The Age: Labor says no to the tunnel, but uncertainty remains, November 23, 2014, Farrah Tomazin
Mixed messages about the East West Link arouse voter suspicions. Farrah Tomazin reports.
It could go down in history as the turning point of the 2014 state election: the high-stakes gamble that defined an Opposition Leader and set a clear battleline between the two major parties.
But more than two months after Daniel Andrews sweated his way through a heated press conference to declare that Labor would dump the East West Link, uncertainty remains about the will and the way.
The Greens claim Labor is outsourcing its decision to the courts. The Liberals say Andrews can’t be trusted, full stop. And residents whose homes are in the path of the proposed tunnel – and whose lives have been in limbo all this time – simply want certainty.
Part of the suspicion around Andrews’ position has been the mixed messages he occasionally sends when asked to explain how the East West Link would not happen under any circumstance should Labor win Saturday’s election.
In a recent interview with ABC’s Jon Faine, the Labor leader declared the road “will not be built” under an Andrews government, but didn’t elaborate how when pressed. In a subsequent interview with The Sunday Age, he dead-batted questions on what would happen if the Supreme Court did not invalidate the project, sticking with Labor’s mantra that the contract “isn’t worth the paper it’s written on”.
And on Friday, wire service AAP ran a story in which Andrews didn’t rule out revisiting the idea of an “East West Link-type connection” if Infrastructure Victoria – an independent advisory board Labor plans to set up in government – recommended such a project in the future.
“The difference is that you’d have a transparent process and the business case would be public, not the secrecy and the botched, rushed nature of this project,” he told AAP.
Part of the confusion, too, is that Labor’s “message” about reneging on contracts for the East West Link has rested largely on a case to be brought before the Supreme Court by Yarra and Moreland councils next month.
The councils argue that the contract is invalid because Planning Minister Matthew Guy failed to meet key legislative requirements when he approved it in June. An Andrews’ government would support the council’s case rather than defend the project. Under these circumstances, Labor says, the councils’ legal challenge would likely succeed.
But what if it doesn’t? Andrews might have legal advice saying the contract as it now stands is invalid, but legal advice, by its very nature, can always be challenged – even when it comes from an eminent team led by former Federal Court judge Ray Finkelstein.
Indeed, The Sunday Age has seen separate advice suggesting there is also scope for a third party – such as one of the contractors engaged to build the link – to take up the defence of the case, even if Labor doesn’t.
Furthermore, the Finkelstein memorandum also warns that even if the contract is deemed invalid, “none of this is to say that there is no remedy for harm that might be caused to the contractors.” The level of compensation remains unclear.
Australian National University law professor Nicholas Seddon, an expert on government contracts, points out that Labor could always legislate to cancel the contract – including the $500 million “kill fee” and other compensation arrangements. He admits it’s a big move, and one that governments are reluctant to take because of sovereign risk, but adds: “If they had a principled stand, that’s what they should do, not just rely on what the court says.”
Asked about this option, Andrews returned to a well-worn line: “Labor’s advice is the contract is not worth the paper it’s written on.” He was, however, much clearer when asked if he could guarantee that the road would not be built under any circumstance, should he win government. “Yes” came the one-word reply via a statement.
While there’s nothing new in politicians breaking promises, even the most cynical observers admit it would be political suicide for Labor to renege on its word given the East West Link has now become the clear battleground at this year’s poll. Doing so, to paraphrase one insider, would be like Steve Bracks’ no-tolls-on-the-Scoresby freeway backflip after the 2002 election – but “on steroids”. The backlash would be so immense Labor might as well kiss the inner city goodbye.
Nonetheless, the Greens don’t buy it. Victorian leader Greg Barber says he doesn’t trust Labor’s position on several fronts: the fact that shadow treasurer Tim Pallas “was the tunnel’s chief promoter under Brumby”; the “insatiable” appetite of the roads industry for new projects; and his prediction that “the company with the contract to build the tunnel will intervene in the court case to protect their right to compensation.”
Others are slightly more hopeful, but not entirely convinced.
“There have been a number of people who have sold their house because they think the tunnel is going to go ahead,” says Stephen Jolly, a Yarra councillor and Socialist candidate for the Labor-held seat of Richmond. “If Labor had told them their position six or nine months ago, they wouldn’t have done that.”
Northern Metro community independent candidate Peter Allan, who has fought against the tunnel in his local community for months, also cites the “personal toll” the issue has taken on residents.
“We don’t want to get past the election and then have another 12 months of ‘will he or won’t he’,” says Allan. “It needs some finality.”