - Thursday, 12 June 2008]
p3794b-3797a
Acting Speaker; Mr Christian Porter; Mr Max Trenorden; Mr Jim McGinty; Speaker
Anyone who has been appointed as a judge of a superior court ought to be among the pool of people to whom we
give consideration. The best recent example I can think of was the appointment of former Chief Judge Kevin
Hammond to the most important position of head of the Corruption and Crime Commission. He was the
inaugural chair of the CCC. In my view, we could not have found a better person.
Mr M.W. Trenorden: You consulted me at the time and I agreed.
Mr J.A. McGINTY: Yes, I remember that. I cannot think of a more appropriate person. Had we limited that
appointment to judges of the Supreme Court, we would have missed out on the ability to appoint the initial chair,
who conducted his office with great dignity.
Mr C.C. Porter: That is a substantively different position from the chair of the Electoral Distribution
Commissioners.
Mr J.A. McGINTY: I have not said that they are substantially similar. All I am saying is that by keeping open
the option of taking people from other superior courts, we broaden the pool of people from whom we can get the
best person. Western Australians have been appointed as High Court judges. Nobody should argue that those
Western Australians who reached the peak of the judiciary would be inappropriate to appoint to this role once
they have relinquished their office.
Mr M.W. Trenorden: But you know that in the case of the High Court, both sides of Parliament argue about the
other side’s appointments. That is a fairly regular event. One of the difficulties of being a High Court judge is
that such a person is appointed in the term of one administration or another.
Mr J.A. McGINTY: I disagree. I think only two Western Australians have ever been appointed to the position
of High Court judge. One was John Toohey, and I doubt there would be any argument if he were proposed for
this office. The other was a former human rights commissioner and the author of the “Bringing them home”
report, Sir Ronald Wilson. Both are men of great integrity. I would not want to exclude such people from the
pool when they cease to hold the office of High Court judge.
Mr T. Buswell: The point is that it is not necessarily the ones we would not like to exclude from that pool but
the ones we would not like to be included.
Ms S.E. Walker: Who would you not like to be included from the Family Court or the District Court?
Mr J.A. McGINTY: I cannot think of anyone I would want to exclude.
Ms S.E. Walker: What you’re doing is excluding someone like Antoinette Kennedy. That is not right at all. I
think she is a person of the highest integrity and impartiality. I think it is a slight on her to say it is a bit of a
worry. It is not.
Mr J.A. McGINTY: We have Federal Court judges based in Western Australia who, generally speaking, are
Western Australians. They have local knowledge and are part of one of the superior courts of Australia. Again, I
would not want to exclude them from consideration. The objective is to always make the best decision from
within the available pool of judicial officers from superior courts. Currently, it has to be whoever the Chief
Justice is. I happen to think our Chief Justices have done us proud in this area over the years. Nonetheless, I
make this point to the member for Avon: I am not inclined, for those reasons, to support the amendment
foreshadowed by the Leader of the Opposition to reduce the pool of people from among whom we can choose to
Supreme Court or former Supreme Court judges in Western Australia. I think that would limit our choice too
much.
An idea for which I have some sympathy—a number of members have touched on it in various ways—is that of
ensuring that the appointee is effectively a nominee of the Chief Justice. I think that would go a long way
towards overcoming the paranoia, as the member for Avon describes it. I am interested in looking—over the
weekend; I do not propose that we go into consideration in detail on this bill now—at whether there is a way to
deal with this matter with which the Chief Justice might agree, because he might take the view that his
involvement in the appointment process, as distinct from being consulted about it, might in some way or other
cut across the judicial independence argument. I simply do not know the answer to that.
Mr M.W. Trenorden: A panel of three could come up with the nomination; it need not have to be only the
Chief Justice.
Mr J.A. McGINTY: A panel is one way to deal with it. There are a variety of mechanisms. I think we all want
the same thing, which is to ensure that the nominee is a person who is not subject to political appointment.
Mr M.W. Trenorden: I will make one more comment and then be quiet. I accept the argument made by the
member for Nedlands, but I mentioned tightening the process for the reason that it is a question of who you
know. The higher the profile of the judge, the more I know about them. That is really what I am saying. I totally
agree that there are very competent people in some of the higher profile courts, but they are other people that I
do not have any knowledge of.
[3]
Extract from Hansard
[ASSEMBLY - Thursday, 12 June 2008]
p3794b-3797a
Acting Speaker; Mr Christian Porter; Mr Max Trenorden; Mr Jim McGinty; Speaker
Mr J.A. McGINTY: One mechanism might well be to make the proposed appointee a nominee of the Chief
Justice, recommended by the Premier to the Governor for appointment. That is one way in which to put the
appointment process back in the hands of the Chief Justice, whom we are removing from the process. There is
also the possibility of a panel of names. There is a variety of mechanisms we can look at. All I am saying to
members is that if we can look at reworking this formulation and return to consideration in detail next week, we
will hopefully be able to come up with a formulation that will keep people happy. With those few comments, Mr
Acting Speaker, I commend the bill to the house.
The ACTING SPEAKER: The question is that the bill be read a second time. As stated in the ruling, an
absolute majority is needed.
Bells rung and the house divided.
The SPEAKER: I gave a ruling to the Acting Speaker, which was worded as follows —
I advise members that the Electoral Amendment Bill 2008 affects the one vote, one value provisions in
the Electoral Act 1907, specifically sections 16A and 16B. Section 16M of the Electoral Act 1907
provides that bills that amend those provisions require an absolute majority of the whole number of the
members of the house at the second and third reading stages.
As a result of that ruling, at the end of the second reading debate the bells were rung and the house is divided in
relation to those supporting and those against the second reading. I appoint the member for Geraldton as teller
for the ayes to determine those who support the bill, and the member for Serpentine-Jarrahdale as teller for the
noes.
The division resulted as follows —
Ayes (28)
Mr P.W. Andrews Mr J.N. Hyde Mr A.D. McRae Mrs M.H. Roberts
Mr J.J.M. Bowler Mr R.C. Kucera Mrs C.A. Martin Mr D.A. Templeman
Mr A.J. Carpenter Mr F.M. Logan Mr M.P. Murray Mr M.W. Trenorden
Dr E. Constable Ms A.J.G. MacTiernan Mr A.P. O’Gorman Mr P.B. Watson
Dr J.M. Edwards Mr J.A. McGinty Mr P. Papalia Mr M.P. Whitely
Ms D.J. Guise Mr M. McGowan Mr J.R. Quigley Mr B.S. Wyatt
Mrs J. Hughes Ms S.M. McHale Mr E.S. Ripper Mr S.R. Hill (Teller)
Noes (16)
Mr C.J. Barnett Mr J.H.D. Day Mr D.T. Redman Ms S.E. Walker
Mr T.R. Buswell Mr R.F. Johnson Mr G. Snook Mr G.A. Woodhams
Mr G.M. Castrilli Mr J.E. McGrath Dr S.C. Thomas Dr J.M. Woollard
Mr M.J. Cowper Mr C.C. Porter Mr T.K. Waldron Mr A.J. Simpson (Teller)
Pairs
Ms M.M. Quirk Mr P.D. Omodei
Mr J.C. Kobelke Ms K. Hodson-Thomas
Absolute majority not achieved; question thus negatived.
Bill defeated.
[See rescission motion on page 3800.]
[4]