Alan Davies, of the Urbanist this its likely and Napthing should not sign contracts before the election. Read his latest post on crikey.com
Much of the public focus is on what Labor would do about Melbourne’s East West Link if it were to win the election, but the key responsibility lies with the Napthine government; it shouldn’t sign any contract
Now that Victorian Labor has supposedly “reneged” on its undertaking to honour any contract for the proposed East West Link motorway signed prior to the election, the Napthine government’s keystone project for Melbourne looks like a dead duck (e.g. see here, here, here, and here).
The Premier, Denis Napthine, nevertheless insists he’ll still sign the contract before the caretaker period starts, but according to the polls he might not be in office after the 29 November 2014 election to implement it.
The government is in any case starting from behind due to the 2013 redistribution. On the old boundaries, there needed to be a 1.2% uniform swing for it to be thrown out by voters; now the figure is 0.9%.
Opposition Leader Dan Andrews says he has legal advice that if the current Supreme Court challenge to the project brought by Moreland and Yarra councils succeeds, it will render any signed contract unenforceable.
The Councils are seeking a declaration in the Supreme Court that the decision of the Minister for Planning to approve the eastern section of the East West Link under s77 of the Major Transport Projects Facilitation Act is invalid.
Labor has advice from two eminent QCs and a contract law expert that states:
In the event that the Supreme Court holds that the approval decision made by the Minister for Planning on 30 June 2014 is invalid, there is no power to enter into contracts for the Project and any contract entered into will be beyond power and unenforceable.
The case is due to be heard after the election, on 12 December. Mr Andrews says an incoming Labor government would not defend the councils’ challenge, increasing the likelihood it would succeed and hence render any signed contract invalid (although the government might still be liable to compensate the winning contractor).
But there are a couple of reasons to be cautious about assuming the East West Link is dead in the water.
First, the government might get back. The election campaign still has to be played out and it’s common for Governments to reduce the gap in the polls by election day.
Further, voters are reluctant to throw out governments after only one term. AsAntony Green notes, a first term government has never been defeated in Victoria since 1955. In fact there’ve only ever been three one-term governments in mainland Australia in the last 40 years. (1)
The last one was Qld’s Borbidge government, which was in office from 1996 to 1998. The circumstances though were peculiar – the new One Nation party was a key problem for the government; the joint Federal-State gun buyback was made law; John Howard was pushing the GST; and the Opposition was led by the charismatic Peter Beattie. (2)
Second, even if it were to win the election, Labor’s presumption that the councils will automatically win in the Supreme Court if the government of the day doesn’t defend the case is open to question.
Crikey’s Guy Rundle argued last week he’d seen legal advice establishing that recent Supreme Court cases show “that the mere lack of defence does not guarantee the suit will fail”. Nor does Labor’s legal advice say anything about the strength of the councils’ case.
There is still scope, he says, for third parties to take up the defence of the case:
Such a third party could be one of the contracting parties such as East West Link, or one of the contractors engaged to build the link. Alternatively, it could be an interested body such as the RACV or the Australian Motoring Enthusiasts Party, or an individual.
The public focus on what Labor might do if it were to win the election has deflected attention away from where the key responsibility lies: with the Napthine government. It’s insistence on signing is the source of the problem.