Blink And You Miss It

West Australian, 12th December 2014

A very important development rates only four short paragraphs in the West Australian - but at least it wasn't buried at the foot of the page as some previous local government so-called reform news items have been. I congratulate the City of Subiaco Council for continuing to stand up for the rights of their community and democracy.

There are some very serious issues arising from the Chief Justice's ruling of 25th November that have to be tested if democracy and the rule of law are to have a chance of survival in this State.

This is uncharted territory. The Local Government Act has never before been used for such a complex set of changes - indeed, it was never intended to do so.

Although there has been nothing to stop the Minister seeking Governor's Orders for those recommendations not subject to a poll, the Subiaco appeal makes this extremely problematic for Simpson as any such orders would conflict with the result of a successful appeal.

In any case, to seek some Governor's Orders would leave some awkward situations should any or all of the polls get a binding outcome to reject. There could be substantial areas of Canning, Melville and Cockburn and some other small areas not then covered by any local government.

Now that Subiaco has decided to appeal, the lawyers will need to deal with the State Solicitor's Office and the Minister with regard to timing of Governor's Orders. This would also need to cover all of the recommendations either directly or indirectly (ie by precedent) affected by the appeal, which is all of them in one way or another. How this would be dealt with will depend, to a large extent, on how the Court interprets section 9.65 of the Act - Para (2) states that orders can be revoked but para (3) states that an order is valid even if parts of the Act have not been complied with.

I would hope that the Government would see the sense in holding off on Governor's Orders until the appeal is finalised, because the alternative is a real mess - not to mention loss of face. However, it has placed such huge emphasis on its timetable to have new local government operating at 1st July 2015 that to delay pending the appeal (which I believe would be unlikely to be heard before March/April) would itself be a huge backdown.

The Government has, indeed, got itself between a rock and a hard place.