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Martin v Electoral Districts Boundaries Commission

Martin v Electoral Districts Boundaries Commission

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SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
MARTIN v ELECTORAL DISTRICTS BOUNDARIES COMMISSION
[2017] SASCFC 18
Judgment of The Full Court
(The Honourable Chief Justice Kourakis, The Honourable Justice Kelly, The Honourable Justice Blue, The Honourable Justice Bampton and The Honourable Justice Hinton)
10 March 2017
STATUTES - ACTS OF PARLIAMENT - INTERPRETATION - RULES OF CONSTRUCTION - GENERALLY
CONSTITUTIONAL LAW - CONSTITUTIONAL AMENDMENT - STATES - SOUTH AUSTRALIA
CONSTITUTIONAL LAW - THE NON-JUDICIAL ORGANS OF GOVERNMENT - THE LEGISLATURE - ELECTIONS AND RELATED MATTERS - ELECTORAL DISTRICTS AND REDISTRIBUTION
Appeal against electoral redistribution order by the Electoral Districts Boundaries Commission.
On 7 December 2016, the Commission made an order effecting an electoral redistribution under section 82 of the Constitution Act 1934. In broad terms, the redistribution involved the 6 large outer rural districts having elector numbers of the order of 7% below average; the 7 semi-rural districts having elector numbers of the order of 3% below average; and the 34 urban districts generally having elector numbers slightly above average.
Subsection 77(1) of the Constitution Act requires that upon a redistribution the number of electors comprised in each electoral district must not as at a date specified in the order not earlier than 6 months beforehand vary from the average number of electors across all districts by more than 10 per cent. Subsection 83(1) requires the Commission to ensure as far as practicable that, if candidates of a particular group attract more than 50 per cent of the popular vote, they will be elected in sufficient numbers to enable a government to be formed. Subsection 83(2) requires the Commission to have regard to five enumerated factors and it may have regard to any other matters it thinks relevant.
The Commission delivered a report in which it explained its methodology. It rejected a submission by the Labor Party that section 77 of the Constitution Act required it to make a redistribution on the basis that all electoral districts should have approximately the same number of electors and the 10 per cent tolerance mentioned in section 77 only exists because it may not be possible to draw boundaries to achieve equality of numbers. The Commission said that nevertheless the notion of ‘one vote, one value’ remained a relevant consideration throughout its work.
The Commission found that, having regard to election results over the last 40 years, there was an innate imbalance against the Liberal Party caused by voting patterns in South Australia upon which had been imposed successive redistributions as a result of which the Liberal Party could win a significant majority of State-wide votes but not win a majority of seats. The Commission referred to an argument by the Labor Party that the imbalance was a function of poor placement of resources at the last election but said that there was no evidence that this occurred.
The appellant appeals against the redistribution order pursuant to section 86 of the Constitution Act on the ground that the order was not duly made…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] SASCFC 18
Decision Date: 10 March 2017

CaseChat Overview and Summary

The appellant, Martin, appealed to the Full Court of the Supreme Court of South Australia against a decision of the Electoral Districts Boundaries Commission. The dispute concerned the Commission's finding that there was no evidence before it to support the proposition that the Liberal Party's strategically poor placement of resources during the 2014 election campaign had elevated its two-party preferred vote without increasing the number of seats won. The appellant contended that evidence from Mr Hamilton-Smith and Professor Macintyre did support this proposition.

The primary legal issue before the Court was whether the evidence provided by Mr Hamilton-Smith and Professor Macintyre, when considered in its proper context, actually constituted evidence of the specific proposition relied upon by the appellant. This involved an analysis of whether their testimony demonstrated, first, the placement of resources by the Liberal Party in marginal versus safe electorates, secondly, that this placement was strategically poor, thirdly, that it inflated the two-party preferred vote, and fourthly, that it did not lead to an increase in seats won.

The Court reasoned that the passages cited by the appellant from Mr Hamilton-Smith's testimony, when read in their full context, did not support the complex proposition. Mr Hamilton-Smith's remarks, particularly those concerning campaigning strategies and representation in marginal seats, were part of a broader discussion about why the Liberal Party struggled to win a majority of seats despite winning a majority of votes. The Court found that his testimony identified several reasons for this struggle, including a lack of party platform, a "low target, small profile strategy," and insufficient diversity, but these were distinct from and outside the scope of the Commission's specific finding concerning the "poor placement of resources." The Court concluded that the testimony, when properly understood, did not provide evidence for the four components of the proposition as required.

Given that the Court found no error in the Commission's initial finding regarding the absence of evidence, it determined that it was neither necessary nor appropriate to consider the appellant's further contentions. Accordingly, the appeal was dismissed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The appellant contends that the impugned statement is wrong because such evidence was given by Mr Hamilton-Smith and Professor Macintyre. Mr Hamilton-Smith was the leader of the Liberal Party between 2007 and 2009 and Deputy Leader for one week in 2010. He became an independent in May 2014 and accepted appointment by the Labor government as Minister for Investment and Trade, Defence Industries and Veterans’ Affairs. Professor Macintyre is an Emeritus Professor of Politics at the University of Adelaide.The evidence of Mr Hamilton-Smith and Professor Macintyre The first issue is whether there was in fact evidence given by Mr Hamilton-Smith and Professor Macintyre that poor placement of resources during the 2014 election campaign by the Liberal Party elevated its two-party preferred vote without increasing the number of seats won. This issue involves a complex proposition that there was evidence before the Commission first, of the placement of resources by the Liberal Party during the 2014 election campaign as between “marginal” electorates and “safe” electorates; secondly, that the placement was strategically poor; thirdly, that the strategically poor placement elevated the Liberal Party’s two-party preferred vote; and fourthly, that the strategically poor placement did not increase the number of seats won. The appellant relies on two passages from the testimony given by Mr Hamilton-Smith and Professor Macintyre as evidence of this complex proposition. When considered in context, the testimony is not evidence of that complex proposition. The principal passage relied on by the appellant from the testimony given by Mr Hamilton-Smith is as follows:I think it’s a matter too of how you campaign. An extended, or a friend of the extended family living in the seat of Elder, who is Muslim, pointed out to me that, at the local mosque within the seat of Elder, Labor Party representatives had visited the mosque on three occasions to speak with the community, lobby with the community, and appeal for votes, while the Liberal candidate had not been once. You know, you need to get out – you need to have a structure on the ground in the marginal seats. You need to have representation in the marginal seats. You need to have people pitching for you in the marginal seats that look and feel like that community, and I think this is an area where the Liberal Party struggles, and there is a risk. This passage, considered in isolation, does not comprise evidence of any of the four components identified above of the complex proposition considered by the Commission. In any event, it is necessary to consider this passage in context. The passage relied on by the appellant formed part of a lengthy passage of testimony by Mr Hamilton-Smith extending over two pages of transcript in which he posed the question “why the Liberal Party has struggled to win a majority of seats whilst winning a majority of the votes”. Mr Hamilton-Smith identified several reasons why this may be the case. First, the Liberal Party lacks a party platform. Secondly, the Liberal Party has favoured a “low target, small profile strategy”, effectively waiting for the government to lose. Thirdly, the Liberal Party has not had sufficient cultural and gender diversity. Fourthly, the Liberal Party has focused on its safe seats and not broadened its appeal into the marginal seats. The first three matters were outside the scope of the Commission’s finding of no evidence which was confined to “poor placement of resources” and did not extend to platform, policies and diversity.

Decision

Reasons for decision

Given the conclusions reached above, it is neither necessary nor appropriate to express a view on these contentions. In the absence of this Court finding error in the first place, there is no context in which these contentions could be considered.Conclusion The appeal should be dismissed.

Ratio Decidendi

Legal Principle Established

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