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Wednesday, 23 October 2002
Page: 5699


Senator JOHNSTON (12:45 PM) —I rise to discuss as a matter of public interest the situation in Western Australia which arose recently following the demise of the timber industry in that state. People living in rural and regional Western Australia are currently enduring a sustained and vindictive attack, if I may say so, upon their standard of living such as has not previously been seen in my state.

By way of example I point to the formerly thriving communities of Manjimup and Pemberton in the south-west of Western Australia. The Premier of my state, with one stroke of the pen, has devastated Manjimup and the lives of timber workers throughout the entire south-west of my state, but particularly in Manjimup, when he slashed timber quotas in that region. Everyone, including the timber working families of Manjimup, realises that our old growth forests must be preserved for future generations. But that preservation can be achieved through a reasonable program to phase out the logging of such forests with a gradual and less traumatic shift to value adding and plantation industries.

The reality is that my state Premier does not care at all about WA's rural and regional communities. I have been to Manjimup twice since being elected to this place. The leader of my state parliamentary party, Mr Colin Barnett MLA, has visited Manjimup five times since the last state election. Mr Gallop is yet to go there, notwithstanding his quite capricious actions regarding the livelihood of the people living in these communities.

I have observed first-hand, with the assistance of the Hon. Paul Omodei, the very hard-working and popular member who represents that local community, just how resilient and committed the people of Manjimup and Pemberton are to their communities and to the region generally. In the face of the loss of many millions of dollars in annual investment and of hundreds of jobs through the decimation of the timber industry, this community is bouncing back, I am pleased to advise the Senate. There is renewed energy in the area of export horticulture. This region exports potatoes into South-East Asia and cauliflowers into Singapore, Thailand and Malaysia. Avocados, wine, apples and other horticultural products are all being exported from this region. Traditional agriculture is thriving, thanks to beef and sheep. Plantation timber is coming along, and tourism is slowly but surely developing, permitting a recovery from this government induced disaster.

In these circumstances, I am drawn to ask just how many times the Premier of my state has visited this community and shown concern for the livelihood of these people. The answer, of course, is: not once. However, since being elected, he has been to China, Dubai, the United Kingdom and other places with an international address. It seems that, clearly, he has a great deal more concern for people living over there than he does for those living in his own state.

The contempt shown for the hard-working people of country Western Australia is all played out against the backdrop of a further and more insidious assault upon rural and regional communities. That assault is in the form of the repeal of the Electoral Distribution Act. Since the mid-1970s the Australian Labor Party in Western Australia has used every possible occasion when it has been in power to seek to introduce changes to the electoral arrangements of my state. It was therefore no surprise when the current Western Australian state Labor government set out to introduce one vote, one value alterations by undertaking a movement of eight seats from the country to the metropolitan area. The changes were going to alter the balance between metropolitan and country seats from 34-23 to 41-15.

It is no surprise that various people allied together to oppose the alteration to the state's electoral laws and expressed their determination to fight those changes. They formed the Country Alliance, which took the matter, with the Clerk of the Legislative Council of Western Australia, to the full court of the Supreme Court.

The crucial legislation was the Electoral Distribution Act, which was to be repealed to inaugurate these changes. There were two potential problems for the government. Firstly, section 13 of the act had entrenchment provisions. Section 13 stated:

It shall not be lawful to present to the Governor for Her Majesty's assent any Bill to amend this Act, unless the second and third readings of such Bill shall have been passed with the concurrence of an absolute majority of the whole number of the members for the time being of the Legislative Council and the Legislative Assembly respectively.

The government had no difficulty in the Legislative Assembly. However, it had a 16-17 ratio in the upper house. The government actually had 18 seats in the upper house. However, one of those seats was occupied by the President and, of course, under the Constitution Act of 1899 the President of the Legislative Council of the Parliament of Western Australia does not have a deliberative vote, only a casting vote. The government asserted that a vote of 17-16 was sufficient to meet the terms of the Electoral Distribution Act, which sought simply to repeal the previous entrenchment provisions.

The other question which arose from section 13 of the act was that the words seemed to suggest that the law could be broken if the legislation, passed in this way, were to be presented for royal assent. The interesting legal aspect that flowed from this was the position in which that left the Clerk of the Legislative Council, Mr Laurie Marquet, with respect to the passing of the law in these circumstances. Marquet himself actually referred the matter to the full court of the Supreme Court of Western Australia for determination. Liberal parliamentary legal affairs spokesperson and former Attorney-General Peter Foss suggested that, at the very least, the government had put Marquet in a difficult and precarious position. He stated that if the bill had received vice-regal approval, the Clerk may have been, or could have been, facing criminal charges if the law were subsequently struck down. This would have been on the grounds of it having been found not to have been properly passed. Mr Marquet's referral sought a determination from the full court, as I said, as to the legitimate passing of this repeal act.

In the unreported decision handed down last Friday week—the case is Marquet Clerk of the Parliaments of Western Australia v. The Attorney-General of Western Australia and Anor, 2002, WA Supreme Court, 277—a 4-1 majority rejected the view that the simple majority of 17-16 met the provisions of section 13 of the Electoral Distribution Act. As Mr Justice Steytler and Mr Justice Parker stated:

It is clear that the entrenchment provision in s.13 was not enacted for its own sake. As indicated there was a purpose for its enactment and that purpose, in our view, is material to understanding the intended meaning of its terms. It is also relevant to the understanding of this purpose, and to the interpretation of s.13 that, in the absence of a fundamental change to the manner of constituting the Houses of the Houses of Parliament, the 1947 Act could not be repealed, in the sense of finally revoked or annulled, and not replaced.

The legislative purpose for the enactment of s.13 is therefore to be perceived from the viewpoint that it was intended to entrench the provisions of an Act which dealt with an essential and politically important aspect of the process by which the Houses of Parliament are constituted, and was enacted in the expectation that there must always be legislation on that topic.

This discourages any narrow understanding of the intention of Parliament when it used the word `amend' in s.13. It is strongly indicative, that the purpose of s.13, which its language was intended to achieve, was to protect or `entrench' the provisions of the 1947 Act from change, except in circumstances where the requirements of s.13 were satisfied. Whether, as a matter of form, change was effected by some alteration of the existing provisions, or by their complete repeal and re-enactment incorporating the desired change, would appear to be of no materiality in the context of such an intention. `Amend', in our view, should be interpreted accordingly.

That is to say, of course, that to simply drive around the entrenchment provisions by amending the act was unconstitutional. It is, therefore, with some great relief for regional Western Australians that the Supreme Court decision was handed down, as I say, last Friday week. In its wisdom, the court found 4-1 that the democratic principles of the Legislative Council were being abrogated by this piece of legislation.

The Western Australian Attorney-General, who is vested with the onerous responsibility of upholding the law and democratic principles in that state, was attacking the constitution he was bound by his office to defend. The Attorney-General's actions were found to be unlawful. He, along with the Premier of Western Australia, must bear the responsibility for the undermining of the Western Australian constitution and its parliamentary systems. The position of the Attorney-General is now plainly and obviously untenable, given the decision of the Supreme Court. I pause to observe that this Attorney has a long and thankfully unsuccessful track record with respect to the prosecution of this issue. He has attacked with zeal the constitutional electoral framework of my state for the past seven years. It has become the major focus of his political life.

Four judges of the Supreme Court have now confirmed that he was wrong to pursue legislative change through underhand and backdoor legislative strategies. He has already been warned by the highly regarded Clerk of the House, Mr Laurie Marquet, that his parliamentary tactic of trying to circumvent the legitimate legislative process was flawed, but he ignored this warning and pressed on. Further to this, there were numerous precedents that would have told him that what he was proposing was wrong. The Supreme Court reminded him of these precedents when telling him that he was so very wrong. It is of considerable concern to realise that Western Australia has an Attorney-General prepared to ignore sound advice and reasonable warnings in the pursuit of an ideological objective. I have no doubt that, given the level of obsession, further scarce resources will be committed to an appeal of this decision.

The current system of how Western Australians are elected to the Legislative Council has been put in place for very good reason. Western Australia is a large and vast state with, if not the biggest, one of the largest electoral territories in the world. It is 3,000 kilometres from the north of the state to its most southern point. From South Australia and the Northern Territory borders to the west coast it is close to 2,000 kilometres. Coupled with a large population mass that is centred on the capital city of Perth, it is inconceivable that there should be an electorate system that would allow the people living in an area that represents less than one-tenth of one per cent of the landmass of the state to have vastly disproportionate electorate representation in the parliament of Western Australia.

If the Labor government in Western Australia had been successful with its chicanery, we would have one electorate that stretched 2,000 kilometres from Coral Bay on the west coast to the South Australian border on the east side of my state. Four of the country electorates would have been individually larger than the entire state of New South Wales. This would be clearly unfair and would have denied effective representation to a significant number of Western Australians. What was suggested by this legislation was that one member of parliament would be able to travel for a day and a half through his electorate and still not reach the other side.

The Western Australian Labor government has reportedly wasted $3 million in lawyers' fees on this bid which, on anybody's reading of the argument, was always going to fail. It would not be beyond the realm of possibility that the all-up cost of this little foray into the electoral reform process is going to cost something like $9 million—an abhorrent waste of taxpayers' funds. Western Australians have rallied to the cause to protect their rights and to protect their right to representation—and decent representation. Of course, senators who come from states such as Tasmania, where you can virtually look across to the other side of the whole island from any high point—have absolutely no concept of what it is like.


Senator Forshaw —What about New South Wales? Talk to Peter Black.


Senator JOHNSTON —For the benefit of the learned senator from New South Wales, I have just cited the fact that under this electoral system we would have had four country electorates each the same size as that one state. I am certain that some of the senators opposite have never even traversed the regions of their own state to see how vast they are.

The Western Australian Attorney-General has not accepted this humiliating defeat. David has taken on Goliath and won. He plans now to present a further amendment and a further law to the parliament—that is, he wants to give the President of the Legislative Council a deliberative vote. This is in the face of a number of citations by his own Premier who, when such a proposal was made in 1997, as reported in the West Australian of 21 January 1997, declared that it was `a cynical attempt to subvert the will of WA voters'. It was not so cynical for them now to purport to achieve exactly the same purpose. Let us look at what that really means. Harry Phillips, politics professor at Edith Cowan University, said:

Changing the law to give the President a deliberative vote was an unacceptable break with convention.

Further to that, David Black of Curtin University said:

Any change to the president's voting rights would be subject to legal challenge and posed a political danger to the Government.

That is not enough for this Attorney-General. He wants to push on; he has no concept of the convention of this parliament and seeks to undermine it. He has previously lost 4-2 in the High Court; he has now lost 4-1 in the Supreme Court. It is clear that he is going to press on with this foolhardy zealotry when, of course, he should be saving the time and money of the taxpayers of Western Australia.